Banerji and Aikman, JJ.
1. This appeal arises out of an application for partition made under Act No. XIX of 1873. Some objections having been raised, the Court of Revenue tried those questions under Section 113 of the Act. In doing so the Assistant Collector determined the extent of the shares of the different owners of the mahal in respect of certain buildings, and ordered that the Amin should make a partition of the buildings, including rafters, bricks, stones and other materials of each building. We are surprised that such an order of the Assistant Collector, which was manifestly ultra vires, has bean sustained by the learned District Judge. It is beyond question that in partition proceedings under the North-Western Provinces Land Revenue Act neither buildings nor the materials thereof can be partitioned. What is partitioned is the land of the mahal: where such land is covered by buildings the Court making the partition has to follow the provisions of Section 124 of the Act, but it can decide no question of right to the buildings, nor can it partition them. We allow the appeal and set aside so much of the order of the Courts below as directs the partition of the buildings in question. The parties will pay their own costs in all Courts.
[This ruling was followed by Banerji, J., in Second Appeal No. 13 of 1900 decided on the 9th June 1900, the judgment in which is printed below.* See also the case of Abdul Rahman v. Mashina Bibi Weekly Notes 1899 p. 49,--Ed.]
* Banerji, J.
I think that the decree of the Court below is right and this appeal must be dismissed. The suit relates to a one-fourth share of the walls of an enclosure, and to gates, and turrets appertaining to a garhi in the village Talra. The plaintiff claims a moiety of the said share. He is one of the three sons of one Jawahir Singh. The defendants are his nephews, being the sons of the plaintiff's brother Fatah Singh. The third brother, Anup Singh, is dead and loft no issue. The plaintiff's case is that the three brothers were joint, that the property in question was acquired with joint funds, and that consequently he is entitled to a half share of the said property. It appears that a partition of the village has been effected and the shares owned by the parties have been divided by the Revenue Authorities. The walls, gates, and turrets in suit are said to have been allotted by the Revenue Authorities to the defendants as appertaining to their share. It is in consequence of this order of the Revenue Authorities that one plaintiff has brought the present suit. The Lower Appellate Court has found as a fact that the property was acquired by Anup Singh when the family was joint, that the plaintiff and the defendant's father Fateh Singh lived jointly with Anup Singh, and that upon Anup Singh's death both of them became owners in equal moieties of the property in question. It has also been found that the defendants had failed to prove that the property had been acquired separately by Fateh Singh. That Court has decreed the plaintiff's claim with the exception of a small portion of it with which we are not concerned in this appeal. The first two pleas taken in the memorandum of appeal are to the effect that the decision by the Revenue Authorities precludes the plaintiff from maintaining the present suit. This objection is, in my opinion, utterly untenable. It was not within the competency of the Revenue Authorities to partition a building. It is only the land of a mahal which the Revenue Authorities are empowered to partition by Act No. XIX of 1873. If those authorities took upon themselves to partition the buildings, that is, the walls, the gales, and the turrets in suit, they acted ultra vires. This was held in second appeal No. 829 of 1897, decided on the 28th of April 1900. Further, I notice that in this case the District Judge held in the appeal preferred to him from the order passed in the partition proceedings that the parties should have their rights to the buildings determined by a civil suit. It is clear, therefore, that the plaintiff is not precluded from maintaining the present suit in the Civil Court as held by the Courts below. The other grounds of appeal must, having regard to the findings of the Lower Appellate Court, fail. As I have said above, that Court has found, and I think upon cogent grounds, that the property was joint. Therefore the plaintiff was entitled to the decree which has been granted to him. I dismiss the appeal with costs.