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Sheosampat Pande Vs. Thakar Prasad and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported inAIR1920All198(1); 57Ind.Cas.128
AppellantSheosampat Pande
RespondentThakar Prasad and ors.
Cases ReferredMuhammad Sadiq v. Laute Ram
Excerpt:
jurisdiction of civil and revenue courts - suit for partition of trees only, cognisance of. - .....land in a zamindari, could also partition the trees standing on the land. that, however, is not the question here. the point to be decided is whether the revenue court can partition trees apart from the land on which the trees stand. there is no authority for the contention that by an application in the revenue court the purchaser of trees can obtain a partition of the trees. we think the court below was wrong in dismissing the suit for partition of the trees. we may mention that it is admitted that the defendants have acquired the interests of the plaintiff's vendor in the zamindari. a partition at his instance is, therefore, impossible. we accordingly set aside the decree of that court and remand the case under order xli, rule 23 of the code of civil procedure, with directions to.....
Judgment:

1. This was a suit for partition of certain trees existing in two villages, under the following circumstances. One Jagmohan Lal alais Jagat Lal, who was one of the four co sharers in the villages in question, sold to the plaintiff, Sheo Sampat Pande, his fourth share in certain trees which formed a jungle. As the other co sharers did not agree to a division of the trees and objected to the plaintiff cutting down and removing a fourth share of the trees, the plaintiff, the purchaser, brought the suit which has given rise to this appeal for partition of the trees. The Court below has dismissed the suit on the ground that it was not cognisable by the Civil Court and that the plaintiff's remedy was to go to the Revenue Court for partition. The original plaintiff appealed from this decision and contended that the suit was maintainable only in the Civil Court and could not be entertained by a Court of Revenue. The original plaintiff is alleged to have transferred his rights to his three sons, who have applied to be brought upon the record and have been arrayed as appellants. We are of opinion that the view of the Court below is incorrect. The suit was of a civil nature and was cognizable by a Civil Court, unless its cognizance was barred by any provision of law. It was said that the remedy of the plaintiff was to apply for partition to the Revenue Court. It must be borne in mind that the Revenue Court can only partition shares in the Zamindari. The plaintiff, purchaser, did not acquire any share in the Zamindari under his purchaser. All that he purchased was his vendor's share in the trees in the Zamindari and not the Zamindari itself. Therefore, it was not competent to him to go to the Revenue Court for partition and that Court could not partition the trees apart from the Zamindari. The Full Bench ruling in Muhammad Sadiq v. Laute Ram 23 A. 29 : A.W.N. (1901) 86, to which the learned Vakil for the respondents has referred, has, in our opinion, no bearing on the present question. In that case the question was whether a Revenue Court, which partitioned the land in a Zamindari, could also partition the trees standing on the land. That, however, is not the question here. The point to be decided is whether the Revenue Court can partition trees apart from the land on which the trees stand. There is no authority for the contention that by an application in the Revenue Court the purchaser of trees can obtain a partition of the trees. We think the Court below was wrong in dismissing the suit for partition of the trees. We may mention that it is admitted that the defendants have acquired the interests of the plaintiff's vendor in the Zamindari. A partition at his instance is, therefore, impossible. We accordingly set aside the decree of that Court and remand the case under Order XLI, Rule 23 of the Code of Civil Procedure, with directions to re-admit it under its original number in the register and to dispose of it according to law. Costs here and hitherto will be costs in the cause and costs in this Court will include fees on the higher scale.


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