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Madho Dube and ors. Vs. Bahadur Khan and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1946All514
AppellantMadho Dube and ors.
RespondentBahadur Khan and anr.
Excerpt:
.....employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - it may be observed that it was clear from the facts of the case that the success in the suit could not involve any disturbance in the distribution of property made at the partition, section 233(k), land revenue act, and the principle of res judicata were pleaded in defence. vii, land revenue act and also examined the various authorities of this court as well as of the oudh chief court. 258. 14. only such expressions of opinion made by the learned judges of this court on the question of the applicability of the principle of res judicata or the scope of the word 'partition' as are contrary to the view..........letters patent appeal is whether the suit giving rise to this appeal is barred by section 283(k), land revenue act, [iii (3) of 1901]. we need give an outline of only such facts as may place the point at issue in its setting. on 15-7-1876, jhagru rai, the predecessor-in-title of the plaintiff-respondent, executed a mortgage with possession in favour of nand gopal dube, the predecessor-in-title of the defendants-appellants, by which a certain share in village sikanderpur was mortgaged for a term of 11 years. sometime prior to 1908, the mortgage entry disappeared from the revenue papers and the mortgaged property was treated as property held in full proprietary interest. partition proceedings were held in the revenue court between 1903 and 1908 as a result of which the mortgaged property.....
Judgment:

Pathak, J.

1. The sole point raised by this Letters Patent Appeal is whether the suit giving rise to this appeal is barred by Section 283(k), Land Revenue Act, [III (3) of 1901]. We need give an outline of only such facts as may place the point at issue in its setting. On 15-7-1876, Jhagru Rai, the predecessor-in-title of the plaintiff-respondent, executed a mortgage with possession in favour of Nand Gopal Dube, the predecessor-in-title of the defendants-appellants, by which a certain share in village Sikanderpur was mortgaged for a term of 11 years. Sometime prior to 1908, the mortgage entry disappeared from the revenue papers and the mortgaged property was treated as property held in full proprietary interest. Partition proceedings were held in the revenue Court between 1903 and 1908 as a result of which the mortgaged property was assigned to the lot of the mortgagee and was described as property held in full proprietary interest. In 1932, the present suit was brought by the plaintiff for redemption of the mortgage against defendants 1 to 7, who were the legal representatives of Nand Gopal Dube, the mortgagee, and against defendant 8 the plaintiff's vendor who was one of the heirs of Jhagra Rai, the mortgagor.

2. In defence, two pleas were taken by the defendants : (1) that by reason of certain events which took place after the execution of the mortgage, the mortgage was extinguished and did not subsist on the date of the suit and (2) that the claim was barred by Section 283(k), Land Revenue Act. The first plea may be dismissed with the observation that the facts set up by the defendants were not established and the mortgage was held to be subsisting on the date of the suit. With regard to the second point the learned single Judge of this Court has held that Section 233(k), Land Revenue Act, did not bar the suit. In the result, the learned single Judge affirmed the decrees passed by the lower Courts granting the claim for redemption in favour of the plaintiff. Against the judgment of the learned single Judge, this appeal has been brought under Section 10, Letters Patent. In order to appreciate the controversy between the parties, it is necessary to examine the language of Section 288(k), Land Revenue Act. That section, so far as it is material, runs as follows:

No person shall institute any suit or other proceeding in the civil Court with respect to...

(k) partition or union of mahals except as provided in Sections 111 and 112.

3. It is manifest that this section bars the institution of the suit or other proceeding in the Civil Court, if the suit or the proceeding in question is of the nature described in the section. The controversy, therefore, resolves itself into the question also whether the suit or proceeding is...'with respect to partition of mahals'. The word 'mahal' has been defined in Section 4(4) as 'any local area held under a separate engagement for the payment of the land revenue'. Section 106, Land Revenue Act defines 'partition' to mean 'the division of a mahal or of a part of a mahal into two or more portions each consisting of one or more shares'. In order to judge what are the necessary steps in partition proceedings, and what questions can be raised in those proceedings, it is necessary to examine the scheme of Chap. VII, which deals with partition and union of mahals.

