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Mahadeo Rai and ors. Vs. Raghu Naik Rai and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in15Ind.Cas.817
AppellantMahadeo Rai and ors.
RespondentRaghu Naik Rai and ors.
Excerpt:
u.p. land revenue act (iii of 1901), sections 111, 112 - partition--question of proprietary title which ought to and might have been raked--res judicata--jurisdiction. - .....included 57 bighas, 14 biswas and 14 dhurs of land, which is the subject-matter of the present suit. the plaintiffs in, the present suit, or those whom they represent, made an application' also for partition and asked that the 57 bighas, 14 biswas and 14 dhurs might be made into a separate mahal, claiming that this property belonged to them absolutely. the assistant collector entertained these applications and as a result, there were partition proceedings before him which involved a partition of the property in dispute and other property. the assistant collector proceeded to make an order which was in the following term?: in view of the above, i think representatives of gopi rai and sheopal rai should remain in possession as they are of these 58 bighas and the plot should be included.....
Judgment:

1. This appeal arises out of a suit brought under the following circumstances. Inderdeo Rai and others applied for partition of Mahal Sherpar which included 57 bighas, 14 biswas and 14 dhurs of land, which is the subject-matter of the present suit. The plaintiffs in, the present suit, or those whom they represent, made an application' also for partition and asked that the 57 bighas, 14 biswas and 14 dhurs might be made into a separate mahal, claiming that this property belonged to them absolutely. The Assistant Collector entertained these applications and as a result, there were partition proceedings before him which involved a partition of the property in dispute and other property. The Assistant Collector proceeded to make an order which was in the following term?: In view of the above, I think representatives of Gopi Rai and Sheopal Rai should remain in possession as they are of these 58 bighas and the plot should be included as Mauza Jugadana of Sahdeo Rai and others. Bat the entry in the khewat against these 58 bighas should continue in the names of all the other co sharers along with. Sahdeo Rai and others as it is in other villages. The other co-sharers must gat lands of similar quality from Sahdeo Rai and others at the time of partition in lieu of these 58 bighas of Mauza Judagana of Nagdilpur from the shares of Sahdeo Rai and others according to law. ' An appeal against this order was preferred by the party of the plaintiffs in this suit to the District Judge, who held that no question of proprietary title was raised and, therefore, no appeal lay to him. On second appeal to this Court, the decree of the District Judge was confirmed and the judgment proceeds in the following words: 'In the true sense of the word, there was no question of proprietary title raised at all.' It may, perhaps, be urged that although the learned Assistant Collector did not proceed in the manner laid down by Section 111 of the Land Revenue Act, he did in fact entertain the question of proprietary title. However that may be, it is now too, late to contend that a question of proprietary title was raised having regard to the decree of this Court just now quoted. It is satisfactory to know that the real question between the parties, viz., whether or not the party of the plaintiffs had been in adverse possession of the property in dispute, was heard out on the merits before the Collector and the Commissioner. The plaintiffs-appellants urge that this question of proprietary title has never been decided and that, therefore, this present suit is maintainable. On behalf of the defendants, it is contended that having regard to the fact that partition proceedings involving the partition of this property had been instituted in the Revenue Court, no suit could be instituted in the Civil Court unless it came within the provisions of Section 111 or Section 112 of the Land Revenue Act. It is clear that the present suit is not a suit coining within the provisions of either of these sections. We think that the result of the decree of the High Court to which we have referred is a decision that the party of the plaintiffs in the partition proceedings did not raise the question of title. If this view is correct, it is clear that the party of the plaintiffs cannot now raise a question which they ought to and might have raised in the partition proceedings. It may appear a somewhat hard case upon the plaintiffs; at the same time, we are glad to say, after hearing the appeal very fully and the long history of the litigation which commenced in the year 1893, that no real; injustice has been done and that in the end the partition proceedings in the Revenue Court will work no injustice to any of the parties. We think that it would be a very unfortunate result if we had to allow the present appeal which. Would have the effect of re-opening the entire partition proceedings and re-embarking a very large number of persons on a fresh sea of litigation.

2. We dismiss the appeal with costs including in this Court fees on the higher scale.


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