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Bhup NaraIn and anr. Vs. NaraIn Dass - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in(1909)ILR31All330
AppellantBhup NaraIn and anr.
RespondentNaraIn Dass
Excerpt:
act (local) no. iii of 1901 (land revenue act), section 233(k) - suit for partition of dera and site--civil and revenue courts--jurisdiction. - 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 constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in..........holding that the claim was virtually one for partition and separate possession of the site of the dera in suit and that it was unmaintainable, dismissed the suit. the lower appellate court found that as the plaintiffs were owners of a portion of the house in dispute they were entitled to separate possession of their share of the house by partition and the mere fact that the defendant was owner of the site of the house cannot defeat the plaintiffs' rights to claim partition of the building itself. the defendant appeals from this order and his plea is that the plaintiffs are not owners of the site of the house which is situate in a mahal exclusively owned by him and the plaintiffs are not entitled to claim partition of the house in dispute. on behalf of the respondents our attention was.....
Judgment:

George Knox and Griffin, JJ.

1. The order under appeal is an order passed by the Subordinate Judge of Bareilly whereby reversing the decree of the lower court he remanded the case to that court to be replaced on its original number on the file of that court and to be disposed of according to law. The order continues. 'The lower court will pass a final decree in the plaintiff's favour for separate possession by partition.' The plaintiff's claim a five-ninth share in the property in dispute which is called a dera situate man agricultural village. They admit that the site upon which the dera stands is situate in a mahal of the village called mahal Multani in which they have no share. They themselves are owners of property in a mahal of the village known as mahal Surkh. When the Revenue Courts partitioned the village in 1867, the site on which the dera stands was allotted in its entirety to mahal Multani. The title of the plaintiff, rests partly upon inheritance from certain persons who were proprietors in possession of the dera, partly upon purchase. They say that they have repeatedly asked the defendant to partition the dera and to give them possession over their share. As the defendant refuses to accede to this request they have brought the present suit for partition of their share in the dera and for exclusive possession over it. The defence, amongst other grounds, with which we are not concerned, raises the question that plaintiffs cannot ask for partition of the dera, but might ask for the rent of that portion of it which is occupied by the defendant. The court of first instance, holding that the claim was virtually one for partition and separate possession of the site of the dera in suit and that it was unmaintainable, dismissed the suit. The lower appellate court found that as the plaintiffs were Owners of a portion of the house in dispute they were entitled to separate possession of their share of the house by partition and the mere fact that the defendant was owner of the site of the house cannot defeat the plaintiffs' rights to claim partition of the building itself. The defendant appeals from this order and his plea is that the plaintiffs are not owners of the site of the house which is situate in a mahal exclusively owned by him and the plaintiffs are not entitled to claim partition of the house in dispute. On behalf of the respondents our attention was called to the oases of Abdul Rahman v. Mashina Bibi Weekly Notes 1899 p. 49, and Iswar Parshad v. Jagarnath Singh and Ors. Weekly Notes 1906 p. 194. In the first of these two cases it was held that it was not within the jurisdiction of a Court of Revenue to partition a 'chhauni' or collection house. The second case was a case in which the parties were co-sharers in the village and while the village remained undivided the defendants had erected a building. On partition the revenue authorities allotted the plot on which the building stood to the share of the second party the plaintiffs. The plaintiffs sued for demolition of the building and for recovery of possession of what they deemed to be their share of the land covered by the defendants' building. It was held that the suit for demolition was bad, but that it was still open to the plaintiffs to ask the Revenue authorities to assess ground rent on the premises occupied by the defendants. Neither of these two cases is on all fours with the present case. The suit as it stands, though in name a suit for partition of the building, is in reality a suit also for partition of the land on which that building stands. It is a matter which arises on partition and which should be dealt with by the Revenue Courts. In our opinion Section 233, Clause (k), forbids the Civil Court exercising jurisdiction over a suit of the form in which this one has been brought. We decree the appeal, set aside the decree of the court below, and restore that of the court of first instance with costs.


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