KEDAR NATH SANYAL Vs. NARESH CHANDRA GHOSH

JUDGEMENT

(1.) This appeal by the defendant arises out of a suit for declaration of title and for permanent injunction restraining the defendant from taking possession of certain lands allotted to him under proceedings taken under the Estates Partition Act of 1897 B. C. The facts are that Touzi. No. 4342 Mauza Jabra which was under partition by the Collector of Dacca comprises two chaks, Banda Tan Chak and Banda Dop Chak. The plaintiff had four annas odd share in the mauza. He purchased a four annas share of a former proprietor in the Banda Dop Chak. Before the partition was carried out he laid claim to the four annas share in the Banda Dop Chak. The Deputy Collector in charge of the partition found that as a matter of fact the plaintiff had an eight annas odd share as recorded in the settlement record which also showed plaintiff's possession to the extent of eight annas odd share of the Dop Chak. But as he found that in the D Register in the Collectorate, which I understand is the Land Registration Register the plaintiff was not recorded as the proprietor of the four annas share in Dop Chak: he ordered that the takta representing the four annas share be placed next to the takta allotted to the plaintiff for four annas odd share and allotted it to the defendant. It appears from the D Register of the Collectorate that one Mr. Pink, as receiver to the estate of Chandra Nath Saha, claimed this share but no evidence was adduced in his behalf in support of the claim. As no counter-claim had been put in respect of this share the Deputy Collector ordered that the name of Mr. Fink be registered in respect of it. The plaintiff thereafter brought the present suit for declaration of title as stated above. Both the Courts below have agreed in finding title with the plaintiff and in decreeing the suit. In the appeal by the defendant before us, two points have been taken : (1) that the suit is barred under Section 119, Estates Partition Act 1897; (2) that the suit is barred by limitation under Art. 14, Lim. Act. It [may be noted that these two objections were taken in the trial Court and overruled. They were not pressed in the lower appellate Court and the judgment of the learned District Judge proceeds solely on merits. As the questions raised refer to the jurisdiction of the Court we allowed them to be argued before us. In my judgment both these objections should be overruled.

(2.) As regards Section 119, that section deals with jurisdiction of the civil Court to question any order made under Secs.20, 30, Chaps. 5, 7, 8, 9, 10 and Secs.107 and 117. The objection raised before us is that under Section 57, one of the sections under Chap. 8, the suit does not lie, Section 57 deals with the procedure relating to allotments. The Deputy Collector will consult all the proprietors who are present and hear and after such inquiry as he may consider necessary, dispose of any objecting which they may urge presumably to the mode of partition, as all objections relating to title and possession are dealt with under Chap. 4. Chap. 8, is headed "Making of partition by the Deputy Collector and approval thereof by the Collector." After he has done so the Deputy Collector shall proceed to determine how the lands of the parent estate should be partitioned into the separate estates and all matters relating to such partition. That section therefore deals with the mode of partition and the allotment by the Deputy Collector of different sahams. An order passed by the Deputy Collector in the exercise of the powers vested in him under Section 57 cannot be questioned in a civil suit. The object of Section 119 has been stated in the case of Janki Nath V/s. Kali Narain [1910] 37 Cal. 662 to exclude the jurisdiction of the civil Court where the question relates to the mode of determination of Government revenue or to details of partition and it does not oust the jurisdiction of the civil Court in matters which involve questions of title. This view has recently been supported by my learned brother Page, J., in Matangini Ghose V/s. Manmohini Ghose . But it-is argued that a question of title raised by a party not a party to the partition proceedings may be outside the scope of Section 119, but when a co-proprietor claims title to any portion of the parent estate and an allotment is made overruling this, objection, he is debarred by Section 119 read with Section 57 from bringing a separate suit.

(3.) This objection was also considered in Janki Nath Chowdhry V/s. Kali Narain Roy Chowdhry [1910] 37 Cal. 662 and overruled, it being held that a co-proprietor is in the same position as a stranger with reference to suits for declaration of title. This view has been endorsed by the Patna High Court in the case of Ajodhya Prosad V/s. Ramkhelawan Singh A.I.R. 1926 Pat. 421 a case very similar to the one before us. We have been referred to the decision in Gurbuksh Proshad Tewari V/s. Kali Prosad Narain Singh [1916] 32 I.C. 167. In that case there is some observation by Fletcher, J., adversely criticizing the view previously expressed in several cases that the orders made by the revenue authority are only conclusive in so far as they relate to the Government revenue and details of partition. But the real decision in that case rested upon a peculiar set of facts. The plaintiff in that case was co-proprietor. So long as the proceedings were in the Collectorate he never objected that any lands within the parent estate exclusively belonged to him. All the objections made were with regard to the mode of partition and overruling those, allotments Were made to separate estates under the partition. Thereafter the plaintiff brought a suit on the ground that the partition by the Deputy Collector followed a settlement record which was the result of some sort of fraud practised upon the plaintiff. Fletcher, J. held that the result of the plaintiffs suit would be to allow the plaintiffs to retain lands allotted to them on the footing that the lands sued for formed a portion of the estate under partition and enabled them to recover a portion thereof awarded to the defendants from them, which the learned Judge considered to be highly unjust and inequitable. Richardson, J., also thought the same and observed that the dispute in that case was as to what particular lands were held in common tenancy not as to plaintiff's interest in those lands when once the lands were determined. On the merits also the learned Judge said that he was very doubtful whether the plaintiffs ought to succeed. That case is no authority for the broad proposition that when an order purports to have bean passed under Section 57, Estates Partition Act, no one has any right to bring a suit for declaration of title in respect of lands allotted under partition. I do not find myself in agreement with some of the observations made by Fletcher, J., but as the case is not an authority in support of the objection raised before us, I refrain from discussing it further.