The main legal point established in the judgment is the need for clarification on the procedure to be followed in partition suits, particularly regarding the interpretation of Section 54 of CPC and the appointment of Advocate Commissioner.

JUDGMENT :

The defendant in the suit in O.S.No.25 of 2009 is the revision petitioner in C.R.P.No.1633 of 2020 and the plaintiff in the suit is the revision petitioner in C.R.P.No.2035 of 2020.

2. Parties are referred to as per the ranking in C.R.P.No.1633 of 2020.

3. The respondent/plaintiff has filed the above said suit in O.S.No.25 of 2009 before the learned Principal District Judge, Namakkal, against the revision petitioner/defendant (a) for partition;

(b) for appointment of a Commissioner; (c) passing of a final decree in terms of the commissioner's report; (d) for permanent injunction;

(e) rendition of accounts and also (f) to declare that the plaintiff and the defendant are the owners of the 'D' schedule property jointly consequently declaring both the plaintiff and the defendant are jointly entitled to perform pooja and Annadhana Kattalai attached to A/m. Palapattarai Mariamman Temple situated at Namakkal founded by late K.P.Ramasamy Chettiar performed during temple festival in the month of Vaigasi (May) every year with the direction to manage the kattalai by the plaintiff and the defendant one year each in rotation from the income of property dedicated for the said purpose by the founder.

4. The suit was decreed on 20.03.2019 and the defendant has filed an appeal suit in A.S.No.469 of 2019 wherein, passing of final decree alone was stayed and the appeal is pending before this Court. The plaintiff in the suit has filed an interlocutory application in I.A.No.3 of 2019 for appointment of Advocate Commissioner for passing of the final decree. In the said I.A., the revision petitioner in C.R.P.No.1633 of 2020/defendant has raised two grounds namely, the interlocutory application does not contain the schedule of the property and the Collector alone is competent to divide the suit property as per Section 54 of CPC. After enquiry, the learned Principal District Judge, Namakkal, has allowed the said interlocutory application and appointed an Advocate Commissioner to carry out formalities for passing of the final decree. However, with regard to the mesne profit enquiry, the relief was rejected and hence, the defendant has preferred the C.R.P.No.1633 of 2020 in respect of appointment of Advocate Commissioner while the plaintiff has filed the C.R.P.No.2035 of 2020 regarding rejection of the mesne profit enquiry.

5. Heard Mr.N.Manoharan, learned counsel for the revision petitioner in C.R.P.No.1633 of 2020/defendant and Mr.V.K.Vijayaragavan, learned counsel for the respondent in C.R.P.No.1633 of 2020/plaintiff.

6. The contention of the learned counsel for the petitioner is that the interpretation given to Section 54 of C.P.C. in Para No.16 of the order impugned is against law. Mere reading of the said Section would ipso facto indicate that 'the Collector or any gazetted subordinate of the Collector deputed by him in this behalf' alone is competent to divide the suit property. Hence, the Court below cannot go against the Code of Civil Procedure.

7. Mr.N.Manoharan, learned counsel for the revision petitioner in C.R.P.No.1633 of 2020/defendant has relied upon a catina of judgments to show that the Collector alone is competent to divide the property under Section 54 of CPC as held in the following decisions:-

[i] AIR 1985 Karnataka 82 [Ramagouda Rudregowda Patil & others Vs. Lagmavva & others];

[ii] AIR 1989 Karnataka 30 [DB] [Ramakrishnacharya & others Vs. Sreenivasacharya & others];

[iii] AIR 1995 Bombay 445 [Smt. Ramrathibai & others Vs. Surajpal & others];

[iv] AIR 1998 Karnataka 87 [Sanna Palaiah @ Palaiah Vs. Soncha Boraiah & another];

[v] 2000 AIHC 3690 (Bombay High Court) [Kisan Bhikaji Dalvi (Deceased) by LRs., Vs. Krishnabai Maruti Dalvi];

[vi] AIR 2003 Bombay 41 [Prakash Nathyaba Bhosale Vs. Laxman Ganaba Bhosale];

[vii] 2011 (3) Civil LJ 712 (DB) [ Lakhanlal Sahu Vs. Bhushan Sahu & another].

8. Mr.V.K.Vijayaragavan, learned counsel appearing for the respondent in C.R.P.No.1633 of 2020/Plaintiff has relied upon a decision of this Court repo