MOHD TANTRY Vs. ABDI TANTRY

JUDGEMENT

(1.) THIS is a civil revision. It arises out of a suit for partition and possession. The subject matter of the suit is land measuring 97 kanals 6 marlas under khewat No. 110 situate in village Har -dumanda Gouri, Tehsil Kulgam. The petitioner and respondents 1 to 6 are admittedly recorded co -sharers thereof. Respondent No. 1, who is plaintiff in the trial court, claims partition of the khewat and possession of land measuring 2 kanals and 2 marlas by which, he says, the land actually held and sold by him falls short of his share in the khewat. The petitioner and respondents 2 to 4, who were contesting defendants in the trial court, raised objections about, the maintainability of the suit inter alia on the ground that the trial court had no jurisdiction to try the suit and that it was barred by the principles of resjudicata. By his order dated 3 -9 -1971 the trial court decided these objections alongwith some others against the contesting defendants. Hence this revision.

(2.) THE objection about jurisdiction was covered in the trial court by issue No. 2 which runs as under: - "Has this court no jurisdiction to try this suit? O. P. P. Dealing with this issue the trial Munsiff observed that it was not pressed before him by the learned counsel for the defendants. He, however, proceeded to observe that village Hardumanda Gouri, where the land is situate, was within the territorial jurisdiction of his court and as such the suit was triable by him."

(3.) BEFORE me the learned counsel for the petitioner argued that the suit was one for partition of agricultural land and could not, therefore, be tried by a civil court under section 139(2) (xvii) of the land revenue Act. The further argued that the plea touches the inherent jurisdiction of the trial court which it should not have overlooked nor also can this court sitting in revision ignore it on the ground that it was not pressed by the defendant at the time of arguments in the trial court, the reason being that there can be no estoppel against a Statute. In reply the learned counsel for the contesting respondents did not seriously dispute the correctness of this proposition and, I think, rightly so. He, however, urged that the suit was triable by a civil court even if the relief claimed was partition of land by metes and bounds and possession. In this connection he relied on the decision of this court in Mumtaz Begum Vs. Aman Ullah Khan and others (1963 K. L. J. 279). Section 139 (2) of the Land Revenue Act excludes the jurisdiction of civil courts over various matters including the following in clauses (xvii) and (xviii) thereof. (xvii) any claim for partition of on estate, holding or tenancy, or any question connected with, or arising out of proceedings for partition, unless such question is to be determined by a civil court as a question of title arising out of the said proceedings ; "(xvii) any claim for partition of on estate, holding or tenantion of an estate, holding or tenancy, or as to the distribution of land revenue on the partition of an estate or holding, or as to the distribution of rent on the partition of a tenancy." It is with reference to these provisions that the jurisdiction of civil courts is questioned in suits like the present where the relief claimed is partition or possession based on partition of agricultural land either as a principal relief or as a consequential relief or as an ancillary relief. On the interpretation of these provisions, therefore, depends the delimitation of the fields of operation of the civil courts and the Revenue Officers in matters concerning partition of agricultural lands. Viewed solely on their terms, the provisions of clauses (xvii) &((xviii), as aforesaid, might suggest that a civil court has absolutely no jurisdiction in any matter concerning partition or separation of a share of an estate, holding or tenancy unless such matter arises out of a partition proceeding before a Revenue Officer and involves a question of title which a civil court is empowered to determine in relation to such partition proceedings. That cannot, however, be treated as a correct or even a proper approach to ascertaining the true import of these clauses. The reason is not far to seek. The provisions of these clauses are really founded on certain other provisions in the Land Revenue Act dealing with the powers and functions of Revenue Officers in matters concerning partition and question connected therewith which these clauses are intended to protect against intrusion by civil courts. In order to determine the true scope and extent of these clauses and delimit the area of their operation one must, therefore, necessarily notice the relevant provisions bearing on the subject of partition in the Land Revenue Act.