JITENDRA GOPAL ROY Vs. MATANGINTI ALIAS SUSAMOYI DEBYA

JUDGEMENT

(1.) This is an appeal from the judgment of the learned Subordinate Judge, by which he has decided in favour of the plaintiffs, and the learned Vakil for the appellant, who is defendant No. 2, has relied upon three points. First of all, he argued that this suit would not lie. The second point he relied upon was that the Deputy Collector had power to make the order which he did under Section 83 of the Estates Partition Act of 1897, and...thirdly, if he failed upon the first two points, then he wishes to rely upon the argument that the suit was barred by the Limitation Act. I will take the second point first, as it is more convenient to deal with that in the first instance. Section 83 provides as follows : When the Deputy Collector finds in a parent estate any land which is held at a fixed rent on a Patni or other permanent intermediate tenure created by all the proprietors of the estate or admitted by all the recorded proprietors to have been so created," he may make certain orders provided in the section.

(2.) With regard to the facts the learned Subordinate Judge stated as follows: "it is an admitted fact in the case that the defendants Patni was created by the plaintiffs predecessor alone who was one of the co-sharer landlords of the Mehal," and, in view of those facts, the learned Judge came to the conclusion that the Deputy Collector had no jurisdiction under Section 83 to make the order which in fast he did, as the Patni was not created by all the proprietors of the estate, and, it had not been admitted by all the recorded proprietors to have been so created. I agree with the conclusion at which both the lower Courts arrived: I think the order which the Deputy Collector made was made without jurisdiction.

(3.) Now, with regard to the first point the learned Vakil relied upon Section 119 of the Estates Partition Act, which provides, as far as is material to this point, as follows : "No order made under Section 20, Section 30, Chapter V, Chapter VII, Chapter VIII, Chapter IX (except Section 81)"--(Chapter IX includes Section 83)--"shall be liable to be contested or set aside by suit in any Court, or by any means other than those expressly provided in this Act."