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Muhammad Shadi Khan and ors. Vs. Muhammad Abdul Karim - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtAllahabad High Court
Decided On
Judge
Reported in(1887)ILR9All429
AppellantMuhammad Shadi Khan and ors.
RespondentMuhammad Abdul Karim
Excerpt:
.....raised after day specified by original applicant--question of title--distribution of land--jurisdiction--civil and revenue courts--act xix of 1873 (n.-w. p. land revenue act) sections 111, 112, 113, 131, 132, 241 (f)--civil procedure code, section 11. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal..........the point there was whether the allotment in partition was a reasonable distribution of the land partitioned, and did not involve a question of title. pandit nand lal, on behalf of the plaintiffs-respondents, contended, on the other hand, that section 241 did not apply, and that questions of title arising in partition could not be raised and determined by action in the civil courts unless they were disposed of by the collector in accordance with the provisions of section 113 of the act. in support of his contention he cited sundar v. khuman singh, i. l. e., 1 all., 613, which authority, we think, supports the contention.5. it appears to us that the objection raised by the plaintiffs to the partition in question was not one within the meaning of section 113. 'the objection'.....
Judgment:

John Edge, Kt., C.J. and Brodhurst, J.

1. This is an appeal by the defendants in the suit from a decree of the Judge of Meerut, dated the 17th December 1885, by which he decreed the appeal to him of the plaintiffs, and declared the plaintiff's proprietary right to the land in suit, and declared that the defendant should bear all costs in his Court and in that of the Munsif of Bulandshahr.

2. The present action arises out of certain partition proceedings in the Revenue Court. The plaintiffs, who where the proprietors of two out of three portions of a patti which had been previously partitioned, applied to have some common lands partitioned between their respective portions of their previously partitioned patti. The defendant was the owner of the remaining portion of the previously partitioned patti. The Assistant Collector of the District, on receiving the application, published the notifications, and caused to be served the notices, prescribed by Section 111 of the N.-W. P. Land Revenue Act, XIX of 1873. Then notice was served upon, amongst others, the defendant, who was a co-sharer in the mahal, who had not joined in the application. No objection within the meaning of Sections 112 and 113 of the Act was taken within the time specified by the notice. It appears that the Amin, in preparing the apportionment, allocated the land in suit, which was a portion of the common land to which the application for partition referred, to the defendant in respect of his portion of the previously partitioned patti. On this the plaintiffs raised an objection before the Assistant Collector on the ground that the common land in question had in the previous partition been allotted to their portions of the patti, and that the defendant had no title to any of the common land in question, or to have any of it allocated to his portion of the patti. The Assistant Collector declined to entertain the objection, on the ground that the plaintiffs had not made this objection within the time specified in the notices, and made the partition allocating the land in suit to the defendant.

3. Upon this, on the 6th May 1885, the plaintiff's brought the action in which this appeal has arisen for a declaration of title to the land so allocated to the defendant. On the 26th June 1885, and after the commencement of this action, the Collector of the District, under Section 131 of the Act, sanctioned and confirmed the partition so made by the Assistant Collector, and duly published a notification of the fact in accordance with the provisions of Section 131. No appeal against the decision of the Collector was brought. The Judge of Meerut in the appeal before him found that the plaintiffs had established their title to the land in suit, and the only question before us is whether or not this action is, under the circumstances, maintainable in the Civil Court.

4. Mr. Chaudhri on behalf of the defendant-appellant, contended that the remedy of the plaintiffs, was by an appeal from the decision of the Collector under Section 132 of the Act, and that the action related to the distribution of land of a mahal by partition within the meaning of Clause (f) of Section 241 of the Act, and was not maintainable in the Civil Court. In support of his contention he cited Habibullah v. Kunji Mal, I. L, R., 7 All., 447. This case does not appear to us to support Mr. Ghaudhri's contention. The point there was whether the allotment in partition was a reasonable distribution of the land partitioned, and did not involve a question of title. Pandit Nand Lal, on behalf of the plaintiffs-respondents, contended, on the other hand, that Section 241 did not apply, and that questions of title arising in partition could not be raised and determined by action in the Civil Courts unless they were disposed of by the Collector in accordance with the provisions of Section 113 of the Act. In support of his contention he cited Sundar v. Khuman Singh, I. L. E., 1 All., 613, which authority, we think, supports the contention.

