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(Diwan) Balwant Singh and ors. Vs. Kunwar Partap Singh - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1927All665
Appellant(Diwan) Balwant Singh and ors.
RespondentKunwar Partap Singh
Excerpt:
- - there are two kinds of partition, in 'perfect partition' the whole mahal is divided and the several portions become separate mahals, each severally responsible for the revenue distributed thereon. a more careful study of the application clearly shows that the applicant wished for perfect partition. this clearly was not a dispute as to method of partition merely......objection as soon as they knew of the intention of the partition officer to ignore the separate khatas and partition in the manner described as 'chakbast.' indeed they put in two objections. it is permissible to assume that one was put in before the partition proceeding was framed and one after. the first one may have been intended to raise a claim that they held khata no. 3. in severalty. the second one may have been intended to represent that no invocation of section 125 was necessary. it makes no difference, however, to our decision in this case whether either or both of the objections by the appellants preceded the framing of the partition proceeding. the partition officer considered the objection from both points of view. he held that if it was an objection raising a claim to.....
Judgment:

Ashworth, J.

1. This second appeal arises out of an application for partition made by the respondent under Section 107, U. P. Land Revenue Act (3 of 1901).

2. The applicant applied for partition stating that he was a co-sharer in a certain mahal to the extent of two annas, that the mahal was divided into several khatas, and that his two-anna share was in khata No. 1, (which was held in severalty by certain of the cosharers in the whole mahal). He also stated that there was a shamilat khata No. 5 in which he had a common interest along with the other co-sharers. He went on to say that there were always disputes between the parties (he had made all the co-sharers in the mahal parties as non-applicants to the case) in connexion with the collection of rent and payment of Government revenue. He, therefore, prayed for a complete mahal to be formed by partition of his two-anna share along with his interest in the shamilat land. Now a mahal is defined as local area under a separate engagement for the payment of land revenue. There are two kinds of partition, In 'perfect partition' the whole mahal is divided and the several portions become separate mahals, each severally responsible for the revenue distributed thereon. In 'imperfect partition' the several portions remain jointly responsible for the revenue assessed on the whole mahal: see Section 107, Land Revenue Act. A hasty perusal of the application might lead to the conclusion that the applicant merely wanted an imperfect partition. This would have freed him from liability to disputes in connexion with the collection of rent. A more careful study of the application clearly shows that the applicant wished for perfect partition. He wanted a separate mahal for himself and he wanted to avoid disputes as to the payment of revenue. Moreover, he asked that he should be given a portion of the abadi equivalent to his share.

3. A proclamation was issued calling on the recorded co-sharers to state their objections to the partition. No objection was filed within the time allowed, and presumably the partition proceeding declaring and detailing how the partition was to be made was framed under Section 114, Land Revenue Act. The present appellants are co-sharers in a khata or patti No. 3. They had apparently, and not without excuse, understood that the partition would be made merely by giving the applicant a specific area in khata No. 1, which he along with certain other co-sharers held in severalty and a portion of the shamlat khata No. 5. The partition proceeding, however, recorded that the partition would be made by awarding the applicant a portion of the whole mahal; that is to say in all the khatas including those held in severalty by co-sharers other than the applicant.

4. The Collector or officer making the partition is entitled under Section 125, to ignore a khata held in severalty 'if the partition cannot otherwise be conveniently carried out.' We must presume that he had come to the conclusion that Section 125 must be invoked. The appellants as holders of khata No. 3 objected. It is not clear from the record whether their objection was put in before the partition proceeding was framed or subsequently. It may be that they put in their objection as soon as they knew of the intention of the partition officer to ignore the separate khatas and partition in the manner described as 'chakbast.' Indeed they put in two objections. It is permissible to assume that one was put in before the partition proceeding was framed and one after. The first one may have been intended to raise a claim that they held khata No. 3. in severalty. The second one may have been intended to represent that no invocation of Section 125 was necessary. It makes no difference, however, to our decision in this case whether either or both of the objections by the appellants preceded the framing of the partition proceeding. The partition officer considered the objection from both points of view. He held that if it was an objection raising a claim to hold khata No. 3 in severalty, then it was time barred (the correctness of which decision the District Judge did not consider and we consider it unnecessary to consider). On the other hand, if it was an application objecting to the invocation of Section 125, it was challenging a discretionary power of the Court which could not be challenged except by an application to the Collector at the time of the confirmation of the partition proceedings. The Collector upheld chakbast method, i.e., the application under Section 125. The appellants appealed to the District Judge against the order of the partition officer declaring the objection to be time-barred if regarded as a claim that the objectors held khata No. 3 in severalty.

