PARSIDDHAN RAI Vs. DHANESHAR RAI

JUDGEMENT

(1.) THIS appeal arises out of certain proceedings for the partition of a mahal. The applicant for partition was Dhaneshar Rai. There were two other co-sharers, Parsidhan Rai and a certain lady, who held jointly. The two parties were in a sense proprietors of the mahal in equal shares. When the formal notice of the application for partition was issued no objection was taken by the opposite party; but when the Assistant Collector sat down to prepare the partition proceeding under Section 114 of the Land Revenue Act a very definite and specific petition of objection was presented to him. Parsidhan Rai on behalf of himself and his co-sharer took this point. He said that there had been by mutual consent an informal partition a great many years ago, of a considerable portion of the lands of the mahal. He added that this partition had since been recognized in the revenue records, where the lands of the mahal were now recorded as falling into three distinct pattis: of one patti Dhaneshar Rai was the owner; of the other he (Parsidhan Rai) himself with his coparcener was owners, and the third was the shamilat patti consisting of the joint lands which alone remained to be divided between the parties. He said that when he received the notice of Dhaneshar Rai's application for partition, it never occurred to him that it was anything but an application for the separation of the sbamilat patti (or joint lands) into two equal shares that he now wished to ask the Assistant Collector so to draw up the partition proceeding as to safeguard the rights to himself and his co-parcener under the older partition by a mutual consent. Obviously what he wanted was that two mahals might be formed as desired by Dhaneshar Rai, that the lands respectively held in severalty by the two parties should be assigned to their respective mahals, and that the remaining joint lands, that is to say, those shown in the revenue records as belonging to the patti shamilat should be divided equally. To this Dhaneshar Rai's objection was that, while he had no objection to the lands enjoyed in severalty by the parties being assigned to their respective mahals he wanted an enquiry into the area and value of the lands so held in severalty, maintaining that there would be found to be a deficiency in his lot, and he desired the sbarnilat patti to be divided, not into two equal shares, but in such a manner as to make up any deficiency in Value which might be found to exist between his patti and the patti of his opponents. The Assistant Collector in the first instance held that this was an objection which ought to have been presented under Section 110 of the Land Revenue Act; and he refused to entertain it at the stage which had been reached, namely, in connexion with the preparation of the partition proceeding. Against this order there was an appeal to the Collector and one of the points which has been strenuously argued before us to-day is that this appeal was incompetent. The question was not raised at the time; the point was argued out before the Collector and his decision was taken. We are quite satisfied that an appeal lay to the Collector under Section 210 of the Land Revenue Act. Clause (2) of that section seems to us to set the matter beyond dispute. The Collector held that the Assistant Collector had been wrong in refusing to entertain Parsidhau Rai's objection, and sent it back to him. The Assistant Collector then, having taken cognizance of the matter, held that he had before him an objection no matter how presented which did raise a question of proprietary title. He proceeded to consider whether he was to refer the parties to the civil Court, or whether he would decide the question himself. He expressly recorded his determination to proceed under Clause (c) of Sub-section (1) of Section 111 of the Land Revenue Act and to enquire into the merits of the objection himself. Having done so, he found clearly on the facts in favour of Parsidhan Rai, and he passed an order which gave effect to this finding. Against this Dhaneshar Rai appealed to the District Judge. The District Judge considered his appeal on the merits and affirmed the order of the Assistant Collector. There was a second appeal to this Court, and there Dhaneshar Rai raised the point that the original order of the Assistant Collector refusing to entertain Parsidhan Rai's objection, was an order which should have I been appealed from, not to the Collector, but to the District Judge. The learned Judge of this Court held that no question of proprietary title had been raised by Parsidhan Rai's objection. From this he went to hold that no appeal ought ever to have reached the civil Courts at all. On these findings he passed an order which purports to allow Dbaneshar Rai's appeal and which sends the record back to the Court of the Assistant Collector not with any imperative directions, for, according to the view taken by the learned Judge of this Court, he was incompetent to issue such, directions, but with certain advice as to the course now to be followed. The view of the learned single Judge of this Court that no question of proprietary title was raised by Parsidhan Rai's objection is contrary to a decision of two Judges in the case of Ram Narain v. Jagan Nath (1916) 38 All. 11582 I.C. 184. It seems to us that, when Parsidhan Rai said that he was himself, not merely holding in severalty for convenience of enjoyment a portion of the lands appertaining to a certain mahal, but was by virtue of private partition the owner of the same in severalty, along with his co- parcener Mt. Sahodra Kunwar and that Dhaneshar Rai had no interest whatsoever in the lands held by the other two under this private partition, ho was raising a question of proprietary title. The appeal to the Court of the District Judge was, in our opinion, a competent appeal. The question whether Parsidhan Rai should have been permitted to raise the point, when he allowed the period limited by the proclamation under Section 110 of the Land Revenue Act to expire, was essentially one for the revenue Courts to decide. The Collector seems to us to have dealt with the matter very sensibly. He was clearly of opinion that the nature of Dhaneshar Rai's application for pattition had not put his opponents on their guard as to the object which he was really pursuing in presenting that application, and that injustice would be done if Parsidhan Rai's objection were not heard on the merits. He was further of opinion, and we agree with him, that the wording of Section 114 of the Land Revenue Act was wide enough to admit of the Assistant Collectors entertaining the questions raised by Parsidhan Raie's petition and going into them. In our opinion the Collector, the Assistant Collector after the order of remand, and the learned District Judge in first appeal handled this matter correctly, in the interests of justice and in accordance with the law on the subject. We set aside the decree of the learned Judge of this Court and restore that of the lower appellate Court. Parsidhan Rai and Mt. Sahodra Kunwar, the appellants in the present appeal, are entitled to their costs of both hearings in this Court.