MADHO DUBE Vs. BAHADUR KHAN

JUDGEMENT

(1.) The sole point raised by this Letters Patent Appeal is whether the suit giving rise to this appeal is barred by Section 283(k), Land Revenue Act, [III (3) of 1901]. We need give an outline of only such facts as may place the point at issue in its setting. On 15-7-1876, Jhagru Rai, the predecessor-in-title of the plaintiff- respondent, executed a mortgage with possession in favour of Nand Gopal Dube, the predecessor-in-title of the defendants-appellants, by which a certain share in village Sikanderpur was mortgaged for a term of 11 years. Sometime prior to 1908, the mortgage entry disappeared from the revenue papers and the mortgaged property was treated as property held in full proprietary interest. Partition proceedings were held in the revenue Court between 1903 and 1908 as a result of which the mortgaged property was assigned to the lot of the mortgagee and was described as property held in full proprietary interest. In 1932, the present suit was brought by the plaintiff for redemption of the mortgage against defendants 1 to 7, who were the legal representatives of Nand Gopal Dube, the mortgagee, and against defendant 8 the plaintiff's vendor who was one of the heirs of Jhagra Rai, the mortgagor.

(2.) In defence, two pleas were taken by the defendants : (1) that by reason of certain events which took place after the execution of the mortgage, the mortgage was extinguished and did not subsist on the date of the suit and (2) that the claim was barred by Section 283(k), Land Revenue Act. The first plea may be dismissed with the observation that the facts set up by the defendants were not established and the mortgage was held to be subsisting on the date of the suit. With regard to the second point the learned single Judge of this Court has held that Section 233 (k), Land Revenue Act, did not bar the suit. In the result, the learned single Judge affirmed the decrees passed by the lower Courts granting the claim for redemption in favour of the plaintiff. Against the judgment of the learned single Judge, this appeal has been brought under Section 10, Letters Patent. In order to appreciate the controversy between the parties, it is necessary to examine the language of Section 288(k), Land Revenue Act. That section, so far as it is material, runs as follows: No person shall institute any suit or other proceeding in the civil Court with respect to... (k) partition or union of mahals except as provided in Secs.111 and 112.

(3.) It is manifest that this section bars the institution of the suit or other proceeding in the Civil Court, if the suit or the proceeding in question is of the nature described in the section. The controversy, therefore, resolves itself into the question also whether the suit or proceeding is..."with respect to partition of mahals". The word mahal has been defined in Section 4(4) as "any local area held under a separate engagement for the payment of the land revenue". Section 106, Land Revenue Act defines partition to mean the division of a mahal or of a part of a mahal into two or more portions each consisting of one or more shares . In order to judge what are the necessary steps in partition proceedings, and what questions can be raised in those proceedings, it is necessary to examine the scheme of Chap. VII, which deals with partition and union of mahals.