4. The proceedings are initiated by an application for partition accompanied by a certified copy of the annual register of proprietors prescribed by Section 33, and this application has to be presented by one or more of the recorded cosharers of a mahal (Section 107). On the receipt of the application, the Collector has to issue a proclamation cal-ling on such of the recorded cosharers in the mahal as have not joined in the application to state their objections, if any, to the par. tition and the right is given to every record-ed cosharer not joining in the original application to apply for partition of his share (Section 110). Section 111 prescribes the procedure for a case where a recorded cosharer raises an objection involving a question of proprietary title. If such a question has not already been determined by a Court of competent jurisdiction three courses are open to the Collector namely : (1) he may decline to grant the application until the question in dispute has been determined by a competent Court, (2) he may require any party to the case to institute within three months a suit in the Civil Court for the determination of such question, or (3) he may proceed to enquire into the merits of the objection.

5. In case the Collector does not choose to proceed to enquire into the merits of the objection himself, be is governed by the decision of the Civil Court and, in the event of his deciding the objection himself, the order passed by him shall have the effect of a decree of a competent Court of Civil Judicature. Thereupon partition proceedings have got to be drawn up by the Collector in accordance with Section 114. In these proceedings, the Collector has to declare the nature and the extent of the interests of the persons applying for partition and of any other persons who may be affected thereby and he has also to give directions for the carrying out of the partition. Sections 117, 118, 119 and 120 lay down how the lands held in severalty or in common and buildings, gardens and wells etc. have to be partitioned. After the partition is carried oat in accordance with the partition proceedings laid down by the Collector under Section 114, the Collector has to pass an order confirming the partition in accordance with Section 131. This resume of the provisions of the Land Revenue Act relating to partition will make it clear that the questions of proprietary title which can be raised in the course of the partition proceedings must be such as affect the partition and the Collector, in drawing up the partition proceedings, has got to make a declaration with regard to fee nature and extent only of those interests which affect the partition to be carried out by him.

6. In order to judge whether the suit is 'with respect to partition of mahals', it is necessary to examine the plaint, as it is from the plaint that the nature of the suit will be determined. It is noteworthy that it is the institution of the suit which is barred by Section 233(k). In other words, if the suit is of the nature and description specified in that section, no civil Court can take cognisance of it and the plaint will be liable to be rejected in limine. In the pre-sent case, it is not the contention of the defendants that the plaint has been dressed up in order to conceal its real nature. We are, therfore, concerned with the plaint as it appears on the face of it. Its perusal will show that the suit is an ordinary one for redemption in which the plaintiff seeks to obtain, on payment of mortgage money, a retransfer of the property which he had transferred by way of mortgage. The question, therefore, is whether such a suit would affect the 'partition of mahals.

7. It must be borne in mind that what is prohibited by the section is not the cognisance of a suit which may affect the property which has been partitioned or which, as a result of partition of mahals, has been allotted to any particular party, but the cognisance of a suit which affects the 'partition of mahals, that is to say, which affects the distribution and arrangement of the properties allotted as a result of partition and disturbs such titles as affect the partition. In a suit for redemption, the mortgagor does not claim, adversely to the mortgagee but claims, as it were under the mortgage, in the sense that he founds the claim upon the existence of the mortgage, In other words, his claim, is not opposed to the existence of the mortgage but is consistent therewith. A redemption suit, if successful, does not alter the arrangement of the properties made as a result of the partition. Indeed, if redemption is allowed then in place of the name of the mortgagee, the name of the mortgagor is substituted and the partition is left intact. That is necessarily, so, because in a suit for redemption filed after a revenue Court partition, the plaintiff accepts the partition as a settled fact. The question whether a certain property assigned to any particular mahal or patti is the subject of a usufructuary mortgage is irrelevant to the partition proceedings and any claim of a cosharer based upon the ground that a certain property is the subject of a mortgage cannot be said to be adverse to the other cosharers for the purposes of partition. The mortgagor merely seeks to step into the shoes of the mortgagee without affecting the partition. Applying, therefore, to the plaint, the language of Section 233(k), we are unable to see how this section can be held as a bar to the redemption suit.

