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Sheo Lall Singh and ors. Vs. Debi Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1889)ILR16Cal203
AppellantSheo Lall Singh and ors.
RespondentDebi Singh and ors.
Cases ReferredZahrun v. Gowri Sunkar I.L.R.
Excerpt:
partition - jurisdiction of civil court--partition by civil court of a portion of a revenue-payingestate--civil procedure code (act xiv of 1882), section 265--revenue-paying estate, partition of, into several revenue-paying estates. - .....by the plaintiffs against the defendants to partition the plots of land, contained in a revenue-paying estate among the persons entitled to the estate, but there is no claim in the plaint to have the estate or the revenue payable to government partitioned, in the sense that it should be turned into several revenue-paying estates.2. the subordinate judge has decreed the suit, and has directed that the civil court amin shall give effect to it, and the only ground of appeal here is, not that the decree is wrong, but that the decree must be given effect to, not by the civil court amin, but by the collector of the district, and various cases have been cited before us in support of that view. it is said that, by section 265 of the code of civil procedure, whenever the estate, in respect of.....
Judgment:

W. Comer Petheram, C.J.

1. This is an appeal from a decision of the Subordinate Judge of Gya, in a suit brought by the plaintiffs against the defendants to partition the plots of land, contained in a revenue-paying estate among the persons entitled to the estate, but there is no claim in the plaint to have the estate or the revenue payable to Government partitioned, in the sense that it should be turned into several revenue-paying estates.

2. The Subordinate Judge has decreed the suit, and has directed that the Civil Court Amin shall give effect to it, and the only ground of appeal here is, not that the decree is wrong, but that the decree must be given effect to, not by the Civil Court Amin, but by the Collector of the district, and various cases have been cited before us in support of that view. It is said that, by Section 265 of the Code of Civil Procedure, whenever the estate, in respect of which partition has taken place, is a revenue-paying estate, that partition must be carried out by the Collector. But it seems to us that the meaning of that section is, that where a revenue-paying estate has to be partitioned into several revenue-paying estates, that partition must be carried out by the Collector, because the revenue is affected, and it is for the Collector to say how much revenue shall be assessed upon each portion of the estate, so that there may be a proper security for that revenue, and we think that that is the view which was intended to be taken by Mr. Justice Prinsep and Mr. Justice Pigot in the case of Zahrun v. Gowri Sunkar I.L.R. 15 Cal. 198.

3. In that case, the learned Judges say-' Section 265 of the Code of Civil Procedure of 1882, which is generally a re-enactment of Section 225* of the Act of 1859 evidently contemplates the existence of the jurisdiction of the Civil Courts to try suits for partition of estates, or for the separate possession of the share of all undivided estate paying revenue to Government, but at the same time it leaves it to the Collector only to give due effect to any order passed by a decree of a Civil Court.' And then they go on to say,-' The effect of Section 29 of the Butwarrah Act, as we understand it, is, that the rights of the parties as between themselves in respect to any portion of the estate may be determined by the Civil Court, but that any decree of the Civil Court will not affect the joint liability of the sharers in respect to the payment of the entire revenue assessed on the estate until the Collector has taken proceedings in accordance with that Act.'

4. It seems to us that the meaning of the learned Judges in that case was to say, that the Civil Courts might deal with the matter and might give effect to their decisions, so long as they did not attempt to affect the joint liabilities of the sharers in respect of the whole estate as it stood before. That decision we think does not differ from the various decisions which have been cited before us, in which it seems to us that the learned Judges, when speaking of the partition of revenue-paying estates were speaking of the partition of such estates into several revenue-paying estates. That is a totally different thing from the partition of the lands within an estate as between the sharers leaving the whole estate liable for the whole revenue, which is the case before us.

5. For these reasons we think that this case is concluded by the case of Zahrun v. Gowri Sunkar I.L.R. 15 Cal. 198 which I have cited, and with which we entirely agree, and this appeal must be dismissed with costs.

* Division of estate or separation of share how to be made.

[Section 225: If the decree be for the division of an estate, or for the separate possession of a share of an undivided estate, paying revenue to Government, the division of the estate or the separation of the share shall be made by the Collector under the orders of the Court, according to the rules in force for the partition of an estate paying revenue to Government.]


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