BALBHADDAR SINGH Vs. RAGHUBIR SINGH

JUDGEMENT

(1.) This is a second appeal by defendants first party against a decree of the lower Appellate Court in favour of the plaintiffs. The circumstances are that there was a partition suit before the Revenue Court on the application of the defendants first party and an objection was raised by the plaintiffs and the defendants second party who formed a joint Hindu family and who comprised five persons. This objection was filed by Banwari Singh on behalf of himself and these other four persons. The objection was to the effect that the proprietary right of these five persons was not subject to any mortgage charge and there, fore that certain specific plots of which the proprietary right had been mortgaged by Prag and Thakuri, predecessors of other co-sharers, in favour of Anmol Singh and others in khata khewat No. 1 should not be assigned to the patti prepared for the objectors in the partition. The Revenue Court made an order of reference to the Civil Court in the following terms: Objection 3. - The objector is directed to get it decided in Civil Court by instituting a suit within, three months in that Court. Assistant Collector, first class, 15 July 1933.

(2.) The trial Court dismissed the suit and the lower Appellate Court has decreed it. One of the questions argued in appeal is ground No. 3 that no permission was given to Banwari Singh as the representative of the family. Now the lower Appellate Court has found that these five persons formed a joint Hindu family and that the application was made by Banwari Singh for himself and on behalf of the other four persons. The actual suit has been brought by two of these persons as plaintiffs, Raghubir Singh and Raja Ram Singh, and Banwari Singh Subedar Singh and Ram Nath Singh are defendants second party. We see no reason to consider that the reference is in any way improper or that it was not open to the Civil Court to entertain this suit on behalf of the two plaintiffs who joined the other three persons as defendants to whom direction had been given to sue.

(3.) The main ground which learned Counsel for the appellants has argued is not really contained definitely in his grounds of appeal at all. What he has argued is based on certain rulings and is to the effect that the question referred cannot be referred by a Revenue Court under Section 111, Land Revenue Act, and that a Civil Court has no jurisdiction to entertain such a question on such a reference. The rulings on which learned Counsel relies are as follows : In Jagdish Prasad v. Chimman Lal (1910) 5 I.C. 107 a Bench of this Court had before it a case where an Assistant Collector had passed a decree under Section 111, Land Revenue Act. The question which arose before the High Court was whether the decree of the Assistant Collector was appealable under Section 112 to the District Judge and the Court held that it was not. It was further held that a finding, by an Assistant Collector that a person claiming to be a usufructuary mortgagee of a particular share was or was not in possession of the share was not a finding determining a question of proprietary title within the meaning of Section 111. In the discussion of these points on p. 110 of the ruling there is one solitary sentence as follows: It seems clear to us that the question of the existence or otherwise of a mortgage charge upon particular property is not one which Legislature intended to be determined in the course of partition proceedings. The question whether a person claiming to be a usufructuary mortgagee is or is not actually in possession, is one which an Assistant Collector conducting a partition may have to determine.