RAMESHAR DAS Vs. SHIAM LAL

JUDGEMENT

(1.) The parties are co-sharers of a certain village, and a perfect partition was made by the revenue Court in 1322 F in accordance with which plot No. 158 fell in the plaintiff's share. This plot had a number of trees upon it and the plaintiff sued for a declaration that the 44 mahua trees now standing upon that plot belonged to him only and that the defendants had no trees upon that plot.

(2.) The Courts below o have dismissed the suit on the ground that it is barred by Section 233 k of the U.P. Land Revenue Act, 1901.

(3.) The plaintiff argues in second appeal that the suit was not barred by the provisions of Section 233(k). The question whether or not the suit was barred by the provisions of the section relied upon by the Courts below depends upon the nature of the suit. According to the partition Plot No. 158 had upon it 65 mahua trees out of which 54 trees were allotted to the plaintiffs and the remaining 11 mauha trees were allotted to the defendants. It is common ground that at present there are only 44 mahua trees upon the plot. If the plaintiff had come to Court alleging that 54 out of the 65 mahua trees standing on the plot at the time of partition had been allotted to him and that the trees allotted to the defendants had all been cut down or had fallen down and that the 44 trees still standing all belonged to him and none of them belonged to the defendants: then I quite agree that the suit would not have been barred by Section 233(k). The question is whether the claim is made in accordance with the partition or whether it is made in contravention of the partition. In the present suit the plaintiff does not allege that the mahua trees belonging to the defendants on this plot have all fallen down or been cut down and that, therefore, the remaining trees Belong to him. On the contrary, his case is that the allotment of trees made in the partition proceedings was quite wrong. He says that, as a matter of fact, there were only 44 mauha trees standing upon the plot even at the time of partition and that they all belonged to him, but by a mistake the kura darakhtan recorded the fact that 65 mahua trees were standing on the plot and that 54 of them belonged to the plaintiff while the remaining 11 belonged to the defendants. His plea is that the entries made in the kura darakhtan are wrong and that the defendants in fact never had any mahua trees on this plot allotted to them by the partition. His claim is, therefore, in direct contravention of the partition proceedings. In effect he seeks to set aside the result of the revenue Court partition.