SHAH TAJMUL ALI Vs. KAMALA RANJAN ROY

JUDGEMENT

(1.) This appeal is on behalf of defendant 1 and arises out of a suit originally brought by the plaintiff, a ward of Court, through the Manager of the Court of Wards, for a declaration that certain proceedings purported to have been taken under the Estates Partition Act (Act 5 of 1897 B. C.) are void from a particular point of time and that every thing done thereafter including the partition of a revenue paying estate is void. The Subordinate Judge has granted a decree to the plaintiff and hence the present appeal by defendant 1. There are numerous defendants to this suit. The facts on which the present appeal depends lie within a very small compass and are not in dispute. They may be briefly stated as follows: In 1911 proceedings for the partition of Tauzi No. 31 of the Tipperah Collectorate consisting of 39 Mouzas were started and the Deputy Collector made the final partition as provided by the Estates Partition Act. The partition was approved by the Collector (See part 2, p. 13) order sheet K. An appeal was taken to the Commissioner as appears from the memorandum of appeal, Ex. 7, Part 2, p. 23.

(2.) The Commissioner heard the appeal on 1 July 1921 (see part 2, p. 25). The gist of the order, about which we shall have to advert later in greater detail, is that he sent back the case to the Collector for a fresh partition. The controversy which was raised before the learned Commissioner on behalf of the plaintiff, who was represented by Mr. Haliday, Manager, Sarail Wards Estate, was mainly this, viz. that he does not want to take the Putni tenures and part of Putni tenures allotted to his Saham, for these tenures were not created by him or his predecessor in interest, but were created by other co-sharers who were in exclusive possession of the lands comprised in the Putnis. The loss which the Sarail Estate will suffer was stressed and the danger to the Government Revenue was indicated. Against this order of the learned Commissioner of the Chittagong Division, defendant 25,one co-sharer, filed an appeal to the Board of Revenue. It may be stated here that one of the questions raised in the suit is whether an appeal lay to the Board of Revenue under the Act. Proceeding now with the narrative of facts it appears that the Board heard the appeal and by its order dated 30th January 1928 (Ex. 5, Part 2, p. 28) set aside the order of remand with the result that the partition approved by the Collector was affirmed by the Board of Revenue. It does not appear that the question of the want of jurisdiction of the Board to hear the appeal was raised before the Board at the time of the hearing of the appeal but the plaintiff afterwards filed a petition of review (65 of 1925) (p. 31, part 2), in which the point questioning the jurisdiction of the Board was raised. The Board rejected the application for review on 14 November 1925, (Ex. 6, p. 41). In the meantime possession had been delivered to the parties according to the allotments. See order sheet 11 May 1923 (Ex. K, p. 20 part 2). In para Section 7 to 11 of the plaint, the plaintiff complains that the Collector allotted to the plaintiff's share 5 entire mouzas and portions of 3 mouzas specified in table A and 4 entire mauzas as shown in table B, that out of the said mouzas the mouzas of table A and certain shares of mouzas of table B were let out in leases by some of the proprietors other than plaintiff's predecessors and the plaintiffs without their consent, that the plaintiffs are not bound by the said leases and they would after the partition attach under the law to lands and mouzas allotted to the proprietors who or whose predecessors in interest created those leases, that in the partition proceedings the lessees were not made parties and they are not willing to give up possession to the plaintiffs and, if after any litigation to recover possession the plaintiffs are unable to get possession of the said mouzas freed from the leases, the assets of the mouzas allotted to the plaintiff's share will be greatly reduced. The plaintiff has accordingly brought the suit for a declaration that the order of the Board of Revenue was ultra vires of the statute and the final partition is not binding on the plaintiff. Several defences were taken in the suit, the nature of which will appear from the grounds taken in his appeal which will be presently set forth. The Subordinate Judge has negatived all the defences and has given the declaration asked for by the plaintiff. Hence the present appeal. In appeal the following grounds have been taken:

(3.) (1) Under Sub-section 57 and 59 and Sub-section 90 and 113, Estates Partition Act (Act 5 of 1897) an appeal did he to the Board of Revenue against the order of the Commissioner directing a fresh partition. (2) Assuming an appeal did not he the Board's hearing of the appeal was an irregular assumption of jurisdiction and there was no inherent want of jurisdiction in the Board which was the appellate authority, as this might have been determined by the Board at a later stage. (3) The civil Court had no jurisdiction to entertain the suit. Such jurisdiction is impliedly barred.