MT MATANGINI GHOSE Vs. MTMONMOHINI GHOSE

JUDGEMENT

(1.) This appeal depends upon the true construction of Section 149, Estates Partition Act (8 of 1876), now Section 119 of Act Section 1897. Section 149 runs as follows: No order of a revenue officer...(d) made under Part IV, Part V, Part VI, Part VII, Part VIII, (except as provided in the next succeeding section) or Part IX .... shall be liable to be contested or set aside by a suit in any Court, or in any manner other than as is expressly provided in the Act.

(2.) The material facts for the purposes of this appeal are few and simple. An application for partition of a parent estate No. 397 in the Dacca Collectorate was preferred under the Act of 1876 by the registered proprietors The partition was duly effected on 25 August 1912, and the appellants as recorded proprietors were put into possession of Sahams No. 15356 and No. 15340 which had been carved out of the parent estate, and had been allotted to them respectively. Many years after the partition proceedings had been completed the respondents filed the present suit No. 260 of 1924, in which they claimed a declaration that they were entitled to an 8 gandas share in kharija taluki right in Mauza Jhougara, part of the parent <JGN>Page</JGN> 2 of 3 estate No. 397, and that after partition they were entitled it? kharija taluki right to a 3-annas 15-gandas share in Saham No 15356 and to-a 3-annas 17-gandas share in Saham No. 15340. They also claimed a decree for possession of their said shares and incidental relief.

(3.) The trial Court dismissed the suit upon the ground that it was not maintainable under Section 149, Estates Partition Act, 1876. The lower appellate Court reversed the decree of the trial Court, holding that the suit was maintainable and remitted the case to the trial Court to be heard and determined on the merits. The question that falls for determination is whether or not in the suit as framed an order of a revenue officer within Section 149(d) is liable to be contested or set aside.