ANANDA KISHORE CHOWDHRY Vs. DAIJE THAKURAIN

JUDGEMENT

(1.) This is an appeal on behalf of the plaintiffs in a suit for declaration that the immovable properties, which form the subject-matter of litigation, had been privately partitioned and could not form the subject-matter of partition by the Collector under the Estates Partition Act. There has been no investigation into the facts of the case, but the Subordinate Judge has dismissed the suit on several preliminary grounds, namely, first, that the suit was not maintainable under the provisions of Act V of 1897; secondly, that it was barred by limitation under Section 25 of that Act; thirdly, that under Section 119 of the Act, the plaintiffs were precluded from questioning the validity of the order for partition made by the Revenue Court; and fourthly, that the suit was barred under Section 42 of the Specific Relief Act.

(2.) The plaintiffs have appealed to this Court, and on their behalf it has been contended that the view taken by the Subordinate Judge on each of the above points is erroneous and that the case ought to be tried on the merits. In our opinion, this contention is well-founded and must prevail

(3.) It is obvious as regards the first ground that the Subordinate Judge has committed a serious error in applying the provisions of Act V of 1897 to the circumstances of this case. It appears that proceedings were commenced before the Collector for partition of the estate so far back as 1884, and from the papers placed before us, it is fairly clear that the order under Section 63 of Act VIII of 1876, which was in force when the partition proceedings were commenced, must have been made before 1897 when the Act now in force came into operation. We hold, therefore, that under Section 2, Clause (b) of Act V of 1897, all subsequent proceedings for partition must be carried on under Act VIII of 1876, as if Act V of 1897 had not been passed. It follows consequently that the Subordinate Judge ought to have determined the question of the maintainability of the suit with reference to the provisions, not of Act V of 1897 but of Act VIII of 1876. Now, let us turn for a moment to the provisions of Act VIII of 1876 and see whether the present suit is barred. Section 12 of Act VIII of 1876 provides that no partition of an estate in which private division has already been made is to be made by the Collector except on a joint petition of all the proprietors or by an order of the Civil Court. In other words, in a case in which is established that an estate has been privately partitioned, the Collector has no jurisdiction to partition it again under the Estates Partition Act, except in one or other of two contingencies, namely, either upon the joint petition of all the proprietors or by the order of the Civil Court. Section 21 provides that, if, in the opinion of the Collector, the application for partition fulfils the requirements of Secs.18 and 19, that is, is in proper form and is accompanied by the necessary documents, and if in his judgment there does not appear to be any objection to the making of the partition, he may invite objections thereto--one of the objections may be under Section 12 of the Act, for any of the proprietors upon issue of notice under Section 21 may appear before the Collector and contend that he has no jurisdiction to make the partition in view of the provisions of Section 12. If such objection is taken, it may be allowed by the Collector under Sec. 23 or it may be overruled by him under Section 31. In the latter contingency, the Collector directs that the application be admitted and declares the estate to be under partition. In the case before us, so far as we can gather from the materials on the record, an objection was taken that, in view of the provisions of Section 12, the Collector had no jurisdiction to make the partition. The allegation that there had been a private partition was challenged, and it was determined by the Collector and ultimately by the Board of Revenue, that the private partition set up was not established, and that consequently there was no bar to the partition of the estate. This order appears to have been made so far back as the 29 April 1886. It is now contended by the respondent that the decision of the Revenue authorities upon the question of the reality of the alleged private partition is conclusive between the parties, and that the Civil Court has no jurisdiction to investigate whether or not it was competent to the Collector to make the partition in view of the provisions of Section 12. In support of this view, reliance is placed upon the provisions of Section 148 of Act VIII of 1876. In our opinion the section mentioned is of no assistance to the respondent. That section provides that certain specified orders are not liable to be contested or set aside by a suit in the Civil Court. An order under Section 31 overruling an objection taken under Section 21 to the effect that the partition cannot proceed in view of the provisions of Section 12 does not fall within the scope of Section 149. It is suggested by the learned vakil for the respondent that, as an order under the first clause of Section 32 cannot be challenged in a Civil Court, an order under Section 31 also must by implication be taken to fall within the scope of Section 149. There is obviously no foundation for this contention. On the other hand, the very circumstance that orders under Secs.11 and 32 are expressly excluded from the cognizance of the Civil Court, makes it fairly obvious that an order under - Section 32 of the description now before us was not intended to be excluded from challenge in a Civil Court. In our opinion the policy which underlies Section 149 is clearly against the contention of the respondent. The object obviously is to exclude the jurisdiction of the Civil Court in cases where the question relates to the division of the Government revenue or to the details of the partition. Where, however, the question raised goes to the very root of the matter and relates to the jurisdiction of the Collector to make a partition in spite of the provisions of Section 12 of the Act, it is impossible to hold that the Civil Court is not competent to decide the matter in controversy between the parties. The view taken by the Subordinate Judge that the suit is not maintainable, cannot, therefore, be supported.