S FAYAZ ALI Vs. SMUSHARRAF ALI

JUDGEMENT

(1.) THIS is a first appeal from an order arising out of a dispute between the co- sharers in a Mahal, or sub-division of a Mahal, which was admittedly formed by a partition completed on the 26th of March 1914 and taking effect from the commencement of the agricultural year next following. The position of the parties is very clearly stated in the order by which the Assistant Collector dismissed this suit. A certain number of facts are not made quite clear by that order, or by anything which we can discover on the record; but we think enough is apparent to determine the result of this appeal. There was in existence, prior to the partition above referred to a Mahal or sub-division of a Mahal described in the revenue papers as khewat No. 1. THIS represented a certain specified, and presumably ascertainable, area of 2,391 bighas and 7 biswas. It was recorded as representing also a fractional share in the proprietary rights of the entire village (or of some larger Mahal), amounting to 13 his was, 13 hiswansis, 13 tanuansis and odd. The proprietary rights in this "khewat No. 1" were somewhat oddly distributed. It was divided first of all into two distinct portions, one representing a fractional share of 10 biswas, 10 biswansis, 10 kachwansis and odd and the other representing a fractional share of 3 biswas, 3 biswansis, 3 kachwansis and odd. The former of these sub divisions was the property of three persons, the plaintiffs in this suit being two of them and defendant No. 2 in the original array of parties being the other. It was recorded that the plaintiffs were the proprietors of one-half of the specified share and defendant No. 2 of the other half. The remaining sub division of khewat No. 1 was again sub divided into five shares; two of these representing 2/5ths of the subdivision belonged to two ladies named Musammat Muhammadi Begam and Amani Begam. Another fractional share of 1/5th belonged to a cosharer represented in this litigation by defendants Nos. 3 to 5. The remaining 2/5ths belonged to a co-sharer now impleaded as defendant No. 1. The partition to which reference has already been made was one effected at the instance of Muhammadi Begam and Amani Begam. It resulted in the formation of a new Mahal or sub division of a Mahal and represented the fractional interests of these ladies in the whole of "khewat No. 1." Naturally the new Mahal thus formed was assigned a specific area and was separately assessed to land revenue. It may be referred to as the Mahal of the non applicants for partition, and this was now described as "khewat No. 4." It was given separate assessment to land revenue and it was assigned a specific area, as to which it is not denied that the total area so assigned correctly represents a fair apportionment of the old khewat No. 1 between the two new Mahals of the applicants and of the non applicants. The shares of the co sharers in khewat No. 4 naturally required to be specified at the time of the partition, if the partition was not to be left incomplete and was not to serve merely as starting point for further disputes. The shares were so specified, and it is not denied that they were correctly specified. The plaintiffs and defendant No. 2 continued as before to be co-sharers to the extent of one-half of 10 biswast 10 biswansis, 10 kachwansis and odd. Defendant No. 1 and the successors of Husaini Begam (defendants Nos. 3 to 5) were interested in the new Mahal to the extent respectively of 2/5ths and 1/5ths of 3 biswas, 3 biswansis, 3 kachwansis and odd. It appears, however, that the same officer who prepared the partition paper, and who made the necessary apportionment of areas between the new Mahals of the applicants and non-applicants, also drew up a paper which we have not seen, but which is referred to in one of the judgments on this record as a chitha in which the areas appertaining to the respective shares of the co sharers in khewat No. 4 were set out. Not having seen this chithat we cannot be certain whether there was an actual apportionment, field by field, of lands making up the specified areas, or whether the account set forth in the chitha was intended to represent no more than the partition Amin s opinion as to what a rateable apportionment of areas in the new Mahal of the non-applicants would come to. In any case the chitha in question seems to have been accepted by the officer con-ducting the partition and we must take that it was treated as one of the records of the partition when the same was finally confirmed by the Collector. The Collector s order confirming the partition, and incidentally accepting this specification of areas, was not appealed and became final between the parties. The plaintiffs now allege that the specification of areas involves a simple and obvious error in arithmetic. They say that a total area of 109 bighas, 18 biswas was wrongly deducted from the area specified against the share which stood in the names of plaintiffs and of defendant No. 2, whereas the same area was wrongly added to the share specified against the name of defendant No. 1. The plaintiffs say that when they discovered this fact, they went to the Assistant Collector with a petition reciting that there was a patent error in the revenue record which it was his duty to correct. The Assistant Collector assumed that an arithmetical mistake had been made by the partition Amin, and adopted by the partition Court ; but he said that the decision was final between the parties and that the existing record, being in accordance with the record prepared at partition by the Assistant Collector and sanctioned by the Collector, could not now be regarded as containing an error susceptible of correction upon an application such as that before him. There was an appeal against this decision to the Collector and, in affirming it, the Collector incidentally and without discussing the point mentioned that he was by no means sure that the specification of areas made at the time of the partition was really due to a clerical mistake. Obviously, inasmuch as the lands within a Mahal may differ widely in value, from unculturable waste to first class irrigated land, and also from lands in the possession of occupancy tenants holding at a favourable rate of rent to sir lands in the actual cultivation of the proprietors, who enjoy the full benefit of their productiveness, it does not necessarily follow that a co sharer who is entitled to a rateable share of, let us say, 7/l6ths in the proprietary rights over a particular Mahal, and who is actually