SALIG RAM Vs. DUNI CHAND

JUDGEMENT

(1.) The suit, out of which this appeal has arisen, was brought by the plaintiffs- appellants, for recovery of possession of a 4/5 share of 1? biswas and in the alternative for a decree declaring them to be entitled to a 4/5 share. The facts are these: One Kishen Lal had four sons. The plaintiffs are the descendants of Govind Rae and Nagar Mal, two of those sons. Duni Chand defendant is the son of Daulat Rae, another of the sons of Kishen Lal. He had a fourth son Girdhar Lal whose widow was Musammat Maharani. In 1890 the members of the family of Kishen Lal, who were then alive, referred their disputes to arbitration and an award was made under which the descendants of Daulat Rae and Govind Rae and Nagar Mal were given a 1? biswa each and Musammat Maharani was given a similar share which it was declared was to go to equal shares to the descendants of Daulat Rae, Govind Rai, and Nagar Mal upon her death. The award was made a rule of Court in 1891. Musammat Maharani died on the 15 of April 1895. In 1896 an application for partition was made by Padam Singh one of the co-sharers in the village, and notice was issued to all other recorded co-sharers including the plaintiff. On the 22 September, 1896, Duni Chand made an application for portition of 2? biswas (sic), viz., his own 1? biswa share and the 1? biswa share which under the award was given to Musammat Maharani. On the 25 of September 1896 the plaintiffs-appellants filed throe separate applications for partition of their shares and in those applications they claimed a portion of the 1? biswa share of Musammat Maharani. On the 30 of September 1896, the applications of the plaintiffs in so far as they related to the l? biswa share mentioned above were rejected and a partition was ordered to be effected in their favour for the remainder of the property claimed by them. This partition was carried out and subsequently confirmed. Duni Chand's application was also granted and the 2? biswas share of which he sought partition was formed into a separate mahal.

(2.) The plaintiffs did not appeal against the order of the Assistant Settlement Officer refusing to forma malial belonging to them which would comprise a portion of the 1? biswa of Musammat Maharani but they have instituted the present suit for recovery of possession of a 4/5 th share out of the said 1? biswa. The Court of first instance granted them a decree but the lower appellate Court has dismissed their suit on the ground that by reason of the provisions of Section 233, Clause (k), of Act III of 1901, the suit was not maintainable. The correctness of this decision has been impugned in this second appeal. In my judgment the view taken by the Court below is correct. Section 233 provides that no person shall institute any suit or other proceeding in the Civil Court in respect to any of the matters therein mentioned. One of these matters as specified in Clause (k) is the partition and union of mahuls. The object of this suit is to disturb the partition which has already been effected by the Revenue Court. As has been pointed out above, the plaintiffs themselves made independent applications for partition in which they asked the Revenue Courts to form a malial or mahals for them which would comprise portions of the 1? biswa share given to Musammat Maharani by the arbitration award. Those applications were rejected in so far as they related to the said share. The remedy of the plaintiffs was to have appealed to higher authorities against the order of the Court of first instance but they did not do so and they allowed the partition to be completed. This partition was effected under the provisions of Act XIX of 1873. Section 241 of that Act also precluded the plaintiffs from bringing a suit in the Civil Court in respect of the partition effected by the Revenue Court. This is not a case in which another co-sharer had applied for partition and the plaintiffs who opposed the partition had no opportunity of disputing the title and claim of the applicant for partition. In such a case the co- sharer who had not notice of the application and had thus no opportunity of disputing the title of the applicant might, as held in Khasaya V/s. Jugla 28 A, 432 : A.W.N. (1906) 79, bring a suit in respect to the partition, but this case is not one of that description. The plaintiffs themselves applied for partition and their application, in so far as it related to the property now in question, was rejected by the Assistant Settlement Officer rightly or wrongly. After this and after the completion of the partition, the plaintiffs cannot bring a suit asking the Civil Court to disturb the partition and to allot to them and to their mahal a share which the Revenue Court had refused to give them. That would be the effect of the decree which the plaintiffs seek in this case. They are, in my opinion, precluded from maintaining such a suit by the provisions both of Section 241 of Act XIX of 1873 and Section 233 of Act III of 1901. No question of res judicata arises in the case and I think the learned Judge of the Court below has rightly held that it is immaterial whether a question of title was or was not put in issue and determined.

(3.) The principle of the ruling of the Full Bench in Mohammad Sadiq V/s. Laute Ram 23 A. 291 : A.W.N. (1906) 86 (F.B.), applies to this case. I accordingly dismiss the appeal with costs including fees on the higher scale.