SACHINDRA KUMAR ROY Vs. NABENDRA KISHORE ROY

JUDGEMENT

(1.) The plaint in this suit out of which this appeal has arisen was headed as under the provisions of the Civil Procedure Code, a petition praying for relief by way of a declaration cancelling the order of the Revenue Court that a revenue paying estate is not liable to partition.

(2.) The plaintiff is the owner of an eight annas share, and the defendants are the owners of the other eight annas share of an estate, bearing Towji No. 41 of the Noakhali Collectorate and named Kharija Taluk Gour Kishore Roy. The plaintiff applied to the Collector for partition of the estate under the Estates Partition Act (5 of 1897). To this the defendants objected on the ground of Section 7 of the Act, namely, that the lands of the estate had already been divided by private arrangement formally made and agreed to by all the proprietors, and each proprietor has, in pursuance of such arrangement, taken possession of separate lands to be held in severalty as representing his interest in the estate. The Collector and the Commissioner overruled the objection, but the Board of Revenue rejected the plaintiff's prayer for partition. The plaintiff then instituted the present suit with the following prayers: (a) For a declaration that the estate is liable to be partitioned, (b) that a decree may be passed against the defendants for the costs and (c) that any other relief may be granted which the plaintiff may be entitled to.

(3.) The Subordinate Judge has decreed the suit declaring that the estate is liable to partition under Act 5 of 1897. The defendants have then, preferred this appeal. The estate admittedly consists of the following: (a) Two groups of tenancies, in respect of one group of which the plaintiff has granted mirashi ijara potta to the defendants, and in respect of the other the defendants have granted mirashi ijara potta to the plaintiff, (b) an oshat taluk, (c) certain nishkar and chakran lands and (d) some khas lands.