RAJENDRA NARAIN CHOWDHURY Vs. SATISH CHANDRA CHOWDHURY

JUDGEMENT

(1.) This is an appeal by the third defendant in a suit for partition of joint property, situated in the district of Sylhet and subject to the operation of the Assam Land and Revenue Regulation, 1886. In the trial Court, an objection was taken that the suit could not be entertained by the Civil Court and an issue was framed accordingly; but no argument was addressed on the question of jurisdiction. The suit was tried on the merits and a preliminary decree was made in favour of the plaintiff. On the present appeal the objection has been urged that the Civil Court has no jurisdiction to entertain the suit under Section 154 of the Assam Land and Revenue Regulation. There is no room for controversy that the point though abandoned in the trial Court, can be raised here; Meenakshi Naidu V/s. Subramanya Sastri [1887] 11 Mad. 26 and Mahaprasad Singh V/s. Ramanimohan Singh A.I.R. 1914 P.C. 140. In the case last mentioned, the Judicial Committee observed as follows : "Seeing that it is a question of jurisdiction which depended on no disputed facts, their Lordships are of opinion that they could not decline to entertain it, though not specifically raised on the appeal, more especially as it necessarily presented itself in argument."

(2.) Section 154 of the Assam Land and Revenue Regulation provides that except when otherwise expressly provided in the Regulation or in rules issued under the Regulation, no Civil Court shall exercise jurisdiction in any of the matters mentioned. The subjects thus specified include the claims of persons to perfect partition and the claims of persons to imperfect partition except in cases in which a perfect partition could not be claimed from, and has been refused by the revenue authorities on the ground that the result of such partition would be to form a separate estate liable for an annual amount of revenue less than five rupees. The terms "perfect partition" and "imperfect partition" are defined in Section 96 in these terms. Partition is either perfect or imperfect. Perfect partition means the division of a 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. The term "estate" is defined in Clause (6) of Section 3. It is not contended that the present suit is a suit for perfect partition. The plaintiff does not seek to effect a division of a revenue-paying estate into two or more such estates, each separately liable for the revenue assessed thereon. The contesting defendants urge, however, that the suit is in essence one for imperfect partition; in other words, that the plaintiff really seeks a division of a revenue-paying estate into two or more portions jointly liable for the revenue assessed on the entire estate.

(3.) The true scope of Section 154 has been the subject of judicial decisions by no means easy to reconcile. But before we consider them, we may describe the scope of the suit. The property in dispute admittedly belonged to one Khusal Raj; he left two sons, each of whom obtained one-half share of the taluk. The plaintiff claims to have acquired an interest to the extent of two annas and ten gandas of the disputed property at a sale in execution of a decree on a mortgage granted by the descendants of the second son of the original owner. The plaintiff alleges that by virtue of his purchase at the mortgage sale, he acquired an interest in a tract of land which is described in Schedules (1) and (2) attached to the plaint. Schedule (1) sets out the boundaries of an area of 580 acres 3 rods and 16 poles. Schedule (2) sets out the boundaries of an area of 15 hals, which, we are informed, corresponds approximately to 45 acres. The plaintiff asserts that he acquired title, not to all the lands in Schedule (1) but only to such of the lands comprised therein as are not included in Schedule (2); in other words the lands in Schedule (2) have to be excluded from the lands in Schedule (1) in order that we may ascertain the precise area claimed by the plaintiff by virtue of his purchase. There is a third schedule annexed to the plaint, which describes an area of 1 hal or 3 acres within certain boundaries. This area, however, is not situated in the same village as the lands of Schedule (1). The lands of Schedule (1) and consequently the lands of Schedule (2) are situated in village Hizla, whereas the land of Schedule (3) is situated in village Badahura. The plaint narrates the history of the disputed lands and makes out that the specific lands covered by the mortgage represent a demarcated plot, corresponding to a specific share in the taluk. The case for the plaintiff consequently is that the specific area which he invites the Court to divide as between himself and the contesting defendants represents a share of the taluk. What is asserted is, not that there was a previous partition of the taluk but that the persons interested in all the lands of the taluk have by mutual arrangement, held possession of specific lands as corresponding, more or less approximately, to the shares held by them in the entire property. The question arises, whether Section 154 of the Assam Land and Revenue Regulation bars the partition of lands, in these circumstances, by a Civil Court, merely because the lands are comprised in a revenue-paying estate. The defendants have invited us to hold, on the authorities which will be presently mentioned, that the question should be answered in the affirmative and that the only remedy of the plaintiff is by a proceeding before the revenue authorities for partition of the disputed tract.