5. It appears to us that the objection raised by the plaintiffs to the partition in question was not one within the meaning of Section 113. 'The objection' referred to in that section must be an objection made to the partition 'on or before the day specified' as provided by Section 112. In order to see what is the day referred to as the 'day specified' we must look at Section 111. We find that it is enacted by Section 111 that the Collector 'shall serve a notice on all such of the recorded co-sharers in the mahal as have not joined in the application, requiring any co-sharer in possession, who may object to the partition, to appear before him to state his objection, either in person, or by a duly authorised agent, on a day to be specified in the notice, not being less than thirty or more than sixty days from the date on which such notice was issued.' Reading Sections 111, 112 and 113 together, as we think they must be read, it is obvious that the objection contemplated in each of those sections is an objection to be made by the person upon whom the notice required by Section 111 is to be served, that is, a person who is a co-sharer in possession who had not joined in the application for the partition, and consequently not an applicant for the partition. Besides, the question of title in this case did not and could not have arisen 'on or before the day specified' in the notice served by the Collector, as it could not be intended that the Collector shall proceed to make the partition until after the expiration of the time specified in the notice for making objection to partition. If an Assistant Collector or Collector does not proceed to enquire into the merits of an objection as to title or proprietary right coming within Section 113, ho should decline to grant the application for partition 'until the questions in dispute has been determined by a competent Court.' The competent Court referred to must be a Civil Court having jurisdiction to adjudicate upon question of title. It is important to bear in mind that in those cases in which the Collector or Assistant Collector adjudicates upon questions of title or proprietary right under Section 113, a right of appeal is given, and that appeal is not from an Assistant Collector to a Collector or from a Collector to a Commissioner, but from an Assistant Collector or Collector as the case may be, to the Civil Court. The result, so far as Sections 111, 112, 113, 114 and 115 are concerned, is that a Civil Court is the Court which has jurisdiction to adjudicate upon questions of title or proprietary right either in an original action in cases in which the Assistant Collector or Collector does not proceed to enquire into the merits of such an objection under Section 113, or on appeal in those cases in which the Assistant Collector or Collector does decide upon questions of title or proprietary right raised by an objection made under Section 112. The remaining sections relating to partition do not appear to provide for or to bar the jurisdiction of the Civil Court to adjudicate upon questions of title which may arise in partition proceedings, or on the partition after the expiration of the time specified in the notice to be served by the Collector under Section 111, unless Section 132 is to be read as making the Commissioner the Court of appeal on questions of title, or unless Section 241 (f) is to be construed as barring the jurisdictions of the Civil Courts to deal with such objections. We can see no reason why it should be assumed that in the cases where questions of title arise subsequently to the 'day specified' in the notice, the Legislature intended by Section 132 that those questions should be for the final or other determination of the Commissioner of the District, whilst it is expressly provided by Section 113 that the Civil Court as to questions of title raised by an objection made at an earlier stage under Section 112, should have either original or appellate jurisdiction.

6. It appears to us that the appeal provided for by Section 132 is an appeal on any questions other than questions of title or proprietary right arising on or out of the partition made or sanctioned or confirmed by the Collector, and that the Commissioner would have no jurisdiction to adjudicate upon questions of title arising during the proceedings prior to the making of the partition, or out of or upon the partition when made. If this be the correct interpretation of Section 132, there would be no Court or officer with jurisdiction to adjudicate upon questions of title arising in or on the partition of a mahal subsequently to the 'day specified' in the Collector's notice under Section 111, if, as is contended by Mr. Chaudhri, Section 241 (f) bars the jurisdiction of the Civil Courts to entertain or adjudicate upon such questions. This would be a result which the Legislature could not have intended. It is true that in one sense the determination of title by a Civil Court may affect the distribution of land of a mahal by partition, but it would affect such distribution so far only as the distribution of the land depended on title, but it would not affect the distribution on all or any of the other various questions or considerations which the Assistant Collector or Collector would have to deal with in making the partition. In our opinion Section 241 of the Act does not bar the jurisdiction of the Civil Court to adjudicate upon questions of title or proprietary right in cases such as that under consideration.

7. Under these circumstances Section 11 of the Code of Civil Procedure applies. We are of opinion that this action is maintainable, and this being the only question which arose before us in appeal, we dismiss this appeal and confirm the decree of the Judge of Meerut with costs.


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