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Habibullah Vs. Kunji Mal - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Judge
Reported in(1885)ILR7All447
AppellantHabibullah
RespondentKunji Mal
Excerpt:
partition of mahal - jurisdiction--civil courts--act xix of 1873 (n.w.p. land revenue act), section 241(f). - - but, as the learned pandit who appeared for the respondent has very properly remarked, the areas which are recorded at the settlement as pertaining to a particular fractional share are more or less approximate, and it is only when a partition is being carried out that the proportion of area to fractional shares can be ascertained with anything like accuracy. in the present case, it may well have been that 476 bighas 5 biswas fairly represented the proportion of area to which the 8 biswas 6 biswansis and 131/2 kachwansis share was entitled out of the whole area......share from one gulab singh in patti guman singh, the area of which share was recorded as 61 bighas 4 biswas 8 biswansis. so that in 1876, when the plaintiff purchased the rights and interests of mrs. berkeley, he would appear to have been prime facie entitled to 476 bighas 5 biswas, plus 61 bighas 4 biswas, 8 biswansis. at the partition in 1877 the share of the plaintiff was recorded as 8 biswas 6 biswansis and 131/2 kachwansis, and the area appertaining to this share was still recorded as 476 bighas 5 biswas. from this it would appear that, on the face of it, there was a deficiency of 60 and odd bighas in the plaintiff's share; but, as the learned pandit who appeared for the respondent has very properly remarked, the areas which are recorded at the settlement as pertaining to a.....
Judgment:

Straight, J.

1. In saying what I am about to say about this appeal, I think it right to remark that my brother Brodhurst, at the hearing of the original appeal that came up before us as an appeal from an order of remand, was inclined to take a view contrary to that which was ultimately expressed in our former order. He was indisposed, after consideration, on the materials then before us, to record a formal difference of opinion, and preferred to join with me in ruling that the suit did lie in the Civil Court. The effect of our order, as then made, was to remand the ease, but it must be taken to have been passed solely in advertence to the materials then before us. The result of this remand is, that we have now a quantity of matter and information that was not available on the former occasion for consideration. It appears that in 1872 Mrs. Berkeley's name was recorded in respect of a 7 biswas 10 biswansis share, the area of which, as shown in the revenue papers, was 476 bighas, 5 biswas. She subsequently purchased a 16 biswansis 131/2 kachwansis share from one Gulab Singh in patti Guman Singh, the area of which share was recorded as 61 bighas 4 biswas 8 biswansis. So that in 1876, when the plaintiff purchased the rights and interests of Mrs. Berkeley, he would appear to have been prime facie entitled to 476 bighas 5 biswas, plus 61 bighas 4 biswas, 8 biswansis. At the partition in 1877 the share of the plaintiff was recorded as 8 biswas 6 biswansis and 131/2 kachwansis, and the area appertaining to this share was still recorded as 476 bighas 5 biswas. From this it would appear that, on the face of it, there was a deficiency of 60 and odd bighas in the plaintiff's share; but, as the learned Pandit who appeared for the respondent has very properly remarked, the areas which are recorded at the settlement as pertaining to a particular fractional share are more or less approximate, and it is only when a partition is being carried out that the proportion of area to fractional shares can be ascertained with anything like accuracy. In the present case, it may well have been that 476 bighas 5 biswas fairly represented the proportion of area to which the 8 biswas 6 biswansis and 131/2 kachwansis share was entitled out of the whole area.

2. The question then substantially raised by the suit is, was the area allotted to plaintiff at the partition in respect of his 8 biswas 6 biswansis and 131/2 kachwansis share a reasonable distribution

3. Now under Section 241 of Act XIX of 1873, Clause (f), the distribution of the land or allotment of the revenue of a mahal by partition are matters over which the Civil Courts are forbidden to exercise any jurisdiction, and this is virtually what this suit invites us to do. Upon the fuller materials now before us, I feel myself constrained to hold that the suit does not lie in the Civil Court, being barred by the provisions of Section 241 of the Revenue Act, and I would dismiss the appeal with costs.

Brodhurst, J.

4. Concurred.


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