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Kanhaiya Lal Vs. Ramjas Das and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1927All782; 103Ind.Cas.268
AppellantKanhaiya Lal
RespondentRamjas Das and anr.
Excerpt:
- - 432 for holding that the prohibition contained in section 233(k), land revenue act, applies only to suits in respect of partitions in which the plaintiff has had an opportunity of having his objections considered under section 111. in this case the plaintiff had no such opportunity because he had had no notice under section 110. we are fully justified in following that decision, which is clearly a just and equitable one......for decision in second appeal is whether the present suit was barred by clause (k) section 233, land revenue act. under that clause of that section a decision of the revenue court in a partition proceeding cannot be challenged in a civil court. in the present suit, however, it appears from the finding of the trial court, which was upheld by the lowest appellate court, that the plaintiff, although a co-sharer in the mahal, was no party to the partition proceedings. under section 110, land revenue act, when the application was made for partition, the plaintiff together with the other co-sharers in the mahal should have had notice, but the trial court has found and the trial court had the original record of the partition case before it and presumably examinedit, that ramjas das was not.....
Judgment:

1. This appeal arises out of a suit by one Munshi Ramjas Das for a declaration that two plots 152 and 425 in the village of Shahpur Bamhna are his property and are in his exclusive possession, and also for mesne profits.

2. There was a partition in the village, and in the course of that proceeding in the revenue Court the two plots in suit were awarded to the contesting defendant, the appellant Babu Kanhaiya Lal. The only point for decision in second appeal is whether the present suit was barred by Clause (k) Section 233, Land Revenue Act. Under that clause of that section a decision of the revenue Court in a partition proceeding cannot be challenged in a civil Court. In the present suit, however, it appears from the finding of the trial Court, which was upheld by the lowest appellate Court, that the plaintiff, although a co-sharer in the mahal, was no party to the partition proceedings. Under Section 110, Land Revenue Act, when the application was made for partition, the plaintiff together with the other co-sharers in the mahal should have had notice, but the trial Court has found and the trial Court had the original record of the partition case before it and presumably examinedit, that Ramjas Das was not made a party to the proceeding. That is a decision of fact, and we are, therefore, bound to conclude that the plaintiff had no notice and was no party to the partition proceedings. The learned Judge in his brief order has stated:

I do not think that it would be equitable to hold that the present claim is barred by Section 233(k), Land Revenue Act.

3. There is the authority of a Bench of this Court in the case of Khasay v. Jugla [1906] 28 All. 432 for holding that the prohibition contained in Section 233(k), Land Revenue Act, applies only to suits in respect of partitions in which the plaintiff has had an opportunity of having his objections considered under Section 111. In this case the plaintiff had no such opportunity because he had had no notice under Section 110. We are fully justified in following that decision, which is clearly a just and equitable one. The result is that this appeal fails and is dismissed with costs.


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