SHAMBHU SINGH Vs. DALJIT SINGH

JUDGEMENT

(1.) This appeal arises out of a suit in which the plaintiff claims a declaration of his title to and possession of a certain plot of land. The case will be found reported in 13 A.L.J. 779. It is only necessary to shortly sum-up the facts which have been found by both the courts below. In a particular mahal there were nine pattis formed in the year 1875. Patti No. 9 was a shamilat patti common to all the co- sharers. In course of time patti No. 2 became the property of plaintiff. The defendant was a co-sharer in pattis Nos. 4 and 5 and also in the shamilat patti No. 9. The plaintiff, or his predecessor in title, had no share in pattis Nos. 4 and 5. Iu 1904, the defendant made an application for perfect partition in the Revenue Court. He asked that a separate mahal might be made of his share in pattis Nos. 4 and 5 and also in No. 9. For some reason or another this application was dropped and a fresh application was made for imperfect partition in the year 1905. There is nothing to show whether or not the predecessor in title of the plaintiff, Dular Singh, ever got notice of this second application. It resulted in a separate patti being formed of the defendant s share in pattis Nos. 4 and 5, the shamilat patti remaining unpartitioned. The plaintiff instituted the present suit, alleging that in the partition made on the second application of the defendant, a portion of his patti No. 2 was erroneously brought into the defendant s new patti. He accordingly claimed a declaration of his title to the plot and possession if he should be found out of possession. Both the courts agreed that there was a mistake and that portion of the plaintiff s land was by mistake given to the defendant. The first two courts decided in his favour. A learned Judge of this Court held that the suit was barred by the provisions of Section 233, Clause (k), of the Land Revenue Act of 1901. That section provides that no person shall institute any suit or other proceeding in the Civil Court with respect to partition or union of mahals except as provided in Sections 111 and 112. Sections 111 and 112 provide that if in partition proceedings in the Revenue Court questions of title arise, the Collector may, if he thinks fit, try the question himself in which case his to adopt the procedure therein mentioned and his decree is deemed the decree of the Civil Court. It seems to me extremely difficult to hold that the present suit is a suit "with respect to partition or union of mahals." It is admitted that, if the very same suit was brought by a person who had not received notice or by reason of his not being a recorded co- sharer was not a party to the partition proceedings, his suit would not have been barred by Section 293(k). But it is said that the section is a bar to the suit if the plaintiff was a party to the partition proceedings in the Revenue Court. I have great difficulty in seeing how a suit is a suit "in respect of partition" if brought by one person while it is not a suit "in respect of partition" if brought by another. The suit, if brought by a person who was not a party to the Revenue Court proceedings, affects the partition neither more nor less than it would if he was a person who was a party to the Revenue Court proceedings. It would disturb or upset the recent partition as much and as little in the one case as in the other. The section deals with suits of a particular nature, not with the parties to it. One has to carefully bear in mind the distinction between holding that the suit is a suit which the plaintiff cannot institute in the Civil Court and holding that the proceedings in the Revenue Court are a defence to the suit. If the suit is one which cannot be instituted, it is at once thrown out on the ground that the Civil Court has no jurisdiction to hear it. It is quite a different matter if, after the case had been heard, the court finds that the proceedings in the Revenue Court disclose a defence to the suit, for example, on the ground of res judicata. The facts of the present case seem to me to illustrate how dangerous it would be to hold that a suit like the present could not be instituted in the Civil Court, and in this connection I may remark that a party has a right to institute in the Civil Court any suit which he is not by the Legislature in clear terms prevented from instituting. In my opinion, under the circumstances of the present case, we are entitled and bound to treat the second application which was made by the defendant in the year 1905, as an application for the partition of pattis 4 and 5 alone. These were the only two pattis which were, as a matter of fact, dealt with in the partition. This being so, the present plaintiff or his predecessor in title was in no way interested in the manner in which pattis 4 and 5 were partitioned. The plaintiff s predecessor in title had no share in pattis 4 and 5 and the applicant for partition had no share in patti No. 2, which belonged to the plaintiff s predecessor in title. It seems to me that the plaintiff was not even a necessary party to this second application in so far as it was for the partition of pattis 4 and 5. He would only be a necessary party to a partition which was for the division of the property in which he was concerned. In my opinion the present suit was not barred by the provisions of Section 233, Clause (k), of the Land Revenue Act, and, as the findings are in favour of the plaintiff, I think the decree of the lower appellate court ought to be restored. I would allow the appeal.

(2.) I may add one word about the case of Muhammad Sadiq v. Laute Ram (1901) I.L.R. 23 All. 291. It seems to me that the plaintiff was there asking the Civil Court to partition what was part and parcel of the property which could only be partitioned by the Revenue Court. Tudball, J.

(3.) I fully agree. Partition means, as pointed out in Section 106 of the Revenue Act, division not only of a mahal but also a part of a mahal. In the present case what was actually partitioned on the basis of the application of the 25th of March, 1905, was a part of the mahal in which the present plaintiff, or his predecessor in title, had no concern. It was immaterial to him how the land of those two pattis was divided amongst the co-sharers therein. What seems to have happened is that in dividing the land of those two pattis the partition court erroneously thought that a certain plot was within the boundaries of those two pattis and took it into consideration in the partition. Of that fact the plaintiff, or his predecessor is title probably had not the slightest information at all. It was only when the plaintiff s possession began to be disturbed that he had any knowledge of what had occurred. He has come into court with the present suit, which in substance and in form is a simple suit for possession of land on the basis of title on the allegation that certain persons who had no title thereto had trespassed on it and some had taken it into their possession. I believe that, as a matter of fact, he made no objection to the partition proceedings nor was it necessary for him to do so. In my opinion in the circumstances of this case it is utterly impossible to say that the suit is a suit in respect of the partition of pattis Nos. 4 and 5. It is really a suit in respect of the trespass committed by certain persons on property to which they had no title whatsoever. In the course of the arguments attention has been called to the decision of this Court in Muhammad Sadiq v. Laute Ram (1901) I.L.R. 23 All. 291 and great stress has been laid upon certain remarks to be found in the Judgment therein. The facts of that case were simple. There was a partition. All the co-sharers were parties to that partition. The lands constituting the mahal were actually divided among the co-sharers. On some of the lands stood some trees. The plaintiff in that case came forward with a civil suit for the partition of the trees on the allegation that the Revenue Court had not, as a matter of fact, partitioned the trees and moreover had no jurisdiction whatsoever to partition the trees. Therefore he asked for division of the trees among the persons concerned. This Court held and I think rightly that the Revenue Court had jurisdiction to divide up not only the land but also the trees upon it, and that it had actually divided both the land and the trees. The suit was one which was barred by Section 241(f) of the old Land Revenue Act, which deprived the Civil Court of any jurisdiction in a matter relating to the distribution of the land among the co-sharers. In my opinion the case was rightly decided on the facts thereof, and any remarks which are to be found are to be read in conjunction with the facts and circumstances of that case and they are not to be taken out of their setting and placed apart as being general, principles which will govern the facts and circumstances of every other case.