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(Khan) Ali Khan Vs. Masihuzzaman Khan - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1932All152
Appellant(Khan) Ali Khan
RespondentMasihuzzaman Khan
Excerpt:
- - the only difference between an imperfect partition and a perfect one lies in the liability to pay government revenue. bat so far as relations between the cosharers inter se are concerned, each is entitled to enjoy his separated share independently of the other. we are satisfied that section 233(b), land revenue act, does not in any way bar the jurisdiction of the civil court to grant the reliefs prayed for by the plaintiff-respondent and granted to him by the lower appellate court......therefrom.4. on general principles, interference by a cosharer other than the one in whose patti rent is to be collected is highly undesirable. the whole object of the partition, even though imperfect, is to enable each cosharer to have separate enjoyment of the land allotted to him, without interference by any other cosharer. the only difference between an imperfect partition and a perfect one lies in the liability to pay government revenue. in one case the whole' body of cosharers is jointly and severally responsible to pay the government revenue, while in the other the liability becomes divided, so that one cosharer is not responsible for the government revenue payable by the other; bat so far as relations between the cosharers inter se are concerned, each is entitled to enjoy.....
Judgment:

Niamatullah, J.

1. This appeal has arisen out of a suit brought by the plaintiff-respondent for a declaration that the defendant, who is the lambardar of the village, is not entitled to collect rent in Patti Masihuzzaman Khan, now belonging to him, the plaintiff, exclusively and for a perpetual injunction restraining the defendant from interfering with the plaintiff's right to collect rent in that patti. It appears that the village was undivided till 1333 F., when by an imperfect partition-two pattis' were made, one being Patti Masihuzzaman Khan allotted to the plaintiff-respondent. The defendant, who was the lambardar of the village before the partition, continued as such thereafter He claimed a right to collect the rent of the whole village, including Patti Masihuzzaman Khan, by virtue of his office as lambardar. This was objected to by the plaintiff-respondent, who brought the suit which has given rise to this appeal.

2. The defence was that, by virtue of his-office as lambardar and under a local custom, the defendant was entitled to collect, rent not only in his own patti, but in. Patti Masihuzzaman Khan, in which admittedly he had no other interest than, that of a lambardar. The Court of firs instance upheld the defence and dismissed the suit. The lower appellate Court, on appeal by the 'plaintiff, took a contrary view and decreed the plaintiff's suit, granting the reliefs of declaration and injunction, as prayed for by the plaintiff-respondent. Hence this second appeal by the defendant.

3. Reliance is placed, by the learned advocate for the appellant, on the provisions of the Dastur Dehi prepared in 1305 P., and on a clause in the scheme of partition. It is argued that the conjoint effect of the two is to maintain the status quo ante in the matter of collection of rent by the lambardar. The entry in the Dastur Dehi entitles the lambardar to collect rent payable in respect of joint property and to distribute it among the cosharers. The scheme of partition records that the provision of the Dastur Dehi, already referred to, shall remain intact. It appears to us that the Dastur Dehi entitled the lambardar to collect rent payable in respect of common land or other joint interests of the whole body of cosharers. It did not in terms, at any rate, empower the lambardar to realize rent payable in respect of lands held by any cosharer in severalty. The scheme of partition did not introduce any change in this respect, with the result that if, after the imperfect partition that has since been effected, there are any common lands or joint interests of the cosharers in respect of which rent is payable to them all, it is the lambardar who is entitled to make collections and to pay to the cosharers their shares of the profits. But, in so far as the land held by any cosharer in severalty or as part of his patti, in which no other cosharer has any interest is concerned, the lambardar can have no right of interference with the collection of rent by the owner, who alone is entitled to appropriate the profits accruing therefrom.

4. On general principles, interference by a cosharer other than the one in whose patti rent is to be collected is highly undesirable. The whole object of the partition, even though imperfect, is to enable each cosharer to have separate enjoyment of the land allotted to him, without interference by any other cosharer. The only difference between an imperfect partition and a perfect one lies in the liability to pay Government revenue. In one case the whole' body of cosharers is jointly and severally responsible to pay the Government revenue, while in the other the liability becomes divided, so that one cosharer is not responsible for the Government revenue payable by the other; bat so far as relations between the cosharers inter se are concerned, each is entitled to enjoy his separated share independently of the other.

5. Section 265, Agra Tenancy Act (Act 3 of 1926), is in full accord with the view we have indicated. It entitles the lambardar to collect rent, in the absence of any contract or usage to the contrary:

in an undivided mahal or common land of malial, thak or patti, of which he is the lambardar.

6. It can have no application to the case| of a mahal which is divided, that is a mahal in which a division of land has been made by an imperfect partition. Gases frequently occur in which portion of a mahal is left joint on a shamilat or patti 'after separate pattis are formed to be held I in severalty, by separated cosharers. Subject to any custom or agreement to the contrary, a lambardar is, in accordance with Section 265, entitled to collect rent in respect of such shamilat pattis;' but he is not entitled to interfere with the collection of rent by a cosharer in his own patti, which has been separated for him from the rest of the mahal.

7. The learned advocate for the appellant has contended that the suit is barred by the provisions of Section 233(b), Land Revenue-Act, which excludes the, jurisdiction of the civil Court as regards:

claims by any person to any of the offices mentioned in Sections 23, 25 or Section 45, or to any emolument or fees appertaining to such office, or ins respect of any injury caused by his exclusion there from, or claims by any person to nominate' persons to such office.

8. The argument is that the plaintiff virtually prays for a relief which prevents the= lambardar from functioning' as such. We-are unable to give effect to this contention. The reliefs claimed by the plaintiff do not impugn the defendant's position as lambardar of the mahal including Patti Masihuzzaman Khan. It is not disputed that, he continues to be the lambardar of the> entire mahal. He however questions and in our opinion has the right to question, his right to collect rent in a particular portion of the mahal, which now exclusively belongs to the plaintiff. Any emoluments or fees which appertain to the office of a lambardar and to which the defendant appellant may be entitled is not in question in the suit. We are satisfied that Section 233(b), Land Revenue Act, does not in any way bar the jurisdiction of the civil Court to grant the reliefs prayed for by the plaintiff-respondent and granted to him by the lower appellate Court. The result is that the appeal fails and is dismissed with costs, including fees in this Court on the higher scale.


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