Viswanatha Shetty K. vs Ummakke and Others

Civil Revision Petition No. 1444 of 1979 is by original respondent-7 and is directed against the order dated 28-2-1979 in Final Decree Proceedings No. 3 of 1976 (Original Suit No. 119 of 1975) passed by the Principal Munsiff, Puttur, rejecting I.A. Nos. VI &VII filed by original respondent-7 praying for referring the final decree proceedings to the Deputy Commissioner.

Civil Revision Petition No. 1712 of 1979 is directed against the order dated 6-4-1979 passed by the Munsiff, Sullia, on I.A. No. XVIII in Original Suit No. 17 of 1972, on his file, ordering that the properties be divided in accordance with the decree by appointing a Commissioner as directed in the preliminary decree.

In both these civil revision petitions, a short question of law of some importance is involved and it is this viz., "Whether under S. 54 of the Code of Civil Procedure, it is for the Collector to bring about the partition of the lands assessed to payment of revenue to the Government?"

Section 54 of the Code of Civil Procedure reads:

"Partition of estate or separation of share. Where the decree is for the partition of an undivided estate assessed to the payment of revenue to the Government, or for the separate possession of a share of such an estate, the partition of the estate or the separation of the share shall be made by the Collector or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with the law, if any, for the time being in force relating to the partition, or the separate possession of shares, of such estates."

Thus, it is obvious that the section refers to the partition of an undivided estate assessed to the payment of revenue to the Government or for the separate possession of a share of such an estate. What is vexed, however, is the interpretation of the word ''estate'' used in the Section.

The High Court of Madras, in the case of Muttuchidambara v. Karuppa, ILR 7 Mad. 382 FB, by a Full Bench Decision, and in earlier decisions, has held that the term ''estate'' applies only to permanently settled estates and not to property temporarily settled such as property held under ''raiyatwari'' tenure.

A contrary view has been taken by the Bombay High Court. According to it the term ''estate'' applies even to property temporarily settled such as ''raiyatwari'' land, (Vide: I.L.R. XVI Bombay 528 : ILR 16 Bom. 528)

According to the Rangoon High Court, the Section is meant to be applied only to estates assessed to Government only in one lump sum for the whole estate and not to estates like the ordinary paddy lands in burma which are assessed at acre rates, (Vide: A.I.R. 1926 Rangoon 80)

The High Court of Calcutta has, however, pointed out in I.L.R. X Calcutta 435, that the word ''estate'' must be taken to be used in the section in its ordinary signification and not in the limited sense in which it may be used in other Acts.

Thus, we have at present mainly two schools of thought-one represented by the High Courts of Bombay and Calcutta and the other represented by the High Courts of Madras and Rangoon. The first school of thought points out that the term ''estate'' is not defined in the Code of Civil Procedure and, hence, the ordinary dictionary meaning shall be put to it. The Concise Oxford Dictionary, giving the meaning of ''estarte'' states, inter alia, thus:

"Person''s interest in landed property."

Thus, it is obvious that whenever land assessed to Government is to be partitioned, it can, be taken that Sec. 54 of the Code of Civil Procedure comes into play, whether the land is unalienated or not.

As against that, the High Court of Madras has interpreted the term ''estate'' as under the existing law in the Madras State, viz., the Madras Estate Land Act (Act No. I of 1908), which does not include the ''raiyatwari'' lands. It applies only to alienated lands. According to the Madras High Court, it applies only to ''Moolavargadar'' lands and not to ''Sarkari Gent Vargadar'' lands. In that view, in the erstwhile Presidency of Madras, the Civil Courts did not send for partition of ''raiyatwari'' land to Collector under Section 54 of the Code of Civil Procedure.

Subsequently, however, it is well known that when States were re-organized on linguistic basis, the South Kanara District, which was a part and parcel of the erstwhile Madras Presideney, came to be incorporated into Karnataka State under the States Reorganization Act, (Act No. XXXVII of 1956), and the Karnataka State gradually introduced uniform legislations for all the areas integrated and one such Act enacted is: ''The Karnataka Land Revenue Act, 1964, (Act No. XII of 1964)''.

''Statement of Objects and Reasons'' appended to the Karnataka LandRevenue Bill, 1962, reads:

"The Law relating to land and land revenue administration in the Mysore, Bombay, Hyderabad and Coorg areas have been codified inthe respective Land Revenue Codes or Acts. But, in the Madras Area, the administration of land and land revenue is being carried on under the Board''s Standing Orders and in accordance with about 23 enactments dealing with particular aspects of land and land revenue. Even though basically there are not material differences in principle among the several laws in force in the different areas of the State, it is desirable and administratively convenient to nave a uniform law governing land and land revenue administration for the entire State of Mysore. Hence this Bill."

Thus, it becomes clear that the Karnataka Land Revenue Bill was introduced with a view to effect uniformity in the law governing land and land revenue administration for the entire State of Karnataka.

In the Karnataka Land Revenue Act, 1964, S. 2 gives the definitions and S. 2(9) defines ''estate''. It reads:

"''Estate means any interest in land and the aggregate of such interest vested in a person or body of persons capable of holding the same."

This definition is identical with the definition of the term ''estate'' given in S. 3(5) of the Bombay Land Revenue Code, 1879. It reads:

"''estate'' means any interest in lands and the aggregate of such interests vested in a person or aggregate of persons capable of holding the same."

