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Tota Ram Vs. Musammat Sahodra and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported in2Ind.Cas.988
AppellantTota Ram
RespondentMusammat Sahodra and ors.
Cases ReferredKhasay v. Jugla
Excerpt:
n.w.p. and oudh land revenue act (iii of 1901, local), sections 111, 112 - proprietary title--objection by a person recorded as co-sharer--no appeal to district judge. - .....the order passed on the application foe the correction of the jamabandi. tota ram appealed to the district judge who came to the conclusion that the order passed by the assistant collector was not appealable to that court under section 112 of the land revenue act, one of the reasons given for this conclusion is that the respondent is not a recorded co-sharer and that her application, therefore, did not come within the purview of section 111 of the land revenue act. the learned district judge returned the memorandum of appeal to the appellant for presentation to a competent court. tota ram has preferred a second appeal to this court and it is argued by his learned vakil that inasmuch as a question of title was decided by the assistant collector an appeal did lie to the district judge......
Judgment:

Karamat Husain, J.

1. Tota Ram applied for partition of his mahal. The 14th of September 1907 was fixed for. objections. No objection was taken on or before that day by any one. Musammat Sahodra on the 14th November 1907 presented an application praying that the land entered therein may be recorded as her haquiat mutafariqa and be formed into a patti. She was not a recorded co-sharer. Besides this application she had made an application for the correction of the jamabandi to the Tahsildar which application was also transferred to the Assistant Collector to whom the application for partition had been made. The Assistant Collector ordered that the order dated the 7th April 1898 be carried out, that the entries be made accordingly, that the land in claim be recorded as the petitioner's haquiat mutfarriqa, that in the fard taksim it be recorded as such in the separate possession of the petitioner and that the same order be regarded as the order passed on the application foe the correction of the jamabandi. Tota Ram appealed to the District Judge who came to the conclusion that the order passed by the Assistant Collector was not appealable to that Court under Section 112 of the Land Revenue Act, One of the reasons given for this conclusion is that the respondent is not a recorded co-sharer and that her application, therefore, did not come within the purview of Section 111 of the Land Revenue Act. The learned District Judge returned the memorandum of appeal to the appellant for presentation to a competent Court. Tota Ram has preferred a second appeal to this Court and it is argued by his learned vakil that inasmuch as a question of title was decided by the Assistant Collector an appeal did lie to the District Judge. The learned Counsel for the respondents says that an appeal lies only when the requirements of Section 111 are complied with. In this case the application was made by Musammat Sahodra who was not a recorded co-sharer and she as such could not apply for partition. See Habibullah v. Kushimba A.W.N. (1906) 199 He further says that as the Assistant Collector did not enquire into the merits of the objection the remedy of Tota Ram if any is a suit and he relies on Khasay v. Jugla 28 A. 432. The learned vakil for the appellant in reply to this argument says that the application of Musammat Sahodra is to be treated as a fresh application for partition and that the objection of Tota Ram is an objection by a recorded co-sharer and that, therefore, an appeal lies under Section 112 to the District Judge. A question of title, no doubt, has been decided by the Assistant Collector and the District Judge, under the circumstances ought to have a power to entertain the appeal, notwithstanding the irregular procedure of the Assistant Collector. But as the sections of the Land Revenue Act dealing with partition proceedings give a right of appeal to the District Judge only in cases where an application for partition has been made by a recorded co-sharer, an objection is made by a recorded co-sharer involving a question of proprietary title which has not been already decided by a Court of competent jurisdiction and the Revenue Court decides to enquire into the merits of the objection. I am, therefore, of opinion that the view taken by the learned District Judge is right and that he rightly declined to entertain the appeal. For the above reasons I dismiss the appeal with costs. I return the memorandum of appeal to the learned vakil of Tota Ram for presentation to a proper Court.


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