SHAH TAJAMMUL ALI Vs. MUSSOD ALI

JUDGEMENT

(1.) The parties to this litigation are the co-owners of Taluk Krishna Gopal Missir. One of them, the defendant No. 1, applied to the Collector, under the provisions of Bengal Act V of 1897, the Estates Partition Act, to have a partition effected of the taluk, and obtained an order from the Collector elated the 15 April 1905, declaring the estate to be under partition under Section 29 of the Act. This order was confirmed on appeal by the Divisional Commissioner. The objection raised before the Revenue Officers was that a private partition to the taluk had already been made, and the suit giving rise to this appeal is founded on the same objection. The plaintiffs seek to have a declaration that their lands shall riot be partitioned or, in the alternative, that they be allotted the lands of which they are in possession in accordance with the private partition which, they assert, has been in operation from time immemorial.

(2.) The Subordinate Judge of Tipperah has decreed the suit in the following terms, "It is hereby declared that the Taluk Krishna Gopal Missir, bearing No. 31 of the Tipperah Collector's Revenue Roll, is not fit to be partitioned, and that defendant No. 1 is estopped, from getting it partitioned by the Collector."

(3.) In appeal, four contentions have been advanced on behalf of the defendants Nos. 1 and 6: first, that there has never been any complete private partition of the taluk within the meaning of Section 7 of the Estates Partition Act; secondly, that even if any complete private partition was, at one time, effected, there was joint ownership in the taluk at the time when partition was applied for to the Collector, that being the time contemplated by Section 7 of the Act; thirdly, that the decree of the Subordinate Judge precludes all future partition; and fourthly, that the Civil Court has no jurisdiction to prohibit, absolutely, a partition to be made by the Revenue Authorities.