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Raghubir and ors. Vs. Tulshi Ram and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1915All194; 29Ind.Cas.222
AppellantRaghubir and ors.
RespondentTulshi Ram and ors.
Cases ReferredAisha Begam v. Abdullah Khan A.W.N.
Excerpt:
u.p. land revenue act (iii of 1901), sections 106, 110, 111, 112, applicability of - imperfect partition--proprietary title--civil court, jurisdiction of. - - that court was not satisfied that the record was incorrect and rejected the present appellants application to have it altered, saying that their remedy lay in the civil court. , dealing with a plea similar to that put forward by the respondent tulshi ram in the present case, said the answer to this plea is that while it is true that on an application for perfect partition a case may arise on which, under sections 112 and 113 of the n. land revenue act, put the applicant for partition out of court'.without expressing any opinion as to the correctness of the construction placed in that case on the proviso to section 134 of the act..........am concerned now is that the appellants might and ought to have put forward their claim in certain partition proceedings and as thfy did not do so, they are not 'entitled to maintain the present suit. it is a fact that partition proceedings were instituted to which the appellants were made parties, the usual proclamation was issued and a date was fixed by which those concerned were required tc state their objections, if any, to the partition. the appellants had an opportunity of putting forward their objections, but did not do so. they may have been misled by an order of another revenue court passed on an application for the correction of the khewat. that court was not satisfied that the record was incorrect and rejected the present appellants application to have it altered, saying that.....
Judgment:

Chamier, J.

1. This appeal arises out of a suit brought by the appellants for a declaration, that they are entitled to a one-sixth share in a certain patti. The prayer for relief is riot worded in this way but this is the meaning of it. The lower Appellate Court has declined to make such a declaration, but has made a declaration of another description intended to limit the rights of the respondents in a certain way, On the facts as found by the lower Appellate Court the appellants are entitled to the share which they claimed and the only question is whether they are entitled to obtain a declaration to that effect in the Civil Court. It appears that in the khewat of 1305 Fasli the plaintiffs were shown as entitled to a three-eighteenths, share and the respondent Tulshi Ram was shown as entitled to an eight-eithteenths share. At the recent Settlement by some mistake a record was prepared showing that the appellants are entitled to no more than a one-sixteenth share while the respondent Tulshi Ram is shown as entitled to an eight-eithteenths share. Thus the appellants' share has been reduced and the respondent Tulshi Ram's share has been increased. The only defence with which I am concerned now is that the appellants might and ought to have put forward their claim in certain partition proceedings and as thfy did not do so, they are not 'entitled to maintain the present suit. It is a fact that partition proceedings were instituted to which the appellants were made parties, the usual proclamation was issued and a date was fixed by which those concerned were required tc state their objections, if any, to the partition. The appellants had an opportunity of putting forward their objections, but did not do so. They may have been misled by an order of another Revenue Court passed on an application for the correction of the khewat. That Court was not satisfied that the record was incorrect and rejected the present appellants application to have it altered, saying that their remedy lay in the Civil Court. The fact that another Revenue Court in another proceeding suggested that the appellants should proceed by way of a suit in a Civil Court, did not relieve the appellants from the necessity of putting forward their claim in the partition proceeding. It was contended in the lower Appellate Court, and it has been contended before me, that the rule laid down in a numbor of cases in this Court, including that of Nathi Mal v. Tej Singh 29 A. 604 : A.W.N. (1907) 190 4 A.L.J. 578 to the effect thatin party to a partition proceeding, who has had the opportunity of pleading a question of title and has not availed himself off that opportunity, cannot maintain a suit in the Civil Court for the relief which he might have claimed in the partition proceedings, does not apply to the case of an application for imperfect partition. Reliance is placed on the decision of this Court in Aisha Begam v. Abdullah Khan A.W.N. (1899) 190. In that case Knox and Aikman JJ., dealing with a plea similar to that put forward by the respondent Tulshi Ram in the present case, said the answer to this plea is that while it is true that on an application for perfect partition a case may arise on which, under Sections 112 and 113 of the N.-W.P. Land Revenue Act, there can be a decision which would have the effect of finally determining the conflicting claims, the same result cannot take place in a case of imperfect partition. In the case of an imperfect partition any objection, would, with reference to the last clause of Section 134 of the N.-W.P. Land Revenue Act, put the applicant for partition out of Court'. Without expressing any opinion as to the correctness of the construction placed in that case on the proviso to Section 134 of the Act of 1873, I think it is sufficient to say that that proviso finds no place in the present Land Revenue Act (Local Act III of 1901). Section 106 of the present Act provides that the procedure prescribed in Chapter VII of the Act shall be followed in all partitions, whether perfect or imperfect, except where it is otherwise expressly declared. The sections with which we are concerned in the present case are Sections 110, 111 and 112. It is not declared that these sections do not apply to imperfect partitions. I must, therefore, hold that they do apply to imperfect partitions and that the rule laid down by so many decisions of this Court, with reference to objections which might have but have not been put forward in the partition proceedings, applies under the present Act to proceedings taken for imperfect partition as well as to proceedings taken for perfect partition. For these reasons I am of opinion that the first relief claimed by the appellants in the present suit cannot be granted to them by the Civil Court, I, therefores dismiss this appeal with cost.


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