AULAD HUSAIN Vs. (SYED) NASIR HUSAIN

JUDGEMENT

(1.) THIS is a second appeal by certain defendants against a decree of a learned Subordinate Judge passed in first appeal in a partition suit. The plaintiffs who are members of the same family as the defendants are descended from a common ancestor Syed Aulad Husain. The plaintiffs were absent from the village in question for many years being in service in Hyderabad. They claimed that they had a right to the partition of these two houses because they were ancestral houses. The defence was that house No. 2 was divided into two portions and that this house as it stood now was not an ancestral house. The lower appellate Court has come to certain findings of fact on this point and it has come to the finding of fact that house No. 2 has been recently re-built in the southern portion by certain defendants but that it has not been re-built in the northern portion by the defendants. The claim that is put before us in second appeal is that the finding of the lower appellate Court is wrong on this point in regard to the northern portion of the house. (The judgment after dismissing this point as finding of fact proceeded.) We do not think, therefore, that there is any ground.) for interference with this finding and order.

(2.) THE only other point which was argued was a point of jurisdiction and learned Counsel alleged that the suit was not cognisable by the civil Court. Now the plaint asked for a partition of two houses on the grounds that these were jointly owned by the family and that the plaintiffs should receive their one-fifth share together with open spaces in front of the doors and all their appurtenances according to law. THE plaint does not ask that any division should be made of the sites of houses, nor has the lower Court ordered any such division. THE argument of learned Counsel for the appellants is that the partition of the site of an abadi should be in the revenue Court. It is no doubt a fact that in making a partition of a mahal a revenue Court will also partition the abadi or village site and in making that partition under Section 118, Land Revenue Act, provision is made for the case where the dwelling house of one sharer has to be placed in land allotted to another co-sharer, but actually a partition proceeding always directs that so far as possible this should not happen and that the site of the dwelling house of one co-sharer should be alloted to the part of the abadi given to that co-sharer. All that the civil Court does in a partition case like the present is to divide the houses between the parties and to grant along with the portion of the house given to a party the right to occupy the site. It will thus become a matter for a subsequent partition of the abadi in the revenue Court as to whom that particular site is allotted. THEre is, therefore, no infringement of the jurisdiction of the revenue Court by the civil Court. Learned Counsel referred to a ruling in Shiamsundar V/s. Surata Singh 1926 24 ALJ 391. In that case there had been a partition of a mahal and there was no different abadi in that mahal, but there was a certain area on which. apparently there were some houses and that was dealt with at the partition as common or shamilat property of the co-sharers. Subsequently the plaintiffs filed a suit in the civil Court for partition of that shamilat area. A Bench of this Court held that such a suit for partition of an abadi did not lie in the civil Court. That suit was of an entirely different nature from the present and the ruling has no bearing on the present case. For these reasons we dismiss this second appeal with costs.