(DIWAN) BALWANT SINGH Vs. KUNWAR PARTAP SINGH

JUDGEMENT

(1.) This second appeal arises out of an application for partition made by the respondent under Section 107, U. P. Land Revenue Act (3 of 1901).

(2.) The applicant applied for partition stating that he was a co-sharer in a certain mahal to the extent of two annas, that the mahal was divided into several khatas, and that his two-anna share was in khata No. 1, (which was held in severalty by certain of the cosharers in the whole mahal). He also stated that there was a shamilat khata No. 5 in which he had a common interest along with the other co- sharers. He went on to say that there were always disputes between the parties (he had made all the co-sharers in the mahal parties as non-applicants to the case) in connexion with the collection of rent and payment of Government revenue. He, therefore, prayed for a complete mahal to be formed by partition of his two-anna share along with his interest in the shamilat land. Now a mahal is defined as local area under a separate engagement for the payment of land revenue. There are two kinds of partition, In "perfect partition" the whole mahal is divided and the several portions become separate mahals, each severally responsible for the revenue distributed thereon. In "imperfect partition" the several portions remain jointly responsible for the revenue assessed on the whole mahal: see Section 107, Land Revenue Act. A hasty perusal of the application might lead to the conclusion that the applicant merely wanted an imperfect partition. This would have freed him from liability to disputes in connexion with the collection of rent. A more careful study of the application clearly shows that the applicant wished for perfect partition. He wanted a separate mahal for himself and he wanted to avoid disputes as to the payment of revenue. Moreover, he asked that he should be given a portion of the abadi equivalent to his share.

(3.) A proclamation was issued calling on the recorded co-sharers to state their objections to the partition. No objection was filed within the time allowed, and presumably the partition proceeding declaring and detailing how the partition was to be made was framed under Section 114, Land Revenue Act. The present appellants are co-sharers in a khata or patti No. 3. They had apparently, and not without excuse, understood that the partition would be made merely by giving the applicant a specific area in khata No. 1, which he along with certain other co- sharers held in severalty and a portion of the shamlat khata No. 5. The partition proceeding, however, recorded that the partition would be made by awarding the applicant a portion of the whole mahal; that is to say in all the khatas including those held in severalty by co-sharers other than the applicant.