ORDER :

R. Subramanian, J.

1. This matter is taken up for hearing through Video-Conferencing.

This Civil Revision Petition is at the instance of the defendant in OS No. 9 of 2002 challenging an order dated 29.04.2017 made in IA No. 112 of 2016 directing the application to be forwarded to the Tahsildar for effecting a division of the property.

2. The suit in OS No. 9 of 2002 is filed for partition and separate possession of the 2/3rd share of the plaintiffs. The suit came to be decreed on 23.06.2011. The respondents herein filed an application in IA No. 112 of 2016 for passing a final decree under Order 26 Rule 13 of the Code of Civil Procedure by appointing an Advocate Commissioner. The same was resisted on various grounds.

3. The learned Subordinate Judge, Athur by order dated 29.04.2017 concluded that since the land is assessed to payment of revenue to the Government, the partition of the estate and separation of shares will have to be made by the Collector or a Gazetted Subordinate of the Collector deputed by the Collector, in this regard under Section 54 of the Code of Civil Procedure. She also referred to Order 20 Rule 18(1) of the Code of Civil Procedure in support of her conclusion. Reliance was also placed on the judgment of the Hon'ble Supreme Court in Shub Karan Bubna @ Shub Karan Prasad Bubna v. Sita Saran Bubna & others, reported in 2009 (9) SCC 689. Aggrieved by such reference made to the Tahsildar, the first respondent before the Trial Court has come with this Civil Revision Petition.

4. I have heard Mr. T. Murugamanickam, learned Senior Counsel appearing for Ms. Zeenath Begum, for the petitioner and Mr. A. Rajkumar, learned counsel appearing for the respondents 1 to 3.

5. Mr. T. Murugamanickam, learned Senior Counsel appearing for the petitioner would submit that Section 54 of the Code of Civil Procedure not apply to Ryotwari tenures. He would also contend that Section 54 would apply only to Whole Estates as defined under the various abolition laws. He would draw my attention to the following judgments of this Court:

(i) Muttuvayyangar v. Kudalalagayyangar, reported in (1883) ILR 6 Mad 97;

(ii) Muttuchidambara v. Karuppa, reported in ILR (7) M 382 (F.B.);

(iii) K.V. Srinivasathathachar v. Naravalur srinivasathathachar, reported in (1933) 1 MLJ 63; and

(iv) Kankanala Raju Bai v. Kankanala Peshireddy, reported in AIR 1982 AP 62;

The learned Counsel appearing for the respondents would submit that the respondents are ready to abide by any decision of this Court.

6. Section 54 of the Code of Civil Procedure reads as follows:

Section 54: Partition of estate or separation of share:

Where the decree is for 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 may gazetted subordinate of the Collector deputed by him in this behalf, in accordance with law (if any) for the time being in force relating to the partition or the separate possession of shares of such estates.

This provision was there even in the older Codes as Section 225 in Act 8 of 1959 and Section 265 in the Code of Civil Procedure, 1882. It is in its third avatar as Section 54 in the Code of 1908. In Muttuvayyangar v. Kudalalagayyangar, reported in (1883) ILR 6 Mad 97, a Division Bench of this Court had held that Section 265 of the Code of Civil Procedure would not apply to Ryotwari estate and would apply only to a permanently settled estate. The same question arose again before another Division Bench consisting of Hon'ble Chief Justice Charles A. Turner and Hon'ble Justice Muttusami Ayyar, in Muttuchidambara v. Karuppa, reported in ILR (7) M 382 (F.B.), the Hon'ble Division Bench referred the matter to a Larger Bench by order dated 28.07.1883.

7. Upon the said reference, the matter was placed before a Five Judge Bench of this Court, and the Hon'ble Full Bench in Muttuchidambara v. Karuppa,