holding in severalty 6/16ths of the entire area of that Mahal, is necessarily enjoying less than his fair rateable share in the profits of the same. He might conceivably be enjoying considerably more than his rateable share. It would depend entirely on the quality of the land held by him. THIS seems to be the meaning of the Collector s expression of opinion regarding the specification of areas made at the time of the partition. It is not for us to say, and we cannot say on the materials before as, whether it was right or not. Having failed to obtain correction of the revenue records, the plaintiffs filed the suit out of which this appeal arises in the Court of the Subordinate Judge of Meerut. They set forth in substance the fasts which have already been recited, and the relief sought by them was that they should be given a decree for actual possession over 54 bighas, 19 biswas of land, the same to be taken out of 329 bighas, 11 biswas of land which had been recorded in the revenue papers originally against the name of defendant No. 2, but in respect of which the names of certain other defendants, Nos. 6 to 10, have since been recorded by reason of an alleged religious endowment. The plaint as drafted seems to pre-suppose that these 329 bighas, 11 biswas represent an ascertainable area of land specified in the village papers according to the field numbers. It is by no means certain from the record whether this is so or not ; but for purposes of argument the case can be disposed of on either assumption. If the 329 bighas, 11 biswas are not an ascertainable area of land, the plaint is practically meaningless and the relief sought for is an impossible one. On the opposite assumption the plaintiffs are asking the Court to disturb the distribution of land within the limits of a Mahal effected at the time of the partition. The Assistant Collector dismissed the suit on this ground. He has been reversed on appeal by an Additional District Judge, an officer of no revenue experience, who seems to have assumed, without giving any reasons for his assumption that the partition Court, when dividing the old khewat No. 1 into the two new Mahals, of the applicants and the non-applicants, had no rights to specify the shares of the proprietors in the new Mahal of the non applicants for partition inter se and much less to make a distribution of the lands of that Mahal between the same co- sharers. The jurisdiction of the Revenue Courts when conducting a partition cannot be impeached in this way by the Civil Courts. The area formerly represented by khewat No. 1 had to be divided into two portions, and it was for the Revenue Court conducting the partition to see what consequences this division involved. The area formed into the new Mahal of the applicants had to be taken out in some way from the area which formerly constituted khewat No. 1. There had to be in any case a specification of the shares of the proprietors of the new Mahal of the non-applicants inter se. And the question whether or not an actual distribution of lands between those co sharers was necessitated by the formation of the new Mahal of the applicants was one for the Court conducting the partition and for no other Court. In the present case it is by no means clear on the material before us that the lands in the new khewat No. 4 were apportioned between the co sharers of the Mahal of the non-applicants, in the sense of there having been a complete division according to qualities of soil, rates of rent and the like. If this was done, it was within the competence of the Revenue Court to do it; and the orders of the partition Court on the point would be final and binding. between the parties. On the materials before us it seams more probable that the entries of areas in the chittha referred to by the Collector were nothing more than a specification of areas actually hold and enjoyed in severalty by the co sharers in the new Mahal of the non applicants. In the former case the parties are bound by the apportionment made at partition; in the latter case, either the plaintiffs have suffered no wrong or they have a remedy available in the proper forum, namely, in the Revenue Court. The area specified as assigned to them in the chittha referred to in the Collector s order either gives them their full rateable share in the divisible profits of the Mahal of the non applicants, or it does not. In the former case they have no grievance; in the latter case they are in the position of co sharers who find that certain other co sharers have succeeded in appropriating to themselves in severalty a proportion of the lands appertaining to the Mahal which gives them more than their fair rateable share of the annual profits. Any co-sharer in this position has two distinct remedies. One is to sue the other co sharers, year by year, for a settlement of accounts; a suit of that nature is provided for by the Tenancy Act and the interference of the Civil Court in a matter susceptible of being so adjudicated by a Competent Court of revenue is barred by Section 167 of the Tenancy Act. On the other hand, a co sharer in the position described has an undoubted right to apply to the Revenue Court for a further partition: that is to say, the present plaintiffs are in no way estopped by anything that took place at the partition of 1914 from asking the Collector or Assistant Collector to make a separate Mahal of their present share in khewat No. 4. Whether such a proceeding would be of advantage to them or not depends on whether there was or was not at the last partition a complete apportionment of lands, described by ascertainable field numbers, amongst the co-sharers in the aforesaid khewat No. 4. In any case this much is clear, and it is only fair to the plaintiffs that we should say so. Their rateable share in the proprietary rights of khewat No. 4 is the share assigned to them in the specification of shares and cannot in itself be affected by any specification which may have been drawn up at the time as to the areas held in severalty by different co-sharers. Subject to these remarks, we are satisfied that this appeal must prevail and that the Subordinate Judge s order dismissing the suit, as being one in substance barred by the provisions of the Land Revenue Act, was a proper order which has been wrongly interfered with by the Court of first appeal We allow this appeal accordingly, set aside the decree of the Court below and restore the decree of the Court of first instance dismissing the plaintiffs suit with costs throughout, including in this Court fees on the higher scale.