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Tej Singh and ors. Vs. Mitter Sen - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1925All784; 87Ind.Cas.719
AppellantTej Singh and ors.
RespondentMitter Sen
Excerpt:
- - the section is perfectly general in its terms......perfectly general in its terms. both kinds of partition are dealt with in the same chapter of the land revenue act and the same provisions of law apply to both. i can see no reason why the bar of section 233(k) should apply to one and not to the other. the substantial difference between the two kinds of partition is that in an imperfect partition the joint responsibility for payment of land revenue is not done away with, but subject to this joint responsibility the shares are just as much allotted in separate ownership in the one kind of partition as in the other.4. the second objection is obviously futile. the policy of the law is that all disputes as to ownership of the mahal or patti to be partitioned should be finally disposed of in the partition proceedings. in practically every.....
Judgment:

Daniels, J.

1. The two points pressed in this appeal are both points of law, but as, in my opinion, the view of the Court below is correct, I propose to dismiss the appeal.

2. The suit has been dismissed on the ground that it offends against Section 233(k) of the Land Revenue Act. The plaintiff claimed a fifth share of a grove in patti Tara Singh. He is a recorded co-sharer in that patti but the share which he now claims is not recorded in his name. An application was made by the respondent for imperfect partition of that patti. Notice was issued to the plaintiff and he applied to have his own share separated off. In that partition that share in dispute was allotted to the defendant. On the face of it this is a clear case for the application of Section 233(k). The pleas urged are:

(1) That Section 233(k) does not apply to an imperfect partition.

(2) That though the plaintiff is a recorded co-sharer in the patti he is not recorded in respect of the particular property which he claims.

3. On the first point no authority has been shown to me nor has any substantial reason been advanced why the section should not apply. The section is perfectly general in its terms. Both kinds of partition are dealt with in the same chapter of the Land Revenue Act and the same provisions of law apply to both. I can see no reason why the bar of Section 233(k) should apply to one and not to the other. The substantial difference between the two kinds of partition is that in an imperfect partition the joint responsibility for payment of land revenue is not done away with, but subject to this joint responsibility the shares are just as much allotted in separate ownership in the one kind of partition as in the other.

4. The second objection is obviously futile. The policy of the law is that all disputes as to ownership of the mahal or patti to be partitioned should be finally disposed of in the partition proceedings. In practically every case in which objection is taken under Section 111, the objector's case is that he is not but ought to be recorded as proprietor of the land which he claims.

5. Agreeing with the Court below I dismiss the appeal under Order 41, Rule 11.


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