PRABHU DAYAL Vs. SUB-DIVISIONAL OFFICER KARVI

JUDGEMENT

(1.) The respondents Nos. 2 and 3 i.e. Mahadeo and Sheo Sampati had filed a suit in the court of the Munsif of Banda being suit No, 241 of 1953 against the petitioners for partition of Bhumidhari holding measuring 50 bighas 13 biswas situated in village Hesta, pargana Karvi in the district of Banda. The learned Munsif passed a preliminary decree on 29-10-54 by which he held respondents Nos. 2 and 3 entitled to a half share in the said holding and to partition thereof. On 26-4-1953 the respondents Nos. 2 and 3 made an application, a copy of which has been filed along with this petition and marked as annexuxe 'A', in the court of the Judicial Magistrate, Karvi, Revenue Department (Sigha Mal Mauza Hasta Pargana Karvi). In this application the petitioners were impleaded as opposite parties. It was said in the application that a suit had been filed between the parties in the Civil Court in respect of partition o the bhumidhari plot in which the Civil court had declared the respondents Nos. 2 and 3 to be entitled to half a share in the said holding and to partition thereof. A copy of the decree of the learned Munsif was filed along with this application in the court of the Judicial Magistrate. The prayer in that application was that the shares of the applicants (the respondents Nos. 2 and 3 in this petition) be separated after actual partition and the Land be also apportioned. In this petition the prayer is for the issue of a writ of prohibition or any other suitable writ, order or direction forbearing the respondents from further proceedings with the aforementioned application and to quash the proceedings arising from the application pending before the Sub-Divisional Officer, Karvi. (Judicial Magistrate, Karvi). The grounds on which the petition is founded are that the learned Sub-Divisional Officer or Judicial Magistrate had no jurisdiction to entertain the application and that no application for the preparation of the final decree having been made before the learned Munsif the proceedings before the Judicial Magistrate were incompetent and not maintainable in law.

(2.) A counter-affidavit has been filed on behalf of respondents Nos. 2 and 3 which is sworn by Sheo Sampat, one of the respondents in this case. It is mentioned in this affidavit that by virtue of notification No. 1756/I-A-1073-53 dated 11-6-1953 all Sub-Divisional Officers discharge the function of a Collector and the application made by the respondents Nos. 2 and 3 was properly made and is properly pending before the Sub-Divisional Officer, Karvi, respondent No. 1. It is further alleged that the petitioners never raised any objection regarding the jurisdiction of the Sub-Divisional Officer who is respondent No. 1 in the present proceedings to proceed with the case before him. It is also stated in the counter-affidavit that under the law the final decree cannot be prepared by the Munsif, Banda, but would be prepared by the Sub-Divisional Officer and the proceedings pending before the Sub-Divisional Officer are proper and valid proceedings. In the counter-affidavit the allegation of the petitioners that they made an oral representation to the Sub-Divisional Officer, Karvi to the effect that he had no jurisdiction to proceed with the case has been controverted and it is stated that the same is untrue. Similarly the allegation that the petitioners filed an application for the stay of the proceedings before the Sub-Divisional Officer, Karvi, has also been controverted. The petitioners' appeal before the learned Temporary Additional Civil Judge of Banda against the preliminary decree passed by the learned Munsif has also been dismissed with the result that the decree of the learned Munsif has been confirmed. It may be noticed that after the respondents Nos. 2 and 3 had filed the suit in the court of the learned Munsif the petitioners in the present writ petition made an application in that court stating clearly that they were agreeable for partition if two other plots, i.e. 23/1 and 23/2, were also included in the partition along with the plots in respect of which the suit had been filed. The respondents Nos. 2 and 3 in the present proceedings made an endorsement on that application that they had no objection to that being done-and those plots were also included in the suit. After that the parties gave no evidence and the trial Court, i. e., the learned Munsif, held that the share of the plaintiff was one-half and directed that partition be carried out by the Collector on that basis I am reproducing below an extract from the judgment of the learned Munsif which is relevant for this case :

(3.) It was held by the Bombay High Court in the Full Bench case of Ramabai Govind v. Anant Daji, AIR 1945 Bom 338 (A) that there is no provision in the Code of Civil Procedure for making an application for transmitting the record to the Collector in a case covered by section 54 and Order XX, Rule 18, Civil Procedure Code. The Bombay High Court observed as follows :