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Sada Sheo and ors. Vs. Mt. Ram Peary and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtAllahabad
Decided On
Reported inAIR1931All29
AppellantSada Sheo and ors.
RespondentMt. Ram Peary and ors.
Excerpt:
- .....of the plaintiffs on the ground that that suit is barred by the provisions of section 233, (k), land revenue act. the facts are that the plaintiffs sued for possession of seven-eighths of certain zamindari property in the possession of mt. gurdei, defendant 2 claiming that plaintiffs and defendant 3, ram naik, are entitled to the whole of this property. the property in suit belonged to one harnath, who was of the family of the plaintiffs, and it has been found as a fact by the lower appellate court that on the death of harnath his son maharaj kishor was a leper to such an extent that he was disqualified from inheriting the property of his father. maharaj kishor nevertheless was entered for the property after the death of his father and died very shortly afterwards, and left a widow,.....
Judgment:

Bennet, J.

1. This is a Letters Patent appeal by the plaintiffs against the judgment of a learned single Judge of this Court dismissing the suit of the plaintiffs on the ground that that suit is barred by the provisions of Section 233, (k), Land Revenue Act. The facts are that the plaintiffs sued for possession of seven-eighths of certain zamindari property in the possession of Mt. Gurdei, defendant 2 claiming that plaintiffs and defendant 3, Ram Naik, are entitled to the whole of this property. The property in suit belonged to one Harnath, who was of the family of the plaintiffs, and it has been found as a fact by the lower appellate Court that on the death of Harnath his son Maharaj Kishor was a leper to such an extent that he was disqualified from inheriting the property of his father. Maharaj Kishor nevertheless was entered for the property after the death of his father and died very shortly afterwards, and left a widow, Mt. Ram Peary, defendant 1. The death of Harnath took place within six or seven years of the suit, and therefore there is no question of adverse possession. The suit has been brought on account of a deed of gift executed by Mt. Ram Peary in favour of her daughter Mt. Gurder of the property in question.

2. The allegation that the suit was barred by Section 233 (k) does not find a place in the written statement or in the grounds of appeal by the defendants to the lower appellate Court, but the lower appellate Court mentions that the point was raised in argument. The point was taken in the grounds of second appeal. When the matter came before the learned single Judge of this Court, the facts which would give rise to this plea were not contested, and in fact it is shown to us that in the statement of the plaintiff it is admitted that the plaintiffs were parties as cosharers to a partition in which partition a separate patti was formed for Mt. Ram Peary of the property in question. Argument was advanced in the Letters Patent appeal to the effect that the materials before the learned single Judge of this Court were not sufficient to establish the facts under which a bar under Section 233 (k), Land Revenue Act could be established; but there is no allegation in the grounds of appeal of this Letters Patent appeal to that effect, nor was there any argument on that point taken before the learned single Judge. Accordingly we consider that this point cannot be raised now and that the sole point which is open to argument in this Letters Patent appeal is purely a point of law whether the suit is barred by the provisions of Section 233 (k), Land Revenue Act.

3. Now various rulings of this Court have been referred to the learned single Judge and in argument. The first of these rulings is a Full Bench ruling reported in Mohammad Saddiq v. Lauti Ram [1901] 23 All. 291. In that ruling a Bench of five Judges held that where a question of title could have been raised in a partition proceeding in the revenue Court, and was not raised, then Section 241 (f), N. W. P. Revenue Act of 1873, bars a suit raising the question later in the civil Court.

4. In Kalka Prasad v. Manmohan Lal [1916] 38 All. 302 and Shambhu Singh v. Daljit Singh [1916] 38 All. 243. In both these rulings it was held that there was no bar under Section 233 (k) to a suit in the civil Court in somewhat similar circumstances. Later there was another Full Bench decision in Bijai Misri v. Kali Parsad Misr [1917] 39 All. 469 in which reference is made to both these Full Bench decisions reported in Shambhu Singh v. Daljit Singh [1916] 38 All. 243, and Kalka Prasad v. Manmohan Lal [1916] 38 All. 302. In the latest Full Bench ruling of Bijai Misri v. Kali Prasad Misr it is laid down that Section 233 (k) does bar a civil suit in which persons who had been parties to the partition suit sued in the civil Court to recover possession of shares other than had been entered in the partition application. We consider that this Full Bench ruling of Bijai Misri v. Kali Prasad Misr is a ruling which should guide us in the present case. 'We consider that the principles which should guide a Court in cases similar to the present are derived partly from res judicata under Section 11, Civil P.C., and partly from Section 233 (k), Land Revenue Act. We consider that these are not too isolated principles but that the effect of these two rules of law is to lay down one and the same principle. Under Section 107, Land Revenue Act, an application for partition is accompanied by a certified copy of the khewat showing the shares recorded for the cosharers in the mahal. If any cosharer, who is a party to the partition case, has any objection to the entry in the khewat of the name of a cosharer or of the amount of the share recorded for a cosharer, it is open to that party to make an objection before the partition Court. Such an objection is made under Section 111, Land Revenue Act, and on such an objection being made the revenue Court may either decide the question of proprietary title itself or refer a party to the civil Court or decline to grant the application until the question has been determined by a competent Court. If the revenue Court decides the question of title itself, Section 112 provides for an appeal to the civil Court.

5. It is clear therefore that at this stage in a partition proceeding it is the intention of the legislature that the parties to that partition proceeding should have an opportunity to raise any question of title to a share or to the amount of a share in the khewat in question. Now under Section 11, Civil P.C., where it is open to the parties to a suit to raise such a question and they neglected to raise that question, they are then debarred by Expln. 4 from raising the question in a subsequent suit. The parties therefore must take advantage of the opportunity which is afforded to them of having questions of title decided in the partition suit.

6. The learned Counsel for the appellant urged upon us that the particular patti for which the name of Mt. Ram Piary was entered was merely a case of entry of Mt. Ram Peary for her consolation. Now the only case recognized by the law of entries for consolation is in mutation cases in a khewat where a widow is occasionally entered for her consolation and not with the intention that she should hold the property for which she is entered as a Hindu widow's estate. But in a mutation case the revenue officer making the entry does so in an administrative capacity and he is not entitled to decide a question of title. In a partition proceeding the revenue Court is entitled either to decide a question of title or to refer the parties for decision of that question to the civil Court. The two cases therefore differ very greatly, and we do not consider that there is any validity in the plea put forward that the entry of Mt. Ram Peary in the partition patti was an entry which was merely for her consolation. We consider that it must be taken that such an entry was an entry that she should have the estate of a Hindu widow in that patti. We consider that the decision of the learned single Judge of this Court was correct and that Section 233 (k), Land Revenue Act and Section 11, Civil P.C., do bar the present suit by the plaintiffs. Accordingly we dismiss this Letters Patent appeal with costs.


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