KANHAIYA Vs. LLLABAI

JUDGEMENT

(1.) THIS revision is by the plaintiff.

(2.) THE plaintiff had filed a suit claiming to be the adopted son of Puhup singh against the daughter of Puhup singh for declaration, partition and separate possession of certain property described in the schedule attached to the plaint. THE property in suit is assessed to land revenue. THE prayer clause in the plaint was to the following effect:

(3.) SHRI Dharmadhikari, learned counsel for the applicant, urged that the provisions of section 178 of the M. P. Land Revenue Code are only enabling. Even the proviso to section 178 makes it clear that where the question of title is raised, until such question has been decided by a civil suit, the revenue authorities cannot proceed to partition the property. He, therefore, urged that under section 178 itself the jurisdiction of the civil Court to entertain a suit to decide the title of the parties and even to partition the property is implicit. SHRI Pandey, learned counsel for the non-applicant, on the other hand, urged that though in section 178 the expression 'may' is used, it means 'shall' and that it is wrong to interpret section 178 as an enabling section. He conceded that in various clauses under section 257 there is no reference to section 178; but he urged that even in the absence of such reference, the case is covered by the general provision to be found in the first part of section 257 wherein it is stated that 'except as otherwise provided in this Code, or in any other enactment for the time being in force, no civil Court shall entertain any suit instituted or application made to obtain a decision or order on any matter which the State Government, the Board or any Revenue Officer, is by this Code, empowered to determine, decide or dispose of......'.