GANPAT Vs. BHANUDAS

JUDGEMENT

(1.) THERE are only three-points for decision in this second appeal. The facts of the case are sufficiently clear from the lower Courts' judgments. The first matter for decision is whether the finding of the learned District Judge in para. 5 of his judgment is correct or not. It has been urged before me, on the strength of the decisions reported in. Ghanya v. Ukand Rao [1908] 4 N.L.R. 9 and Tek-Chand v. Tulai [1909] 5 N.L.R. 103, cf. also Mulchand v.. Chandra Singh A.I.R. 1926 Nag. 433, that the law of survivorship not being applicable to absolute-occupancy land under the Tenancy Act of 1898, the plaintiff had no vested right by birth in the absolute occupancy land, Ragho died in 1918 and it is suggested that it is to this year one must look as to the law being applicable. The learned District Judge did not deal with this matter in detail, but held that the introduction of " survivorship" into Section 5, Tenancy Act, 1920, altered the position and that, therefore, an absolute occupancy tenancy stands on no different footing from that of any other joint family property. In view of the fact that Ragho died in 1918, it seems to me that the District Judge erred in coming to the conclusion he did. So long as defendant 1 is alive, the question who will inherit the tenancy rights in these occupancy fields does not seem to me to arise, for it is to the year 1918 we must look for the legal incidents applicable to the occupancy land in suit. I am of opinion, therefore, that the plaintiff-respondent is not entitled to claim partition of the absolute occupancy fields in question, and in this connexion I am of opinion that the decision of the Judge of the first Court, contained in para. 18 of his judgment, is correct.

(2.) THE second matter for decision is whether the District Judge exercised a. correct discretion in awarding a decree for partition. It has been urged in this connexion that the defendants only denied the plaintiff's right to partition as regards certain items of the property and that their attitude has not really been antagonistic to his right. On the whole, I do not think I will be justified in disturbing the discretion which the lower appellate Court has deliberately exercised in this connexion, and I see no reason for interference so far as the rest of the decree for partition is concerned.

(3.) A decree will accordingly be drawn up in supersession of that pissed by the lower appellate Court and in it the absolute occupancy lands will be excluded from partition, the plaintiff's claim being dismissed as regards them.