SHIAM SUNDER Vs. SURTHA SINGH

JUDGEMENT

(1.) The plaintiff and the defendants were co-sharers in the village Keshodaspur; and by a partition effected between them some years ago their shares were separated and the plaintiff was allotted land in three of the mahals formed at the time. The village did not contain any distinct abadi area within its limits. The site occupied by the houses of the tenants of Keshodaspur, Jogidaspur, Muradpur and Baldiya was common, and was surveyed as a part of the village of Baldiya and included in the record of rights of that village, but it was recorded that the said abadi site was the common or shamlat property of the sharers of the four villages aforesaid. In the Khasra of the village of Baldiya different plots were recorded as having been in the possession of different co-sharer of the said villages separately. But the fact remains that so far as the proprietary right or co-sharership was concerned the entire abadi site surveyed or included in Baldiya was the common property of the co-sharers of all the villages aforesaid to the extent specified in the khasra of the village of Baldiya.

(2.) The abadi site was not included in the partition of the village of Keshodaspur because it was not surveyed as a part and parcel of that village. The present suit was filed by the plaintiff for the partition of the abadi site against the other co- sharers of the village of Keshodaspur; and the question for consideration was whether the cognizance of such a suit was barred by the operation of Section 233 (K) of the U.P. Land Revenue Act (3 of 1901). That section forbids a civil Court from taking cognizance of any suit for the partition or union of mahals except as provided in Secs.111 and 112 of that Act, in other words, it forbids the distribution of land by division between the co-sharers of a mahal except by an application to the revenue Court.

(3.) The Court of first instance found that the plaintiff was entitled to claim a partition in a civil Court and granted a preliminary decree for partition; but the lower appellate Court held that a civil Court was not competent to entertain the suit, inasmuch as the land of which the partition was claimed was land included in a mahal within the meaning of Section 233(K) of the aforesaid Act.