5. The District Judge threw out the appeal on the ground that the matter had already been decided by the Collector. In this he appears to have been wrong. Treated as an objection that khata No. 3 was held by the objectors in severalty, the matter had not been decided by the Collector. It had been decided by the partition officer, the objection being thrown out as time-barred. In the memorandum of this appeal it is urged that the appeal before the Collector related to one phase of the case, and this appeal relates to a question of proprietary title. The appellants are right in saying that the appeal or application to the Collector related to a subsequent phase of the case, namely the method of partition as opposed to the right and title of the co-sharers in the mahal.

6. It does not follow, however, that the District Judge was wrong in holding that he had no jurisdiction to hear the appeal. This depends upon whether the objection that khata No. 3 was held by the appellants in severalty involved a question of proprietary title. If it did then under Sections 111 and 112 of the Act the decision would be open to appeal to the District Judge. If it did not and merely involved a disputed question as to the method of partition or as to any right not amounting to a proprietary right, then no appeal would lie to the District Judge. In support of the appellants' contention that the objection involved a question of proprietary title, certain decisions of this Court have been cited to us. Before considering them we will state our view of the matter, because we shall be able to show that with this view none of the decisions cited conflict.

7. An objection or application stating that the applicant or objector has a certain title in any local area only involves a question of proprietary title if that title is denied. In the present case so far from it appearing that the appellants' title to hold khata No. 3 in severalty was disputed, it would seem that their claim was admitted by the applicant. At any rate the applicant did not pretend to have any interest in khata No. 3 as a holder in severalty. We are, therefore, prepared on this ground alone to hold that no question of proprietary title arose.

8. It has, however, been argued that even if the objection had been disputed by anyone, it would still not involve a question of proprietary title. With this contention we do not concur. The expression 'proprietary title,' in our opinion, will include not only the title to be proprietor or co-sharer but also any rights appurtenant to such a title. Primarily all the co-sharers in a mahal i.e. a unit under a separate engagement for the payment of land revenue, have a title to own and possess the mahal jointly. This title may give way to a title to hold in severalty different areas, i.e. khatas or pattis in the mahal. This is effected by what is called a private partition. The title arising under a private partition is nonetheless a proprietary title, because it is acquired without Government intervention, and is subject to the general liability of all co-sharers for the whole revenue of the mahal. Section 32, Land Revenue Act, which prescribes the registers to be included in the record-of-rights recognizes in Agra three classes of persons having interest in a mahal. One class is the proprietors, another class is the holders of land revenue free, and a third class is tenants and persons occupying land otherwise than as proprietors or cultivators. Sections 55 and 84 also recognize the co-sharers holding in severalty. The right of a co-sharer to hold in severalty does, therefore, if disputed, in our opinion, involve a question of a proprietary title.

9. All the decisions cited to us appear to be in conformity with this view. In Tulsi Ram v. Gatto Ram [1904] A.W.N. 225., and in Mohammad Nazar-Ullah Khan v. Mohammad Ishaq Khan [1910] 32 All. 523, it was merely held that an objection to give effect to a private partition, which was not disputed, was an objection to the method of partition and did not involve a question of proprietary title. In Ram Narain v. Jagannath Prasad [1916] 38 All. 115, the objection was that there had been a private partition. Presumably this objection must have been contested, because the partition officer directed the objector to bring a suit in the civil Court, If the objection had not been resisted no question could have arisen. This decision, therefore, confirms our view that a disputed claim as to severalty land is a question of proprietary title. Again in Parsidhan Rai v. Dhaneshar Rai : AIR1925All818 ., it was held that where there was a dispute as to the area and value of the land held in severalty, a question of proprietary title arose. This clearly was not a dispute as to method of partition merely. In conclusion, therefore, we hold that in this case the appellants did claim a right to hold in severalty a certain khata of the mahal which was to be partitioned, and that this was a claim of proprietary right, but that inasmuch as this claim was not disputed, no question of proprietary title arose for decision by the partition officer, The real dispute was whether this right of holding in severalty should be ignored in the partition by invocation of Section 1-25, Land Revenue Act, and that disputes did not raise a question of proprietary title.

10. We therefore hold, but on a different ground, that the District Judge was right in holding that appeal lay to him, and dismiss this appeal with costs.


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