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Debi Prasad Vs. Shamsher Khan and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1929All463; 118Ind.Cas.45
AppellantDebi Prasad
RespondentShamsher Khan and anr.
Cases ReferredMd. Sadig v. Laute Ram
Excerpt:
- - 2. the lower appellate court has failed to notice the time when the sale was effected in the course of partition proceedings. 291 does not apply because in that case the plaintiff had an opportunity under section 111 of raising the question of title, and failed to do so......the plaintiff has obtained a decree for possession thereof. both the subordinate courts held that debi prasad and his brother chandrika prasad were members of a joint hindu family and that the sale was invalid. the sale included zamindari property, and the lower appellate court held that with respect to that property the suit was barred under the provisions of section 233(k), land revenue act of 1901. that part of the suit was, therefore, dismissed and debi prasad has come here in second appeal.2. the lower appellate court has failed to notice the time when the sale was effected in the course of partition proceedings. shamsher khan was also a cosharer in the village in which dabi prasad and his brother chandrika prasad were cosharers. there were other cosharers. on 13th april 1915 one.....
Judgment:

Dalal, J.

1. The plaintiff sued for possession of a certain share of zamindari property on the ground that the sale was effected by a joint brother in favour of the defendant Shamsher Khan and the transfer was not made for any valid necessity of the family. The question of the house need not be considered as the plaintiff has obtained a decree for possession thereof. Both the subordinate Courts held that Debi Prasad and his brother Chandrika Prasad were members of a joint Hindu family and that the sale was invalid. The sale included zamindari property, and the lower appellate Court held that with respect to that property the suit was barred under the provisions of Section 233(k), Land Revenue Act of 1901. That part of the suit was, therefore, dismissed and Debi Prasad has come here in second appeal.

2. The lower appellate Court has failed to notice the time when the sale was effected in the course of partition proceedings. Shamsher Khan was also a cosharer in the village in which Dabi Prasad and his brother Chandrika Prasad were cosharers. There were other cosharers. On 13th April 1915 one of the other cosharers, Kalyan Singh, applied for partition with a prayer that his zamindari property may be formed into a separate mahal. On 7th July 1915 Shamsher Khan made a similar application. On 24th July 1915 Debi Prasad applied his share to be formed into a patti and placed in the mahal of Shamsher Khan. On 10th September 1915 Chandrika Prasad made a similar application. Proceedings were then taken under Section 111 by issue of a proclamation. At that time Chandrika Prasad had not sold his property, and a partition proceeding (tarz taqsim) was prepared under Section 114 after sanction was given by the Collector that a partition may be made under Section 113. A copy of the 'tarz taqsim' is on the record, and in that document Chandrika Prasad's name exists. A separate mahal was formed consisting of the patti of Shamsher Khan, a patti of Debi Prasad containing the shares of Debi Prasad and Chandrika Prasad, and many other pattis, altogether six. Separate revenue was assessed on the pattis, but the total of the mahal was jointly payable by all the cosharers of mahal Shamsher Khan. It was subsequent to the preparation of this tarz taqsim that Chandrika Prasad sold his share of the property on 23rd February 1916, to Shamsher Khan. It appears that in the partition proceedings Shamsher Khan applied for mutation of names, and an order for mutation in his favour after expunging the name of Chandrika Prasad was passed on 25th May 1916. A copy of the khewat of patti Debi Prasad shows that at first Debi Prasad and Chandrika Prasad were entered as owners in equal shares of this patti and subsequently a note was made in the remarks column that in place of Chandrika Prasad the name of Shamsher Khan was substituted. The partition proceeding was confirmed on 19th January 1917.

3. Having regard to the time at which the sale took place there was no opportunity for Debi Prasad to raise the question of title when proceedings were taken under Section 111, Revenue Act. The time was long past and the 'tarz taqsim' had been prepared under Section 114 when the sale took place. There is no indication in Chap. 7 relating to the partition of mahals that the question of proprietary title may be raised by parties to the partition subsequent to the preparation of the 'tarz taqsim.' The objection raising the question of title under Section 111 has to be raised at the very commencement after a proclamation is made of the application for partition under Section 110. It is nowhere stated that a party to the partition can take advantage of the provisions of Section 111 subsequently to get proprietary rights settled. Once a tarz taqsim has been prepared all proprietary rights have been settled by the revenue Court. What may happen subsequently would merely be an order for mutation just as may happen with respect to properties not under partition at the time. It is clear, therefore, that no question of res judicata can arise. There was no proceeding before the revenue Court, as there cannot be, for the determination of the question of title.

4. The second question will be whether this suit disturbed the partition or union of mahals which is forbidden by the provisions of Section 233(k), Revenue Act. As already explained, this suit will not affect the mahal which is shown in the khewat copy Ex. C-35 on the record. That mahal Shamsher Khan will remain the same and the revenue thereof will not be disturbed by the result of this suit. Moreover, the six pattis within the mahal will not be disturbed either. Shamsher Khan got his name substituted in place of Chandrika Prasad in patti Debi Prasad and did not have the share of Chandrika Prasad separated out of that patti and added to his own patti Shamsher Khan. What is desired by the plaintiff is merely the removal of the name of Shamsher Khan from the khewat of patti Debi Prasad which will not in any way disturb the partition of the village. The principle of the ruling of the case of Md. Sadig v. Laute Ram [1901] 23 All. 291 does not apply because in that case the plaintiff had an opportunity under Section 111 of raising the question of title, and failed to do so. In the present case the plaintiff had no such opportunity because the sale took place subsequent to the completion of proceedings under Section 111. I set aside the decree of the lower appellate Court and restore the decree of the trial Court with costs of all the Courts.


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