BALDEO SAHAI Vs. RAHTU LAL

JUDGEMENT

(1.) THIS is an appeal from an order of remand. The plaintiffs brought this suit in the court of the Munsif of Kairana alleging that they and the defendants were joint owners of an isolated plot in the abadi of a village, which they had purchased from the zamindars, and asked for partition of the plot. Among other defences it was pleaded that the Civil Court had no jurisdiction. The learned Munsif held that the Civil Court had no jurisdiction and the court dismissed the suit with coats. THIS order, it seems to us, was clearly wrong, lb should have ordered the plaint to be returned to the plaintiffs for presentation to the proper court. The plaintiffs appealed, and the learned District Judge allowed the appeal and remanded the case for decision on the merits. In appeal before us it is urged that the decision of the Munsif was correct as to the jurisdiction of the Civil Court and it is urged that Section 233(k) of the Land Revenue Act bars the suit. In our opinion that section has no application whatever to the facts of this particular case. The parties to this suit are not co-sharers in the mahal, much leas are they recorded co-sharers. It seems to us that they could not ask for partition of this plot of land under any of the provisions of the Land Revenue Act, and we doubt whether the partition which the plaintiffs seek could properly be included in the definition of "imperfect" or "perfect partition" given in Section 106 of that Act, for the reasons given in the judgment in the case of Ram Dayal V/s. Megu Lal (1884) I.L.R. 6 All. 452 (454). In our opinion this case is on all fours with that of Ram Ratan V/s. Mumtaz Ahmad (1912) 16 Indian Cases 876. Stress has been laid by the learned vakil for the appellants on the case of Narain Das V/s. Bhup Narain (1909) I.L.R. 31 All. 330, but a perusal of the facts shows that that case is not in point. There a particular village was divided into two mahals in 1867, with the result that the plaintiffs and defendants became joint owners of one of the mahals, whereas the defendants became the sole owners of the second mahal. The plaintiffs brought a suit in the Civil Court claiming partition of a particular dera which was situated in the new second mahal exclusively owned, after the partition, by the defendants, THIS Court held that the Civil Court had no jurisdiction to partition the dera, because admittedly the suit involved partition also of the site on which the dera stool and that it was in fact re-opening the partition of 1867, and that there was a remedy open to the plaintiffs in the Revenue Courts, namely to assess the ground rent of the premises occupied by the defendants. In our opinion, therefore, that case has no application. We think that the decision of the court below was correct and we dismiss the appeal with costs, but the costs of the lower appellate court and of the first court will abide the result. Tae third ground of appeal his not been argued and has been definitely abandoned for good reasons.