RAM DAYAL MAHTON Vs. JAGARNATH SAHAY

JUDGEMENT

(1.) In this case the Plaintiffs instituted, a suit for partition with respect to 39.89 acres of land in the district of Hazaribagh, described in Schedule A of the plaint, and 3 decimals of land situated in village Danwar in Sasaram Sub-division of Shahabad District, described in Schedule B of the plaint. The case of the plaintiffs is that the family of Bhrigunath Sahay and of the plaintiffs and. defendant No. 15 constituted a joint Mitakshara family at the time of Survey Operations, but some time after-wards there was disruption in the joint family status and there was partition by meter and bounds with regard to a portion, of the joint family properties by virtue of a registered deed. With regard to the remaining properties the par- tics continued to be tenants in common with specified shares therein. It was further alleged that in 1940 Bhrigunath Sahay made a gift of his 8 annas share to Harihar Prasad from whom defendants 1 to 4 claim title. The Plaintiffs also alleged that defendants 1 to 4 had made settlements in favour of defendants 5 to 14 on the one hand and defendants 16 to 28 on the other hand. But the allegation of the plaintiffs is that these settlements' were not bona fide but they have only been made to derive wrongful gain and to harass the plaintiffs and put them to loss. The case of the Plaintiffs is that these transactions are sham and farzi and defendants 5 to 14 and 16 to 28 have derived no title by these settlements. The plain tiffs accordingly asked for a decree for partition of half share of Schedule A and B properties. They also asked for further relief that defendants 5 to 14 and 16 to 28 should be ejected from the portions of the disputed Iand of which they alleged to have taken settlement from defendants- 1 to 4.

(2.) The suit was instituted by the plaintiffs in the Court of the Munsif, 1st Court, Sasaram. An objection was raised on behalf of the Defendants. 2nd Party that the Munsif, 1st, Court, Sasaram, had no territorial jurisdiction to try the suit The objection ,was overruled by the Munsif, Ist Court, Sasaram, by his order dated the 6th February, 1961. The defendants 2nd Party have obtained a rule from the High Court against this Order of the Munsif, 1st Court, Sasaram.

(3.) On behalf of the petitioners it, was sub-mitted that the Munsif, 1st Court Sasaram, had no territorial jurisdiction in this case and the provisions of Section 17 of the Code of Civil Procedure have no application to this case. Reliance was placed by learned Counsel on behalf of the petitioners to a decision of the Allahabad High Court, in Karam Singh v. Kunwar Sen, AIR 1942 All 387. It was held by the Allahabad High Court in that case that the provisions of Section 17 of the Code of Civil Procedure are intended to solve the difficulty which would naturally arise if there was a dispute about some immoveable property which was situated partly within one jurisdiction and partly within another : but before the provisions of Section 17 come into play there must be one property which is situated in different jurisdictions, and "the property must, in the particular circumstances of the suit, be capable of being described as a single entity". The opposite view point was put forward by learned Counsel on behalf of the Plaintiff-Opposite party. It was submitted that the decision of the Allahabad High Court in AIR 1942 All 387, has been doubted by a Full Bench of the Nagpur High Court in Ramdhin v. Thakuran Dulaiya, AIR 1952 Nag 303 (FB). It is true that the soundness of the view expressed by the Allahabad High Court in Karam Singh's case, AIR 1942 All 387 has been doubted by the Full Bench of the Nagpur High Court in Ramdhin's case, AIR 1952 Nag 303 (FB), but, in our opinion, the ratio decidendi of the Nagpur case does not apply to the present case. Reference was also made on behalf of the Plaintiff-Opposite party to the decisions in Basanta Priya Dei v. Ramkrishna Das, AIR 1960 Orissa 159, Govindraja Mudaliar v. Alagappa Thambiran, AIR 1926 Mad 911 (FB), Papamrna v. Ravula Ramaswami, AIR 1933 Mad 622 and Muthuswami Kavundan v. Poonayya Kavundan, AIR 1928 Mad 820 (2). In our opinion the material facts of the present case are different from those dealt with in these authorities, and the present case does not fall within the ambit of the principle laid down by these authorities. On the other hand we are of opinion that the present case is governed by the principle laid down by the Judicial Committee in Nisar Ali Khan v. Mohammad Ali Khan, 59 Ind App 268 at p. 282 : (AIR 1932 PC 172 at p. 177). In that case the plaintiff filed a suit in an Oudh Court to recover one immoveable property within its jurisdiction and two immoveable properties situated in the Punjab without its jurisdiction. The Plaintiff claimed to be entitled to all these properties under a will. He also joined in the suit a prayer to declare him Mutawalli of a waqf in another property situated in the Punjab called the Khalikabad estate. It was held by the Privy Council that the Plaintiffs had a right to include the first two properties in the Oudh suit but as regards the Khalikabad property the Privy Council said as follows :