RAMCHANDRA NARAYAN Vs. JAIDEO RAMJI

JUDGEMENT

(1.) THE facts of this case are sufficiently clear from the lower Court's judgments, and the only point in dispute in the present second appeal is whether or not the doctrine of lis pendens applies to the case. This, in turn, largely depends on whether the partition proceedings, as evidenced by Ex. P - 1, the order therein, were contentious or not. Before dealing with this matter, however, I desire to allude to the fact that the pleader for the appellant desired me to take into account certain documents which were filed with the petition of appeal in the lower Court, as, it has been suggested, these would throw light on the question of whether the partition proceedings were or were not contentious. As regards these documents, an objectionable and erroneous practice was exercised of filing them with the petition of appeal under a note that they were filed "for facility of reference." These were documents which, if the plaintiff-appellant thought were necessary or relevant to his case, could and should have been filed in the first Court. If there were any good reason for not having produced them there, his proper procedure was to have filed an application in the lower appellate Court for their due admission there. Neither course was taken? and it was obviously attempted to have them brought on record, so to speak, by way of a side-door. The Judge of the lower appellate Court has very properly ignored these documents and not admitted them on record and I also am compelled to treat them accordingly.

(2.) THE one question in the case, therefore, is whether the partition proceedings were contentious or not. The order of the partitioning officer shows that the non-applicant in the partition proceedings had no objection to the partition. He had, however, advanced a claim to a share in the field with which we are not concerned, but, as the revenue officer had apparently pointed out to him that the field in question had been in exclusive possession of the other party for nearly seven years, he could not claim a share in it, the non-applicant thereupon concurred in this view. Can it not, in those circumstances, be said that the partition proceedings in question were contentious or not. The partition proceedings max be a priori non-contentious is an admitted proposition : cf. Chandan Singh v. Fakirgir [1915] 11 N.L.R. 21. The decision of Skinner, A.J.C., in Dhirajsingh v. Dinanath [1910] 6 N.L.R. 140, does not seem to be peculiarly apposite in the circumstances of the present case In the suit in question there has obviously been for some time a contest, and the mere fact that eventually a compromise decree was passed was held by the learned Acting Judicial Commissioner not to imply that this litis, contestatio had ceased. In its very nature, however, as has frequently been pointed out, partition proceeding is, in its essence, different from a suit. Every suit, prima facie, involves some contest between the parties, or a claim to be settled between them, and the latter proposition is true even of an uncontested suit, where what the plaintiff wishes is that he should obtain a decree by which he can effectively obtain his relief. In partition proceedings, parties on either side may be agreeable thereto, the main object being that a formal record should be made by the revenue Court of the arrangement they desired effected. In other words, the parties in a partition suit need not necessarily start with any difference between them, whereas, even in an uncontested civil suit, the position is very different. Every case of the sort must be decided on the particular merits thereof.

(3.) THIS principle, with all due deference, I fully coincide in and, if we apply it to the facts of the present case, there can, I think, be no question but that, on the terms of P.-1, the partition proceedings in question were utterly non-contentious. The decision of their Lordships of the Privy Council in Faiyaz Husain Khan v. Prag Narain [1907] 29 All. 339 contains nothing which, in my opinion, would imply that, in the present case, the doctrine of the pendens necessarily operated. Even if it can be held that the objection raised and withdrawn with reference to an entirely different field would have rendered the proceedings contentious, there has been no proof of when the objection was first raised, or even of when the non-applicant in the revenue proceedings was served with notice. I am of opinion, therefore, that the District Judge was correct in holding that there were no contentious proceedings regarding the land in suit.