SASI KANTA ACHARJEE CHOUDHURY Vs. RAJENDRA KUMAR CHAKRAVARTY

JUDGEMENT

(1.) Estate No. 2 of the Mymensingh Collectorate was partitioned by the partition Deputy Collector into separate estates on 24 February 1926. We are informed that the partition proceedings are still pending in appeal before the Collector. By the order of the partition Deputy Collector under Section 57, Estates Partition Act, the plaintiffs in the suit out of which this appeal arises, in their share got Rupees 38-1-0 as assets out of a Mouza called Daribhabakhali. The Deputy Collector partitioned the estate on the footing that the estate was not divided by private arrangement formally agreed to by all the proprietors and that the proprietors were not in possession of separate lands representing their interest in the estate. On 7 September 1928, plaintiffs commenced the present suit in the Court of the Subordinate Judge at Mymensingh for a declaration that the interest in the parent estate is the proprietary right over certain specific lands only in one Mouza, viz,, Mouza Daribhabakhali in pursuance of a private arrangement formally made and agreed to by all the proprietors of the Estate and also a decree made by the civil Court in Partition Suit No. 91 of 1890. They accordingly prayed for a declaration that they were entitled to have their names registered under the provisions of the Land Registration Act to the extent of their interest and to have the specific lands in their possession assigned to them as a separate estate.

(2.) Only defendant 1 contested the suit. His main defences are: (1) that Estate No. 2 was never amicably partitioned between the proprietors thereof, but that for convenience of possession some cosharers hold some mouzas exclusively and similarly other co-sharer hold some other mouzas exclusively and the remaining mouzas are held by all the co-sharers jointly, and (2) that the civil Court has no jurisdiction to interfere with the allotments made by the partition Deputy Collector.

(3.) The trial Court found that there had been an amicable partition as alleged by the plaintiffs and decreed the suit. On appeal by defendant 1 to the lower appellate Court, the learned Additional District Judge has affirmed the finding of the trial Court that there was a private partition. He however rejected the plaintiffs prayer for a declaration that they were entitled to have their names registered in respect of the specific lands belonging to them in only one mouza under the provisions of the Land Registration Act. Subject to the above modification he has affirmed the decree of the trial Court. Hence the present second appeal by defendant 1.