HEM CHANDRA CHAKRAVARTI Vs. SARABALA DATTA

JUDGEMENT

(1.) This appeal arises out of a suit for a declaration that the order of the Collector of Backerganj, dated 1 November 1920, for refund of a certain amount of money deposited by the defendants as costs of the separation and partition of certain estates, is without jurisdiction, illegal and invalid and, therefore, liable to be set aside and also for the issue of a permanent injunction restraining the said defendants from withdrawing the money from the Backerganj Collectorate.

(2.) The allegations on which the plaintiffs brought the suit were briefly these : 5 estates, bearing touzi Nos. 1744, 1751, 3563, 5566, 6100 of the Backerganj Collectorate, originally belonged to two brothers, Radhakanta Sen and Krishnaram Sen. These estates have common lands. Radhakanta's share is known as Barha Hisya and it comprises estates Nos. 1751, 3566 and eight annas of 6100, while the share of Krishnaram comprises estates Nos. 1744, 3563 and the remaining half of the estate No. 6100. Defendants 1, 5 and the predecessor of defendants 2 to 4 purchased the estate No. 1744 at a revenue sale. The plaintiffs, who became the owners of the Barha Hisya of Radhakanta applied to the Collector on 22nd January 1915, for partition, after separation of the lands of estates Nos. 1751, 3566 and eight annas of 6100. To this the defendants filed an objection and in that objection they also prayed that the common land of the estate No. 1744 should be separated and a Record-of-Rights prepared. Thereupon, proceedings were drawn up on 24 July 1915, declaring the estates to be under separation and also under partition under Secs.5, 6 and 29, Estates Partition Act (Beng. 5 of 1897). An estimate of cost was prepared - cost of separation of the lands of the five estates and also cost of partition of Estates Nos. 1751, 3566 and 6100. A certain amount was realised from the defendants, who afterwards filed an application before the partition, the Deputy Collector denying their liability to pay. This objection was disallowed, but the Deputy Collector's order was, in appeal, set aside by the Collector of the District who ordered a refund of the money to the defendants. It was this order of the Collector, which the plaintiffs sought to set aside when they instituted the the suit that has given rise to the present appeal.

(3.) The Court of first instance decreed the plaintiffs suit and declared that the order of the Collector for the refund of the money was without jurisdiction, illegal and invalid and it granted a permanent injunction restraining the defendants from withdrawing the said money, On appeal, the learned District Judge reversed the decision of the Court of first instance and restored the order passed by the Collector. The plaintiffs have appealed to this Court.