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Thakur Dharam Singh Vs. Ram Dial Singh Fuller - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1914All432; 25Ind.Cas.177
AppellantThakur Dharam Singh
RespondentRam Dial Singh Fuller
Excerpt:
u.p. land revenue act (iii of 1901), section 233(k) - partition--land belonging to different mahals-partitioned--suit' for correction of mistake not barred. - - i do not see on what principle by reason of a mistake like this the, plaintiff can be precluded from retaining what admittedly belongs to him......to the defenant the plaintiff is now precluded from asserting his right thereto. under the land revenue act in force in these province the revenue courts are given exclusive jurisdiction to partition a mahal. in respect of each mahal separate proceedings for partition have to be instituted. if parties are co-sharers in more mahals than one it is not necessary for them to bring all the mahals into court for partition. the proceeding for partition, therefore, initiated by ram piari were proceedings for the partition of mahal kalan ghairkhwahindgar. on that application the revenue court had no jurisdiction to partition any other mahal or to touch the land which did not form part of the mahal in respect of which the application was made. under section 107 of the said act an.....
Judgment:

Sander Lal, J.

1. This appeal arises under the following circumstances. The parties to this suit were co-sharers of a village named Bhankra. In 1898 the village was partitioned and divided into several mahals. One of these mahals was assigned to Thakur Dharam Singh, the plaintiff-appellant, and was named after him. Another mahal known as Mahal Kalan Ghairkh wahindgar was formed. of the property owned by persons who had not applied for partition. In this mahal the defendant was a co-sharer. In Mahal Dharam Singh a plot of land,' No. 337, with an area of 2 bighas 7 biswas was assigned to the plaintiff and he held that land as part of his mahal. In the other mahal there were two plots of land, No. 336 and 417, the area of which was also 2 bighas 7 biswas, which formed part of a road, and one of them at least, No. 336, was shown as the property of the defendant. In 1900 a settlemant of the village took place. Plot No. 337 in Mahd Daram Singh was given a new number which if correctly stated was 981, and Nos. 336 and 417 in Mahal Ealau Ghairkhwahindgar received another number which if correctly stated was 797. The map of the village showing the mahals was correctly prepared and in that map old No. 337 was shown as in Mahal Dharam Singh and Nos. 336 and 417 as being in Mahal Kalan Ghair-khwahindgar. But by some mistake in the khasra which had been prepared at the Sattlement, as against No. 337 the corresponding number shown was 797 instead of 981. A similar mistake occurred in the khasra with reference to No. 336 and 417. Instead of the corresponding number being shown as 797 it was shown as 981. No one seems to have detected this mistake and it continued to linger on the record of the Revenue Settlement till it led to events which have given rise to this suit. The plaintiff continued to be in actual possession of the old No. 337 and the defendants of the numbers assigned to them inspite of the mistake on the record.

2. It appears that the plaintiff obtained a mortgage of the interest of some of the co-sharers in Mahal Kalan Ghairkhwahindgar and either by sale or foreclosure (the Court below is not clear by which procedure) ho later on became full owner of the share mortgaged to him. The plaintiff thus became a co-sharer in Mahal Kalan Ghairkhwahindgar also. In 1907 Musamrnat Ram Piari, a co-sharer in Mahal Kalan Ghairkhwahindgar, applied for partition of her share in the said mahal. To this proceeding the plaintiff as a co-sharer of that mahal was a necessary party and was impleaded as such. On the said application for partition the Ravenue Court proceeded to sub-divide this mahal. Ram Piari got her own mahal divided out and the non-applicants had a mahal assigned -to themselves. In these partition proceedings by reason of the mistake of the entry which I have mentioned above, the plot shown as No. 981', i.e. the old No. 337 which belonged to Mahal Thakur Dharam Sing , was by mistake treated as belonging to the old Mahal Kalan Ghairkhwahindgar. It was in that partition assigned to the lot of the defendant. No one seems to have been aware of the mistake nor did the Revenue Officers discover it. It was only recently when the defendant took proceedings against the tenant in possession of old No. 337 that the mistake was discovered. The plaintiff has now instituted this suit to obtain a declaration that old No. 337, the corresponding number of which is 981, is part and parcel of his Mahal Thakur Dharam Singh and that the proceedings in the partition in which No. 931 had been deemed to be a part of Mahal Kalan Ghairkhwahindgar did not affect the plaintiff's right to the said land. The facts themselves are undisputed. There is no doubt that No. 337, the present number of which is 931, is part and parcel of Mahal Dharam Singh and that it never was part of the other mahal. The question, however, is whether by reason of its being erroneously treated as part of the other mahal and alloted partition to the defenant the plaintiff is now precluded from asserting his right thereto. Under the Land Revenue Act in force in these Province the Revenue Courts are given exclusive jurisdiction to partition a mahal. In respect of each mahal separate proceedings for partition have to be instituted. If parties are co-sharers in more mahals than one it is not necessary for them to bring all the mahals into Court for partition. The proceeding for partition, therefore, initiated by Ram Piari were proceedings for the partition of Mahal Kalan Ghairkhwahindgar. On that application the Revenue Court had no jurisdiction to partition any other mahal or to touch the land which did not form part of the mahal in respect of which the application was made. Under Section 107 of the said Act an application for partition must be accompanied by a certified copy of the annual register of proprietors of the mahal sought to be partitioned. That copy would only show the shares in the said mahal owned by each proprietor. It would not show in detail the various numbers of the fields which go to make up the shares. Under Section 110 the Collector is required to issue notices to all' recorded co-sharers of the mahal who have not joined in the application, and under Section 111 any such recorded, co-sharer of the mahal may raise any objection that he may have to the partition of the mahal. Such objection must be filed on or before the date fixed in the proclamation for filing such objections. If in the objection so filed a question of proprietary title arises, the question may be disposed of in the manner provided by Section 112. It will thus be clear that the entire proceeding's in partition are confined to the mahal of the applicant. Under this Act it is not possible to deal in the same application with lands appertaining to another mahal. Now in this case it was perhaps not possible to raise any question as to the mistake in the numbers which has led to the present difficulty, as neither party seems to have been aware of it. In the application for partition this number was presumably not shown as of Ram Piari's mahal and it is only later on, when the details of the partition were settle that any question could possibly arise the mistake was not discovered before the date fixed in the proclamation it could not be made the subject of inquiry under Sections 111 and 112 of the Land Revenue Act;. The question then is, is the plaintiff now precluded either by the provisions of Section 233 (k) or for any other reason from getting the numbers corrected?

