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Kanhai and anr. Vs. Ijrail - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtAllahabad High Court
Decided On
Judge
Reported in(1888)ILR10All5
AppellantKanhai and anr.
Respondentijrail
Excerpt:
jurisdiction - civil and revenue courts--suit for partition and possession of a share in a particular plot m a patti--act xix of 1873 (n.-w. p. land revenue act), sections. 135, 241 (f). - - in that litigation ijrail was unsuccessful, and the final decree of the 14th september 1882, declared that the plaintiffs-respondents now before me were entitled to a one-third share in the patti to which these lands appertain......out of many more plots included in the zamindari property. by section 241 of act xix of 1873 (the land revenue act), matters of this description have been excluded from the jurisdiction of the civil court, and the reason of the law seems to be that if isolated plots are to be brought into litigation for purposes of partition in thin manner, the broad partition which can be effected only by a revenue court, such as is contemplated by sections 107 to 139 of the revenue act. could not he properly worked. the only ruling upon which reliance is placed for the opposite view by mr. ratan chand on behalf of the respondents is the ruling to which i have already referred. and as the judgment in that case was delivered by myself, i think i need only say that the effect of that judgment is simply.....
Judgment:

Mahmood, J.

1. This was an action for the understanding of which the following few facts are necessary: The subject-matter of dispute between the parties is certain land constituting an area of 5 bighas 19 biswas of land, being the aggregate area of four plots, viz., Nos. 146, 337, 526, and 688 of pukhta or pucka measurement. These very plots were the subject-matter of litigation between the parties upon a former occasion, in which litigation the parties being co-sharers of the land, the dispute was whether it did or did not form the private sir land of the present defendant-appellant, Ijrail. In that litigation Ijrail was unsuccessful, and the final decree of the 14th September 1882, declared that the plaintiffs-respondents now before me were entitled to a one-third share in the patti to which these lands appertain. Having obtained that decree the plaintiffs instituted this suit with the object of having these four plots of land specifically partitioned, upon the allegation that these lands were the joint property of the parties, and that circumstances had arisen which would entitle the plaintiffs to claim a separation of the shares for which they pray. Both the Courts below, feeling themselves bound by the adjudieation of the 14th September 1882, held that the plaintiffs were entitled to the one-third share in these plots, and with reference to the ruling of this Court, to which I was a party in the case of Ram Dayal v. Megu Lal I. L. R., 6 All., 452, those Courts have held that such a suit was entertainable by the civil Court. The main defence urged by the defendant-appellant in the Court below was that such an action virtually amounted to claiming partition of a portion of the mahal, irrespective of the other plots constituting the mahal; and he contended that although the plaintiffs were entitled to the one-third land, yet the share could not be separated in this isolated manner irrespective of the revenue law. Upon these grounds it was further contended by him that the action was not maintainable by the civil Court. This contention having been disallow, ed by both the Courts below, the present second appeal repeats that contention, and I am of opinion that it has force. It is admitted on all hands that the parties are co-sharers of the patti in which these four plots are situate, also that these plots form part of numerous other plots of land situate in that same patti, also that all these plots are jointly owned by the parties along with other co-sharers of the patti, and this being so, the prayer contained in the plaint amounts simply to asking for a partition of four plots out of many more plots included in the zamindari property. By Section 241 of Act XIX of 1873 (the Land Revenue Act), matters of this description have been excluded from the jurisdiction of the civil Court, and the reason of the law seems to be that if isolated plots are to be brought into litigation for purposes of partition in thin manner, the broad partition which can be effected only by a Revenue Court, such as is contemplated by Sections 107 to 139 of the Revenue Act. could not he properly worked. The only ruling upon which reliance is placed for the opposite view by Mr. Ratan Chand on behalf of the respondents is the ruling to which I have already referred. And as the judgment in that case was delivered by myself, I think I need only say that the effect of that judgment is simply to hold that when a civil Court has passed a decree whereby certain trees wore to be uprooted, without specifying the exact area from where the trees wore to be uprooted, the Court executing that decree (behind which decree such Court could not go) could give effect to that decree without resorting to the provisions contained in Section 265 of the Code. I do not understand that ruling to mean that any co-sharer of a joint zamindari estate could, by suing for partition and division of isolated plots of land, bring about a state of things whereby it would (when the question arises before the Revenue Court) be extremely inconvenient, if not impossible, to duly effect a partition, such as the Revenue Act in Section 135 and in other sections contemplates. I hold there-lore, that the nature of the claim set forth in the plaint in this suit, and the defence set up thereto, gave rise to a dispute of such a character as could not be entertained by a civil Court, and should have been dismissed upon this ground in limine. For these reasons I decree this appeal, setting aside the decrees of both the lower Courts. The plaintiffs-respondents' suit will stand dimissed with costs in all the Courts.


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