YASIN ALI MIRDHA Vs. RADHAGOBINDA CHOWDHURY

JUDGEMENT

(1.) This is an appeal by the plaintiffs in a suit for declaration that an order fur partition of an estate made by the Sub-Divisional Officer of Sunamgunj on the 15 April 1913, and confirmed successively by the Deputy Commissioner of Sylhet on the 14 July 1913, by the Commissioner on the 9 December 1913 and by the Chief Commissioner on the 22nd November 1914, was without jurisdiction and was consequently inoperative in law. The case for the plaintiffs is that they objected to the applications for partition presented by the defendants to the Revenue Authorities on the ground that some of the lands of the estates sought to be partitioned were joint with the lands of other estates and the Revenue Authorities were not competent under the Assam Land and Revenue Ragulation, 1886, to effect a partition of lands included in several estates. This objection was overruled as untenable. The substantial matter in controversy in the present litigation, 19 the question of the legality of the order made by the Revenue Authorities. The Subordinate Judge has held that the decision of the Revenue Court was not ultra vires and that the plaintiffs were not entitled to the declaration and injunction asked for in the plaint,

(2.) To appreciate the true position reference may be made to the application for imperfect partition, which was presented on the 31 October 1911 by the first two defendants, and may be regarded a?) typical, as the applications presented by the third defendant on the 21st February 1912 and by the fourth defendant on the 22nd Marsh 1912 respectively may be treated for the solution of the question raised before us as similar in scope and purpose. The application of the first two defendants describes the estate to be divided as taluk Krishnamani (No. 24. 202/12) appertaining to Perganah Pagla, total revenue Rs. 6 3. Then follows the statement that account No. 1 of that mahal stands in the names of the petitioners and bears the total revenue Rs. 4-2. This indicates the applicant's own two thirds share in the taluk. The next column specifies the mouzas included in the estate, namely, Dekbarhant Dhamdharpar and Kastachpur. The fourth column states that the applicants have a two-thirds share of the original mahal. Then follow in the sixth column the names of the other sharers with their respective sharps. In the seventh column it is prayed that the lands of the original mahal, the subject-matter of the application, may be imperfectly partitioned and an allotment in respect of two-thirds share may be made in favour of the applicants. The eighth column contains the important statement that the lands of the original mahal, in respect of which the application is made, are joint with six mahals (names and numbers specified.) The applicants pray that the lands of the original mahal in respect of which this prayer is made may be separated from those of the other mahals and the same may be partitioned and, treating it as 16-annas, the applicants may be given an allotment representing two thirds of 16-annas. Then follows the statement that. the proprietors of the joint mahal have all been made parties to the proceedings. The question thus arises, whether the Revenue Court has jurisdiction to effect a partition of an estate when the lands of that estate, in whole or in part, are joint with the lands of other estates,

(3.) The answer to the question in controversy must depend primarily upon the true construction of the provisions of the Assam Land and Revenue Regulation, Section 3, (b) furnishes a definition of an estate; it includes, amongst other things, any land subject, either immediately or prospectively, to the payment of land revenue, for the discharge of which a separate engagement has been entered into. Section 96, which finds a place in the sixth chapter devoted to partition and union of revenue paying estates, classifies partition as either perfect or imperfect. Perfect partition means the division of a perfect revenue-paying estate into two or more such estates, each separately liable for the revenue assessed thereon. Imperfect partition means the division of a revenue paying estate into two or more portions jointly liable for the revenue assessed on the entire estate. Section 97 defines the persons entitled to partition and is in these terms: Every recorded proprietor of a permanently settled estate, and every recorded landholder of a temporarily- settled estate, may, if he is in actual possession of the interest in respect of which he desires partition, claim perfect or imperfect partition of the estate: Provided that (a) no person shall be entitled to apply for perfect partition if the result of such partition would be to form a separate estate, liable for an annual amount of revenue less than five rupees; (b) No person shall be entitled to apply for imperfect partition of an estate, unless with the consent of recorded co-sharers holding in the aggregate more than one- half of the estate; (c) A person may claim partition only in so far as the partition can be effected in accordance with the provisions of this Chapter. (2) When two or more proprietors or landholders would be entitled under Sub- section (1) to partition in respect of their respective interests in the estates, they may jointly claim partition in respect of the aggregate of their interests.