GANESH TEWARI Vs. SALIK PANDE

JUDGEMENT

(1.) THE suit out of which this appeal arises was one in which a single co-sharer in a mahal sued the remaining co-sharers in order to enforce certain alleged rights. It appears that there was in the mahal in question an occupancy holding belonging to one Musammat Samundra Kuar who also occupied as an appurtenance to her holding a house situated in the same mahal. This Musammat Samundra Kuar appears to have entered into a bargain with one of the co-sharers, namely, the 1st defendant in this suit, and executed in his favour what purports to be a sale-deed of her occupancy holding and of her house. Apparently the remaining co-sharers are related to defendant No. 1 and are acting with him in this matter, for the plaintiff says that they refused to join in the present suit. THE plaintiff comes into Court claiming either a declaration that he is jointly in possession with all the defendants of the plots of land which formed the occupancy holding of Musammat Samundra Kuar and the site of her house, or in the alternative a decree for joint possession of the same. He has got a decree for joint possession. Defendant No. 1 and some other defendants have appealed to this Court. THE present suit was instituted on September the 24th, 1912. On March the 20th, 1912, an application for a partition of this mahal had been filed in a Ravenue Court by Ganesh Tewari, defendant No. 1, and notices had been issued to the other co-sharers to appear and present objections in the usual manner. No objection had been filed by the plaintiff in the Revenue Court and, as a matter of fact, no question of proprietary title really arises in the present suit. THE plaintiff s case in this suit is that certain co-sharers have secured possession in severalty of certain land which ought to be held jointly by all the co-sharers in the mahal. I am clearly of opinion that the present suit was barred after Ganesh Tewari s application for partition had been presented and notices issued accordingly. THE plaintiff s object in the matter is sufficiently clear. In making this partition the Assistant Collector, acting under Section 117 of the Land Revenue Act, must necessarily begin by ascertaining what lands in the mahal are held in severalty by different co-sharers THE lands in suit in this case arc apparently held in severalty by some or all of the defendants. This is apparent because plaintiff has been given a decred for recovery of joint possession and not; simple declaration. THE partition would then have to proceed in accordance with the actual possession of the defendants subject only to the provisions of Section 125 of the Land Revenue Act. THE whole object of the present suit is to prevent this. THE plaintiff s desire is, if possible, by executing this decree to get back into joint possession with all the other cosharers of the lands referred to in the plaint, so that they may not be treated during the partition as held in severalty by some co-sharer or co-sharers other than himself. He is, therefore, in my opinion, bringing a suit in respect of the partition of a mahal within the meaning of Section 233, Clause (k), of the Land Revenue Act. A wide interpretation has been placed upon these words by this Court in several rulings, as for instance in Nathi Mal v. Tej Singh 29 A. 601 : 4. A.L.J. 578 : A.W.N. (1907) 190. THE present case seems to me a stronger one against the plaintiff than the case above referred to. THE effect of the execution of this present decree for joint possession, while the partition proceedings are going on, might be of the most undesirable nature and might lead directly to a serious conflict of jurisdiction. Once an application for partition had been instituted before a Revenue Court the apportionment of the various lands of the mahal amongst different co-sharers became a matter peculiarly within the jurisdiction of that Court under the provisions of the Land Revenue Act and the Civil Court is, in my opinion, precluded from interfering. For these reasons 1 accept this appeal, and setting aside the decrees of both the Courts below, I dismiss this suit with costs throughout including in this Court fees on the higher scale.