1. The Court has received considerable help in understanding the law on the subject from arguments of Mr. Shankar Saran and Dr. Waliullah. The entire case law has been placed before me and the facts of the case carefully explained. I have come to the conclusion that the lower Appellate Court has gone wrong and that the judgment of the Munsif is sound. The question at issue is whether the present suit is barred by the provisions of Section 233(k) of the Land Revenue Act. The facts are given great detail in the plaint. First of all there was an imperfect partition of a mahal in 1904 under which a lots were prepared and lot No. 1 was allotted to the plaintiff of the present suit and to the defendants Nos. 5 and 18. Subsequently in 1922 the predecessors-in-title of defendants No. 2, 3, 4, 5 and 18 applied for another partition. It must be remembered that the partition of 1904 was imperfect so all the co-sharers had to be made parties when a re-allotment of the parties was proposed. It is a mistake to state in para. 4 that the plaintiff and defendant No. 5 were merely pro forma defendants. They were necessary parties to the partition. The jurisdiction of the Revenue Court arises with respect to the entire mahal because no portion thereof had been lopped off with separate revenue in 1904. In the partition of ly22 it appears that plot No. 382 (present No. 462), was allotted to defendants Karim Khan and others. A tamarind tree stands on this plot and Karim Khan and others started making use of this tree. The plaintif's thereupon sued in the Civil Court for a declaration that the tamarind tree standing on plot No. 462 is owned by them and defendants Nos. 5 and 18 and that they were not bound by the partition proceedings of 1922 As usually happens defendants Nos. 5 and 18 were purposely kept out of the list of plaintiffs and relegated to the list of defendants because even the plaintiffs could not deny that defendants Nos. 5 and 18 were active parties by themselves or through their predecessors in-interest in the partition of 1922.
2. The defence naturally raised was that the Civil Court cannot interfere with the partition of 1922 under which this plot No. 162 was allotted to defendant Karim Khan. I think that the Munsif has made a trenchant observation in this matter. What he rightly points out is that the Revenue Court would have no jurisdiction to deal with land lying outside the mahal which was the subject of partition but in 1922 this plot No. 462 was not outside the mahal which was the subject of partition. The District Judge apparently takes the view that the subject of partition is the portion which is to be finally taken out and not the whole mahal. I cannot agree with that view. If for instance, the dais in this room is to be partitioned out of the room the Court making the partition will have jurisdiction over the entire room and if it wrongly partitions along with the dais one of the Pleader's chairs it will be within the jurisdiction of the Court to do so, however wrong it may be, having regard to the facts and the prayer of the plaintiffs. This view was explained by Banerj, J., in Bijai Misir v. Kali Prasad Misir 41 Ind. Cas. 912 : 15 A.L.J. 496 : 39 A. 469 (F.B.) and his judgment was the judgment of the majority of the Bench. He pointed out that the civil suit before him, as the case before me, was in substance a suit in respect of the partition of a mahal. Quoting Strachey, C. J., in Muhammad Sidiq v. Laute Ram 23 A. 291 A.W.N. (1901) 86 the learned Judge observes:
If the object of the suit is to establish the plaintiff's ownership and possession in respect of property as to which the Revenue Authorities in making a partition have declared that it should go to the defendant, that is a matter relating to partition and a Civil Courtis forbidden to take cognizance of it by the provisions of Section 233 (k).
3. The present suit before me is exactly a suit of that character. On behalf of the respondent the Pull Bench ruling of Shambhu Singh v. Daljit Sinqh 33 Ind. Cas. 19 : 14 A.L.J. 293 : 38 A. 243 was cited. Tudball, J., was one of the members of the Bench and he agreed with Banerji J, in the ruling reported as Bijai Misir v. Kali Prasad Misir 41 Ind. Cas. 912 : 15 A.L.J. 496 : 39 A. 469 (F.B.) so the facts of the two cases cannot have been similar. The law on the subject was examined by Daniels, J., in a Bench ruling in the case of Zorawar Singh v. Bhagwan Singh : AIR1925All590 and the principle laid down in the case of Muhammad Sidiq v. Laute Ram 23 A. 291 : A.W.N. (1901) 86 which was referred to by Banerji in the ruling in Bijai Misir v. Kali Prasad Misir 41 Ind. Cas. 912 : 15 A.L.J. 496 : 39 A. 469 (F.B.) was approved. A ruling in the case of Dharam Singh v. Ram Dial Singh 25 Ind. Cas. 177 : 12 A.L.J. 1126 delivered by a Single Judge was quoted on behalf of the respondents. The facts there were different and the real question in issue was whether a certain person who was made a party to the partition as holding a certain property can be bound by the order of the Revenue Court with respect to other land of which he was owner. Such a point does not arise in the present case.
4. The result of my consideration of the case-law on the subject is that the Munsif was correct I set aside the decree of the lower Appellate Court, restore the decree of the Munsif and dismiss the plaintiff's suit with costs of ail the Courts.