8. Mr. Pandey, counsel for the appellants, who had addressed us at some length concedes that his contention does not find support from any of the decided cases of this Court but, according to him, the decision of their Lordships of the Privy Council in Bajrang Bahadur Singh v. Beni Madho Baksh Singh upsets the view taken by this Court and supports his contention. For a proper appreciation of this decision of their Lordships of the Privy Council, Mr. Pandey has placed before us important cases decided by this Court in their chronological order. The first case to which he has referred is the Pull Bench decision Muhammad Sadiq v. Laute Ram ('10) 23 All. 291 (F.B.). In that case, the plaintiff claimed a declaration of his right to certain trees and, in defence, Section 241(f) of the Act 19 (XIX) of 1873, which corresponded to Section 233(k) Land Revenue Act, 1901, was set up as a bar to the suit. This plea was based upon the ground that there was a partition in the village to which the plaintiff's predecessor-in-title and the defendants were parties as cosharers and the trees were allotted to the defendants along with the lands on which they were situate. The Full Bench reached the conclusion that the question of title to the trees was one affecting the partition and, therefore, it should have been raised in the partition proceedings and that question not having been so raised, the cognisance of the civil Court was barred by Section 241(f) of Act 19 (XIX) of 1873. Sir Pramoda Obaran Banerjee, who was a member of the Full Bench expressed himself thus:

It seems to me that what the Legislature declares is that after a partition has been made in accordance with the provisions of the Land Revenue Act, and has been confirmed, it is not open to the parties to the partition proceedings to reopen the partition by a suit in the civil Court, If a party wishes to raise a question of title, he may do so under Section 112, and have it determined in the manner provided for in Section 113. Whether, before the completion of partition, he can have it determined by the institution of a suit in the civil Court, is a question which it is not necessary to decide in this case. But it is clear that the proper time for raising a question of title is before the completion of the partition proceedings. If a party does not avail himself of the opportunity which he has before the completion of partition to have his title determined, it seems that the Legislature by enacting Section 241(f) intended that he should be debarred from raising afterwards any question which would have the effect of disturbing the partition to which he was a party.

9. It should be borne in mind that the question of title relating to the trees was one which affected the partition itself and the determination of which was necessary for the purpose of carrying out the partition. The next case to which our attention has been invited by Mr. Pandey is another Pull Bench decision viz. Kalka Prasad v. Manmohan Lal ('16) 3 A.I.R. 1916 All. 83. In that case the plaintiff sued to recover possession of a certain property which had been formed into a separate mahal as the result of a re-venue court partition. With respect to this property, the defendant had been recorded as a cosharer and it was allotted to him in the course of the partition proceedings. It may be observed that it was clear from the facts of the case that the success in the suit could not involve any disturbance in the distribution of property made at the partition, Section 233(k), Land Revenue Act, and the principle of res judicata were pleaded in defence. The Full Bench overruled both the pleas and decreed the suit. With regard to the plea of res judicata, Richards, C.J., observed that it was only when an objection was made by a recorded cosharer involving a question of proprietary title which the Collector determined to decide himself that the decision of the revenue Court could be held to operate as res judicata and, according to his view, where no objection had been raised in the course of the partition proceedings so as to attract; the application of Sections 111 and 112, Land Revenue Act, the principle of res judicata did not apply. This case is an authority foe the proposition that where the claim put forward in a suit does not disturb the partition such a suit is not barred either by Section 233(k), Land Revenue Act, or by the rule of res judicata.

10. The full Bench case in Muhammad Sadiq v. Laute Ram ('10) 23 All. 291 (F.B.) referred to above was followed in another Full Bench case Bijai Misir v. Kali Prasad ('17) 4 A.I.R. 1917 All. 258. That was a suit for possession of a certain zamindari share and Section 233(k), Land Revenue Act, was pleaded in defence as a bar to the suit. It was held by the majority of the Court that the suit was not cognisable by the civil Court. With regard to the question of ret judicata, the view taken by the Full Bench was that inasmuch as the question had not been decided by the revenue Court, the principle of res judicata had no application, but, according to the Full Bench, the facts of the case attracted the application of Section 283(k), inasmuch as the result of the suit, if decreed, would disturb the partition. The next case which should be noticed is that in Ram Rekha v. Lallu Misr : AIR1931All462 decided by Mukerji and Bennett JJ. In that case, the principle of constructive res judicata was applied by the learned Judges. They observed:

That section (viz. Section 233(k)) may be interpreted, first, on the narrow view that it only bars suits which ask for alteration of the total amount of shares in a mahal or in a sub-division of a mahal, or suits which ask for Khasra numbers or holdings to be changed from one mahal or sub-division of a mahal to another...There is a wider view of Section 233(k) in which it may be held to bar any question being raised in the civil Court which could have been raised in objection under Section 111, Land Revenue Act.

