Compliance with the Karnataka Land Reforms Act and C.P.C. in the partition of agricultural lands, and the appointment of a Commissioner for such division.

M. P. CHANDRAKANTARAJ, J,, J.

( 1 ) THIS Regular First Appeal is directed against the order made in R. I. A. No. 88/1967 in O. S. No. 38/ 1965 bearing the date 31-3-1977.

( 2 ) THE said order purports to be made in Final Decree Proceedings pursuant to the preliminary decree granted in the aforesaid mentioned original suit No. 38/ 1965 on the file of the 1st Additional civil Judge, Mangalore. The said suit was one for partition. The suit 'b' schedule properties were all agricultural lands assessed to land revenue.

( 3 ) A perusal of the order shows that the matter had come up before this Court earlier in R. F. A. 93/71 and was dispose'd of by a remand by which Court below was directed to proceed in a particular manner. What was pressed before this Court earlier in R. F. A. 93/71 was that the allocation of lands in the final decree proceedings, among the parties to the proceedings was such that some of them got larger extent of lands in the partition that were in the occupation of tenants than other sharers. In the result, this Court directed that having regard to the provisions of the Karnataka Land Reforms act, people who are allotted lands in the occupation of tenants would be hard hit and therefore this court set aside the final decree proceedings and remanded the matter directing the Court below to keep in mind the lands occupied by the tenants also to be apportioned, as far as possible, equally among all the sharers so that the loss of such lands as a result of the tenants being granted occupancy rights would be equally shared by all. As a result of that remand, the present order and final decree proceedings have been passed.

( 4 ) WE should have no hesitation to set aside the order made in final decree proceedings now under appeal, notwithstanding the earlier order made by this Court, on the short ground that suit 'b' schedule properties being lands assessed to land revenue could be divided only in accordance with Section 54 read with Order 20 Rule 18, c. P. C. and the appointment of a Commissioner becomes totally unnecessary because the mandate of the law must be given effect to. The mandate is that where the shares to be divided is assessed to land revenue, the same shall be done by the Deputy Commissioner or an officer authorised by him and not by the Court or by the commissioner appointed by the court. Unfortunately, this aspect was not brought to the notice of this Court in the first round litigation in this Court viz. , R. F. A. No. 93/71. Now, we have clarified the position.

( 5 ) WE set aside the order in the final decree proceedings under appeal and direct the Court below to comply with the requirement of Order 21 Rule 18 of the C. P. C. and forward the decree, as if it was a final decree for execution by the Deputy Commissioner of south Kanara District, in accordance with the provisions of C. P. C. , to which we have to referred to earlier.

( 6 ) HOWEVER, we must further clarify first the preliminary decree which was the subject matter of R. F. A, 93/71 was set aside by this Court with a direction to which we have referred. But in that Judgment, this Court did not either specifically state the quantification of the mesne profits directed in the preliminary decree nor specifically set aside the same. The entire final decree order was set aside and the matter was remanded. Therefore, it is reasonable to presume having regard to the fact that all questions were left open to be agitated in the final decree proceedings, that the entire final, decree was set aside.

( 7 ) IN the result, in the light of the order now made by us in this appeal, the Court has to determine by appointment of a Commissioner the mesne profits for the period referred to in para-5 of the preliminary decree. The parties are free to adduce evidence before the trial Court in regard to this matter, and after recording the evidence led by the parties, if any, the Court shall quantify the mesne profits and direct the plaintiffs to pay the same as a mo

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