This definition is nearer to the Dictionary meaning of the term ''estate'', quoted above. It is, therefore, obvious that after the introduction of the Karnataka Land Revenue Act, 1964, the term ''estate'' is uniformly defined for purposes of the entire integrated area in Karnataka, including the South Kanara District. Since the very purpose of introducing the Karnataka Land Revenue Act is to bring about uniformity in Legislation throughout the State of Karnataka, it would be no longer open for the citizens of South Kanara to continue to think that the term ''estate'' in the South Kanara District should be understood in the sense in which it was used under the old Madras Act, referred to above.

In fact, the Supreme Court of India, in the case of Sri Ram Ram v. State of Bombay, AIR 1959 SC 459, at pages 467 and 468 has ruled in paras 30 and 31 of the judgment thus:

"30. As a matter of fact, the definition of ''Superior holder'' in S. 2(13) and the definition, of alienated in S. 2(20) of the Bombay Land Revenue Code, provisions of S. 111 in regard to revenue management of villages or estates not belonging tothe Government, of S. 113 with regard to the partition of estates and of S. 136 prescribing liability for revenue, amongst others refer not only to alienated lands but also to unalienated lands and the expression ''estates'' used therein can have reference not only to alienated lands but also to unalienated lands. If the definition of the expression ''estate'' in the context of the Code is thus clear and unambiguous as comprising both the types of lands, there is no reason why a narrower construction as suggested by the petitioners should be put upon the expression ''estate''. (See the observations of Kennedy LJ in 1915 1. KB 21 (supra) at P. 31 and the observations of this Court in Sailendre Narayan Bhanja Deo v. State of Orissa, AIR 1956 SC 346). Even if there was any ambiguity in the expression, the wider significance should be adopted in the context of the objectives of the Act as stated above.

We are therefore, of opinion that the expression ''estate'' had the meaning of any interest in land and it was not confined merely to the holdings of landholders of alienated lands. The expression applied not only to such ''estate'' holders but also to land holders and occupants of unalienated lands."

Thus, the Supreme Court ex cathedra has ruled that the expression ''estate'' should be read in its wider sense and that it denotes not only alienated estate, holders but also land holders and occupants of unalienated lands. This was rendered in the context of the term ''estate'' as defined and used in the different sections of the Bombay Land Revenue Code and, as pointed out above, the term ''estate'' is identically defined in the Karnataka Land Revenue Act, 1964, and the different sections that are to be found in the Bombay Land Revenue Code, referred to above, find their place in the Karnataka Land Revenue Act also.

That being so, whatever be the meaning given to the word ''estate'' prior to the Karnataka Land Revenue Act, 1964, it would be necessary to bring about uniformity and the term ''estate'' shall now be interpreted in a wider sense applying it not only to estate holders of alienated lands but also to land holders and occupants of unalienated lands, including lands held under ''raiyatwari'' system.

It is in that view that we have to read the observations of his Lordship Chief Justice G.K. Govinda Bhat, as he then was in the case of Kallolu Nanjundappa v. Nanjappa, CRP 831/76 dt. 4-6-70, wherein His Lordship has observed thus:

"The Civil Court becomes functus officio on the passing of a decree for partition of agricultural lands and the decree has to be transmitted to the Deputy Commissioner; and it is the jurisdiction of the Deputy Commissioner to effect a partition. Since execution by the Civil Court is not contemplated, the question of deciding whether or not the partition would create fragments does not arise to be determined by the Civil Court."

I am thus of the considered view that the term ''estate'' used in S. 54 of the Code of Civil Procedure shall be interpreted in a wider sense as ruled by the Supreme Court of India in the aforementioned case to include unalienated lands also of which the ''raiyatwri tenure forms part. Any other interpretation would go to defeat the objects and reasons of the Karnataka Land Revenue Act, 1964, brought into force with the specific object of bringing about uniformity in the legislation and procedure with regard to land and land revenue administration in the entire State of Karnataka.

The High Court of Madras, in the case of Muttuchidambara v. Karuppa, ILR 7 Mad. 382 FB, has no doubt by a Full Bench decision observed:

"The question for decision is whether the provisions of Section 265 of the Code of Civil Procedure, requiring that a decree for the partition of an estate paying revenue to Government be executed through the Collector of the District, are applicable to raiyatwari holdings. This section corresponds with Sec. 225 of the Code of 1859. It was held by the Sub-Court that raiyatwari holdings were not estates paying revenue to Government, and this construction has always been acted upon in this Presidency. It would unsettle a large number of titles to adopt a different construction now, and whatever we might have thought if the matter had come before us as res integra, we are not prepared to disturb a practice so long established."

Thus, it becomes clear that their Lordships confirmed a long standing practice rather than disturbing it. But, they have taken care to observe that if the matter had come before them as res integra they might have taken a different view. That reasoning is no longer available as the Legislature in its wisdom has enacted the Karnataka Land Revenue Act, 1964, with the specific objective of bringing about uniformity in the administration of lands throughout the State of Karnataka. Hence, the Madras view cannot hold the field in any part of Karnataka after the passing of the uniform Legislation-the Karnataka Land Revenue Act, 1964.

For these reasons, I hold that the proper procedure to be followed in the case of partition and separate possession of agricultural lands assessed to payment of revenue to Government, including the ''raiyatwari'' tenure lands, is to follow the procedure contemplated under S. 54 CPC and the Civil Courts have no right to bring about such partition and award separate possession of such lands by appointing a Commissioner.

In the result, therefore, the 2 civil revision petitions are allowed. The impugned orders are hereby set aside and the concerned Courts are directed to follow the procedure contemplated under Section 54 CPC for partition and separate possession of the lands in question as they are admittedly agricultural lands assessed to the payment of land revenue.