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Tirbeni Sahai and ors. Vs. Gokal Prosad and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in9Ind.Cas.475
AppellantTirbeni Sahai and ors.
RespondentGokal Prosad and anr.
Excerpt:
partition - mistake by amin in preparing map--suit to rectify mistake--jurisdiction of civil or revenue court--united provinces land revenue act (iii of 1901), section 233(k). - - we think that this contention is well-founded. this is a matter which is entirely within the jurisdiction of the revenue court and by section 233(k) of local act iii of 1901 no suit or other proceedings can be instituted in the civil court with respect to it the case which has been relied upon by the lower appellate court is clearly distinguishable......lower appellate court, the plaintiffs contended [that the partition proceedings could not bar the civil suit. that court recorded the following finding: the record of the partition proceeding which was sent for by this court shows that the appellants' patti was not the subject of partition and, therefore, with reference to the ruling in kishan prasad v. kadar mal a.w.n. (1900) 11 i find that the suit is cognizable by the civil court.'3. in appeal before us the contention is again raised that the suit is not cognizable by the civil court. we think that this contention is well-founded. it is admitted that at the time when the partition was completed and was finally confirmed the whole mahal was divided into separate pattis and the plots in suit were taken out of plaintiff's patti, and one.....
Judgment:

1. This appeal arises out of a suit brought by Gokul Prasad and Musammat Gangoli plaintiffs-respondents in this Court. They began by stating that in the mahal there was a separate patti of theirs, which had been in their proprietary possession, and that it had all along been included in a separate lot and had no connection with other pattis. In 1905 certain of the appellants who were owners of some pattis in the same mahal applied to the Revenue Court to have their pattis formed by partition into a single patti. The other pattidars made similar applications. The plaintiffs, however, abstained from the proceedings, as they were not interested in them and took no part in them from beginning to end. Before the partition had been confirmed and when the lots were prepared, they found that a certain plot bearing No. 43/1 which was actually in the defendants' proprietary possession had been included in the lot of the defendants, and plots Nos. 4.1/3 and 43/4 had remained in the plaintiffs' lot as before. After that, the Court Amin made a mistake in the preparation of the map. He coloured plot No. 42/1 with the colour of the plaintiffs' lot and plot Nos. 43/3 and 43/4 with the colour of the defendants' lot. In October 1908, as the various lots were pointed out on the spot, the plaintiffs became aware of this mistake. They then applied to the Revenue Court to have this mistake corrected, but their petition was struck off by the Collector on the 7th of June 1909 with the remark that such mistake could be rectified by a Civil Court. Hence the present suit for a declaration that the plaintiffs are in possession as proprietors and lambardars of plots Nos. 43/3 and 43/4 and that they are comprised in their lot and patti, and that the defendants have no concern with these plots. They had also an alternative prayer for recovery of possession.

2. In the written statements, among other pleas, a plea was taken that the suit as brought could not be entertained by a Civil Court. The Court of first instance accepted this plea and dismissed the suit, holding that Section 233(k) of the Revenue Act was a clear bar. Before the lower Appellate Court, the plaintiffs contended [that the partition proceedings could not bar the Civil suit. That Court recorded the following finding: The record of the partition proceeding which was sent for by this Court shows that the appellants' patti was not the subject of partition and, therefore, with reference to the ruling in Kishan Prasad v. Kadar Mal A.W.N. (1900) 11 I find that the suit is cognizable by the Civil Court.'

3. In appeal before us the contention is again raised that the suit is not cognizable by the Civil Court. We think that this contention is well-founded. It is admitted that at the time when the partition was completed and was finally confirmed the whole mahal was divided into separate pattis and the plots in suit were taken out of plaintiff's patti, and one of them allotted to the defendants and the second to the patti of Jagan Nath. In place of these plots plot No. 43/1 was allotted to the plaintiffs' patti. This is a matter which is entirely within the jurisdiction of the Revenue Court and by Section 233(k) of Local Act III of 1901 no suit or other proceedings can be instituted in the Civil Court with respect to it The case which has been relied upon by the lower Appellate Court is clearly distinguishable. In that case land belonging to a different mahal had been taken from the mahal and added to the mahal under partition. The case differs toto coclo. We decree the appeal, set aside the order of the Court below, and restore the decree of the Court of first instance with costs in all Courts.


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