MATLLOB HASAN Vs. MTKALAWATI

JUDGEMENT

(1.) This is an application for stay of further proceedings in a partition case pending before an Assistant Collector of Moradabad. In this case it appears that an objection was made involving a question of proprietary title, and the Court took action under Section 111 (1) (b), Land Revenue Act of 1901, and required the applicant for partition to institute within three months a suit in the civil Court for the determination of such question. The applicant for partition accordingly did institute a suit in the civil Court and got a declaration of title in her favour. An appeal from this civil Court decree has been filed and is now pending before the High Court. Meanwhile the Assistant Collector is continuing the partition proceedings in accordance with Section 111 (2), that is to say, he is dealing with the case in accordance with the decision of the civil Court, i. e., the civil Court of first instance. The appellant before this Court prays that the partition proceedings in the revenue Court may be stayed, pending decision of the appeal. It appears to me that the High Court has no jurisdiction to stay such proceedings of the revenue Court. If the Assistant Collector, instead of referring the question of proprietary title to the civil Court for determination, had elected to enquire into the merits of the objection himself as He was authorized to do under Section 111 (1) (c) and had passed a decree, then under Section 112 the High Court could have issued a precept to the Collector desiring him to stay partition pending the decision of an appeal against the decree. It is argued that if the High Court can stay the partition pending an appeal against the Assistant Collector's decision it would be very anomalous if the High Court cannot stay the partition pending an appeal against the civil Court's decision. I grant that the position does seem anomalous. I do not know why the legislature has thought fit to empower the High Court to stay the partition in the former case only, and not in the latter. The reasons for staying partition might be equally cogent in either case.

(2.) In the case of Ram Charitra V/s. Mohan Dei A.I.R. 1923 All. 210 Ryves, J., expressed the view that the revenue Court was wrong in completing the partition without awaiting the final decision of the civil Court. He hold that the revenue authorities: were clearly wrong, and that they did not act in conformity with the provisions of Section 111 (2) for the case was not dealt with in accordance with the decision of the civil Court as there had been no final decision of the civil Court.

(3.) I think it unnecessary to express any opinion whether the Assistant. Collector is exercising a proper , discretion, or is acting according to law, in proceeding with the partition case without awaiting the final decision of the civil Court, since I think that the High Court has no power to stay proceedings.