GODAWARIBAI Vs. JOGILAL

JUDGEMENT

(1.) THIS is an appeal by the plaintiff from the concurrent judgments of the lower Courts, on the one hand, accepting his story that there had been a partition by metes and bounds between him on the one hand and his uncle the defendant on the other, as long ago as 1948 ; and, on the other, (and this is his real grievance) repelling [in view of section 44 of the Indore land Revenue and Tenancy Act (1 of 1931)1 his claim that this finding about a private partition entitles him to a direction from the civil Courts that the revenue authorities, should mutate his name to the exclusion of the defendant in their entries in respect of the plot numbers held by him separately by virtue of the said private partition. Thus the question resolves only to whether, and, if so, in what circumstances a private partition is binding on the revenue authorities, notwithstanding the provisions of the said section (and the corresponding provision in section 69 of the Madhya Bharat Land Revenue and Tenancy Act, and section 178 of the Madhya Pradesh Land Revenue Code ).

(2.) THE facts of the case are simple. For certain lands of the family, the plaintiff and the defendant are now entered jointly in the revenue papers. The plaintiff having been in exclusive separate possession of certain of these plot numbers wanted that there should be a mutation in his name to the exclusion of the defendant in respect of those plots. The revenue authorities, however, would not do this, as they do not recognise any partition made privately without the order of a tehsildar on consent of the parties concerned In case of disagreement between the parties the revenue authorities would only act in implementation of a decree of a competent civil Court, declaring the shares, it being the duty of the revenue authorities themselves to make the final decree , that is, a partition by metes and bounds in accordance with the shares specified by the civil Court. Therefore, the plaintiff came with the suit for a declaration that he was in separate possession of these plot numbers and that this partition though made privately was final and further that the civil Court should give a declaration to the fitch that a legal partition had already been effected which would compel the revenue authorities to give effect to the private partition and correct their entries accordingly.

(3.) THE defendant took the position that there was some arrangement in 1948 ; but it was one for convenience and not a final partition. Accordingly until there was a new partition in the manner required by the present law through the agency of the revenue authorities no mutation could be made. Both the lower Courts have accepted the plaintiff's position that the "partition" was not a provisional arrangement but one final as far as the parties were concerned ; still, in view of the revenue law they were not prepared to give a direction that the revenue authorities should correct their papers in conformity with the plaintiff's contention From this the plaintiff has come up in appeal and has tried to support his position by a number of unreported ruling of this Court which I shall refer to briefly. But before that the full implications of the revenue law have to be understood. "where the parties go to the revenue authorities with an agreed scheme they will straightway effect a partition by metes and bounds, and naturally correct their papers in accordance with this allotment Where the parties do not agree, the revenue authorities by themselves will not make a partition. This is obviously because it would still be an open question what share each of the co-sharers is to get, and until the share is specified no allotment by metes and bounds would be possible In such a situation they will have to go to the civil Court and obtain a declaration of their shares. This declaration can only be to the effect that such and such co-sharer holds such and such a fraction in the joint property. On what particular unit in the joint property the particular co-sharer should be given possession in accordance with the share is not the business of the civil Court. Once the shares are declared by the civil Court the matter goes again to the revenue authorities who proceed to carve out by metes and bounds different parcels in proportion to the shares specified. This, of course, applies only to agricultural lands and in the event of there being non-agricultural lands they should be partitioned by metes and bounds by the civil Court itself in accordance with its usual procedure ; but we are not here concerned with that situation, all the lands being agricultural.