GANGARAM Vs. KANHAIYALAL

JUDGEMENT

(1.) THE opposite party No. 1 who is a nephew of the petitioner owned certain lands jointly with the latter. At one stage these lands were recorded in a joint holding. Later on and during the period relevant for our purpose these lands are being cultivated in different parcels by the parties separately. This is a fact admitted by both of them. THE difference is that on the one hand the petitioner Gangaram contends that this was on the basis of a final private partition by metes and bounds between the parties whereas Kanhaiyalal's contention is that this was a provisional arrangement and a final partition by metes and bounds is yet to be effected. Obviously, both the parties feel either that the lands in the separate possession of Kanhaiyalal are smaller in area or happen to be less valuable than those in possession of his uncle Gangaram. Be that as it may, the situation now is that though there is no controversy about the extent of the shares of the two parties in the holding as it originally stood which share is half and half there is a dispute as to whether what has happened and is in force at the present time is a provisional arrangement for convenience liable to be reconsidered in a regular partition proceeding or is a final partition by metes and bounds.

(2.) IN 1964 Bhagirath -the father of Kanhaiyalal who was alive at that time filed a partition before the Tahsildar Ujjain and under section 178 of the Land Revenue Code asking for a partition by metes and bounds and setting out the particulars of the plots in the original holding (No. 44) and their total area in regard to which there is no dispute. He wanted the demarcation of a half share by metes and bounds in his favour. As the other co-sharer, that is the present petitioner entered appearance and made out that there had been already a partition the Tahsildar held that it was a civil dispute and the partition could not proceed until the party interested got the civil disputes decided in an appropriate Court. The point to note is that the Tahsildar did not direct which party should go to the civil Court or fix a time limit. The aggrieved party, namely, Kanhaiyalal's father and after him Kanhaiyalal himself went up in appeal and revision. IN substance the position taken by the Tahsildar was maintained, however, the Board of Revenue in its revisional order set aside the orders of the lower Court dismissing the prayer for partition and remanded the case to the Tahsildar with the direction :

(3.) THE petition is accordingly allowed and it is further ordered, that the opposite party number 1 Kanhaiyalal shall pay the costs and pleader's fee of Rs. 50 (fifty) to the petitioner. Petition allowed.