11. It was then laid down that out of the two interpretations which could be put on Section 233(k), the narrower one was the right interpretation as otherwise the wider interpretation would make Section 233(k) co-extensive with, and merely a paraphrase, of the rule of res judicata. We now turn to the decision of their Lordships of the Privy Council in Bajrang Bahadur Singh v. Beni Madho Baksh Singh referred to above. In that case, a suit was brought for a declaration that the plaintiffs were superior proprietors as distinct from under, proprietors of certain plots. Prior to the suit the village in which the plots were situate had been the subject of partition proceedings in the revenue Courts and the plots in dispute were allotted in those proceedings to the defendants, who were described as superior proprietors, while the plaintiffs were recorded as having only under-proprietary rights in those plots. It would be at once apparent from the nature of the suit that it was aimed at the correction of what had been done in the partition proceedings. Their Lordships upheld the decision of the Lucknow Chief Court that Section 233(k) barred the suit. In the course of their judgment, their Lordships examined the nature and effect of partition proceedings taken under chap. VII, Land Revenue Act and also examined the various authorities of this Court as well as of the Oudh Chief Court. The conclusions arrived at by their Lordships may be summarised as follows:

(a) If a question of title affecting the partition which might have been raised in the partition proceedings is not so raised and the partition is completed, Section 233(k) debars patties to the partition from raising the question subsequently in a Civil Court.

(b) The word 'partition' in Section 233(k) is not used in the narrow sense of mere arrangement into units of area, and the section prohibits the Civil Courts from taking cognisance of not only those suits which may have the result of disturbing the systematic arrangement of the land into units of area but al30 those suits in which questions of proprietary title affecting the partition are raised.

(c) Where no objection is made under Section 111 with the result that Sections 111 and 112 do not come into operation, the principle of res judicata has no application.

12. The test for determination whether Section 233(k) applies to a particular set of facts will appear from the following observations of their Lordships:

The fact of the present case raise no question as to the rights of any one to bring a civil suit pending the partition proceedings, or as to the rights of a person who is not a recorded cosharer or was not a party to the proceedings, or as to any case between persons whose interests were not opposed for the purpose of the partition.

13. The crux of the question, therefore, in such cases is whether the question sought to be raised in the suit is one between persons whose interests are in conflict for the purpose of the partition. If the answer is in the affirmative, such a suit will be barred by Section 233(k). If the answer is in the negative, Section 233(k) will have no application. We have very closely examined the judgment of their Lordships of the Privy Council, but we do not find ourselves able to agree with the contention of Mr. Pandey that this decision has upset the current of decisions of this Court. Indeed, their Lordships marked their approval of the Full Bench cases of this Court in Muhammad Sadiq v. Laute Ram ('10) 23 All. 291 (F.B.) and Bijai Misir v. Kali Prasad ('17) 4 A.I.R. 1917 All. 258 as would appear from the following sentence in their judgment:

Upon an independent examination of the provisions of the Act of 1901 their Lordships have arrived at the same construction as was put upon the previous Act IXIX (19) of 1873) by the Full Bench of the High Court at Allahabad in Muhammad Sadiq v. Laute Ram ('10) 23 All. 291 (F.B.) and upon the present Act by Banerji and Tudball, JJ. in Bijai Misir v. Kali Prasad ('17) 4 A.I.R. 1917 All. 258.

14. Only such expressions of opinion made by the learned Judges of this Court on the question of the applicability of the principle of res judicata or the scope of the word 'partition' as are contrary to the view expressed by their Lordships of the Privy Council would not be good law. But the main principle governing the applicability of Section 233(k), as laid down by this Court and as discussed above, has been, in our judgment, approved by their Lordships of the Privy Council. We are glad to find that the view taken by us independently finds support from two decisions of this Court. The first is the case in Balbhadar Rai v. Brij Raj ('11) 10 I.C. 630 (All.) in which Richards, C.J., and Banerji, said, in relation to a suit for redemption, that:

when the mortgagors redeemed the mortgage they would step into the shoes of the mortgagees in respect of the mortgaged share of each of the mortgagees and thus become co-sharers in the separate mahals formed under partition, and the partition would not be interfered with.

15. The other decision is the more recent case in Ram Nath v. Sheo Nath : AIR1944All249 in which a Bench consisting of Hamilton and Mathur JJ. ruled that Section 233(k) did not apply to suits for redemption. In conclusion, we are of opinion that the decision of the learned single Judge is correct and we, therefore, dismiss this appeal with costs.


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