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Dhanukdhari Mani and ors. Vs. Mt. Piari and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1925All481
AppellantDhanukdhari Mani and ors.
RespondentMt. Piari and ors.
Excerpt:
- - as the suit has failed on the main grounds on which the plaintiff came to the court, he cannot be allowed any costs and will have to pay the costs of the defendant, mt......matter in issue between the parties-had already been dealt with adversely to the plaintiff in a partition proceeding, to which the present plaintiff and mt. piari were parties. an issue was therefore remitted to the court of first instance to ascertain whether section 111 of the u.p. land? revenue act barred the plea raised by the-defendants. the court of first instance-found on the evidence then adduced that. section 111 of the u.p. land revenue act did not bar the defence either as regards the zamindari share or the tenancy land in suit. that finding was upheld by the lower appellate court, which also came to the conclusion that the property in dispute was no longer the joint family property of raghubansman tiwari and paramhanaman tiwari, and that they were separate at the time of.....
Judgment:

Kanhaiya Lal, J.

1. This appeal arises out of a suit brought by Raghubansman Tiwari, the father of the present plaintiffs-appellants, for a declaration that he was the owner in possession of an 8-pies share in mauza Balahi and of certain plots of ex-proprietary land in the village Dhatura Khas on the allegation that he lived jointly with Paramhansman Tiwari, the husband of Mt. Piari, that Paramhansman had died in the lifetime of his father, and that Mt. Piari was only entitled to maintenance. It was further alleged that the name of Mt. Piari had been entered in the revenue papers for her consolation, that 4 bighas 12 dhurs of ex-proprietary land in the village Dhatura Khas was set apart for her maintenance and that she had wrongfully transferred a portion of the property, standing in her name, to the defendants Sheomohanmani Tiwari and Sheomohanmani Tiwari, without any legal necessity. The defence was that Paramhansman Tiwari, the husband1 of Mt. Piari lived separately from the plaintiff, that the transfers in question were made for legal necessity, and that as the daughter of Mt. Piari was alive, the plaintiff had no right to sue.

2. The Court of first instance found that Raghubansman Tiwari was living separately from Paramhansman Tiwari, that the property in dispute was originally their ancestral property and had passed out of the family by virtue of an auction sale to a person named Ganga Sahu, from whom it was subsequently obtained by gift by Raghubansman Tiwari and Paramhansman Tiwari jointly, and that though the transfers in question were not made for legal necessity, the plaintiff was not entitled to any relief because the daughter of Mt. Piari was alive.

3. During the course of the hearing of as appeal from that decree it transpired that the matter in issue between the parties-had already been dealt with adversely to the plaintiff in a partition proceeding, to which the present plaintiff and Mt. Piari were parties. An issue was therefore remitted to the Court of first instance to ascertain whether Section 111 of the U.P. Land? Revenue Act barred the plea raised by the-defendants. The Court of first instance-found on the evidence then adduced that. Section 111 of the U.P. Land Revenue Act did not bar the defence either as regards the zamindari share or the tenancy land in suit. That finding was upheld by the lower Appellate Court, which also came to the conclusion that the property in dispute was no longer the joint family property of Raghubansman Tiwari and Paramhanaman Tiwari, and that they were separate at the time of the death of the latter.

4. The learned Counsel for the plaintiff-appellant relies on the order passed in the< partition proceeding of the 27th January, 1920. It appears that in 1914 a partition proceeding was instituted on the application of a co-sharer named Mahangu Sabs in respect of the village Belahi; and in. the course of that proceeding an application was made by Mt. Piari on the 31st; March, 1914, that her share should also be separated. To this Raghubansman Tiwari, the present plaintiff, objected on the ground that he was joint with the husband of Mt. Piari and that Mt. Piari was only entitled to maintenance. That objection was disallowed by the Assistant Collector in charge of the partition proceeding on the 12th August, 1914. His finding was that Raghubansman Tiwari and Paramhansman Tiwari were separate. Before the petition could, however, be further proceeded with the settlement operations commenced and under the standing orders of the Board of Revenue the partition had to be stayed or suspended till the Settlement was completed. The Settlement was concluded in 1919. The partition proceeding was then resumed from the stage at which it was left. On the 20th December, 1919, Bharatman Tiwari and Mt. Piari moved the partition officer again for the separation of their share; but this application was opposed by Raghubansmin Tiwari on the old ground that he was joint with Paramhansman Tiwari, the husband of Mt. Piari, and that Mb. Piari was only entitled to maintenance, for which 4 bighas 12 dhurs of land had been allotted to her. The previous order passed by the partition officer was brought to the notice of the Court; but in spite of that order the Court proceeded to enquire into the merits of the objection afresh and came to the conclusion that Raghubansman Tiwari and Paramhansman Tiwari had been joint in estate and that Mt. Piari was not entitled to have the share recorded in her name separated. The present suit was filed on the 14th September, 1920, for the declaration above referred to ; and in the alternative it was claimed that if the plaintiff was not found in joint possession, a decree for possession should be awarded to him.

5. The main question for consideration is whether the second order of the partition officer operates as res judicata. It is clear that that order was not passed under Sections 111 and 112 of the U.P. Lind Revenue Act because the objections filed to the partition had already been determined in 1914 and the effect of the suspension of the partition proceeding owing to the Settlement operations merely was to revive the partition proceeding from the stage at which it had been left, Section 111 contemplates an objection, raising a question of title, being raised on or before the date fixed in the notice issued by the Collector, to the co-sharers inviting objections to the application for partition. An order passed on such an objection is treated as regards the rights of the parties, as if it were a decree of the Civil Court; and an appeal from that order lies to the District Judge. The order of the 12th August, 1914, appears to have been passed on an objection filed by Rashubansman Tiwari under Section 111 of the U.P. Land Ravenua Act. That order could only have been varied by a Court of appeal competent to determine the question of proprietary title within the meaning of Section 119 and not by an order of another partition officer at a subsequent stage of the same proceeding. As pointed out in Hardeo Singh v. Narpat Singh (1897) 20 All. 75 and Kalka Prasad v. Manmohan Lal (1916) 38 All. 302 an order passed on an objection filed after the date fixed in the notice had expired cannot be treated as an order determining the rights of the parties under Section 112 of the U.P. Land Revenue Act; and the Courts below have rightly refused to attach any finality to it. The order did not purport to be an order passed on a review of the previous order. The officer who passed this order was not the same as the officer who passed thee previous order. The order of the 12th August, 1914, was on the other hand final between the parties on the question now at issue; and the Courts below have rightly refused to regard the plaintiff as entitled to more than a possible reversionary interest in the property of Paramahansman Tiwari, in case Mt, Piari died, leaving no daughter or male children or grandchildren.

6. The plaintiff can, however, be granted a declaration to protect his possible reversionary rights. The appeal is therefore allowed in so far that the plaintiff will be granted a declaration that the transfers made by Mt. Piari in favour of the other defendants will not be binding on the reversionary heirs of her husband after her death. As the suit has failed on the main grounds on which the plaintiff came to the Court, he cannot be allowed any costs and will have to pay the costs of the defendant, Mt. Piari here and in the Courts below. The defendant transferees will bear their own costs throughout.


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