3. The Courts below have held that Section 233 (k) does not apply to this case. But the lower Appellate Court has held that by reason of the plaintiff not coming forward to disclose this mistake in the course of the partition proceedings he is now estopped from showing it and from retaining what he is entitled to. Mr. Dar on behalf of the respondent has supported the decree of the Court below on two grounds. In the first place be has urged that the suit is barred by Section 233 (k) of the Land Revenue Act and has relied upon the case of Lachman Das v. Hanuman Prasad 8 Ind. Cas. 807 : 33 A. 169 : 7 A.L.J. 1156. In that case the plaintiff was a co-sharer in the mahal which was being partitioned. He did not put in a claim in the partition case within the time fixed by Section 112 of the Land Revenue Act to Khata No. 34 of which he claimed to bo the proprietor. The proceedings in that case were proceedings for the partition of the mahal in which this man was a co-sharer and of the lands which-were admittedly in that mahal. The Court, in that case, held that being a co-sharer in the mahal it was his duty to bring forward his claim to the lands at the partition of that mahal in the course of those proceedings and as he had not done so, he was not competent to re-open the partition by a suit in the Revenue Court. The Court carrying on the partition had full jurisdiction to partition Khata No. 34 as it was admittedly part and parcel of that mahal. The other case relied upon is the case of Tirbeni Sahai v. Gokal Prasad 9 Ind. Cas. 475 : 33 A. 440 : 8 A.L.J. 244. There again the partition related to a mahal of which one of the pattis was claimed by the plaintiff. The land which was the subject of the partition appertained to the mahal. In this case it is common ground that the land 'in suit was not part and parcel of Mahal Kalan Ghairkhwahindgar. The Revenue Court, therefore, had no jurisdiction to deal with it in the partition of that mahal. The case more in point is the case of Kishan Prasad v. Kadher Mal A.W.N. (1900) 11. It has been urged that the plaintiff was a party to the partition proceedings in this case. He was, no doubt, a party in his position as a co-sharer of Mahal Kalan. Ghairkhwahindgar. It was in that character alone that he was impleaded in those proceedings. It is urged that he ought to have pointed out the mistake by showing the corresponding numbers. The answer to the objection is that neither party had discovered the mistake at that time. It is hard indeed to blame the plaintiff for not pointing out a mistake which it was equally the duty of the defendant to point out himself. He ought to have come forward when No. 981 was being' allotted to him and to have told the Revenue Officer that that land was no part of that mahal and to have got in exchange therefor some other land in that mahal. I do not see on what principle by reason of a mistake like this the, plaintiff can be precluded from retaining what admittedly belongs to him. The Court of first instance rightly held that Section 233 (k) did not bar the suit. The plaintiff is not seeking to re-open the partition of Mahal Kalan Ghairkhwahindgar. He only seeks to point out that this land is not part of, that mahal, but is part of Mahal Dharam Singh of which he is the owner, and for that purpose his position did not differ from that of an utter stranger who has no share in Mahal Kalan Ghairkhwahindgar.

4. The second ground relied upon by Mr. Dar is that the plaintiff is estopped. I do not see on what principle the plaintiff can be estopped. He made no representation that his old No. 337 was part of Mahal Kalan Ghairkhwahindgar. If anybody did make any representation it was probably the clerk who prepared the khasra. He misled both parties and I do not see how the plaintiff can be held responsible for his acts. The reason assigned by the Court below for refusing the plaintiff the decree asked for by him is that in the proceedings in 1907 he did not disclose this mistake. His claim is within limitation and his rights were subsisting rights on the date of the partition of 1907. Agreeing, therefore, with the Court of first instance I set aside the decree of the lower Appellate Court and restore that of the Court of first instance with costs including in this Court Counsel's fee on the higher scale.


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