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Priyanath Roy Vs. Sreedhar Chandra Roy and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1945Cal28
AppellantPriyanath Roy
RespondentSreedhar Chandra Roy and ors.
Cases ReferredAbdul Razak v. Sreenath Ghosh
Excerpt:
- .....of revenue is asked for. it was pointed out by one of the judges in this case that section 12, estates partition act, which provides that any civil court which has made a decree for the partition or for separate possession of a share of an undivided estate paying land revenue to the government may, notwithstanding anything in section 265 (now section 54), civil p. c, cause the decree to be executed in the manner provided in section 396 (corresponding to order 26, rules 13 and 14), civil p. c, was also against the contention that section 54 of the code left the civil court no option to effect that partition decreed by it through any agency other than the collector even where no separate allotment of revenue is asked for. we may further add that in the present case there was no prayer.....
Judgment:

Rau, J.

1. This is an appeal by the plaintiff against a final decree in a suit for partition of a temporarily settled estate being No. 2989 of the 24-Parganas District, the plaintiff's share being one-fourth. The main point taken before us is that the decree is incompetent or irregular by reason of Section 154, Civil P. C. This section runs:

Where the decree is for the partition of an undivided estate assessed to the payment of revenue to the Government or for the separate possession of a share of such an estate the partition of the estate or, the separation of the share shall be made by the Collector or any gazetted Subordinate of the Collector deputed by him in this behalf in accordance with the law if any for the time being in force relating to the partition or the separate possession of the shares of such estates.

This should be read along with Order 20, Rule 18, Civil P. C, which for convenience is reproduced here:

Where the Court passes a decree for the partition of property or for the separate possession of a share therein, then, (1) if and in so far as the decree relates to an estate assessed to the payment of revenue to the Government, the decree shall declare the rights of the several parties interested in the property, but shall direct such partition or 'separation to be made by the Collector, or any gazetted subordinate of the Collector deputed by him 'in this behalf, in accordance with such declaration and with the provisions of Section 54; (2) if and in so far as such decree relates to any other immovable property or to moveable property, the Court may if the partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree declaring the rights of the several parties interested in the property and giving such further directions as may be required.

2. The preliminary decree in the present case was for the partition of an undivided estate assessed for the payment of revenue to the Government, and the appellant's contention is that both as required by the section and by the rule quoted above the decree should have directed partition to be made by the Collector and that the Court was wrong in proceeding to make a partition of its own. This point might have been taken but it was not taken in the appeal against the preliminary decree, and it is, therefore, a question whether it can be taken now in an appeal against the final decree. In the view which we take on the merits of the appeal, however, it is not necessary for us to decide this question.

3. We proceed to the merits. It appears that in this case the plaintiff while asking for partition did not ask for any separate allotment of the Government revenue, so that the land of the entire estate was to continue to be liable for the whole of the land revenue. In Jogodishury Debea v. Kailash Chundra Lahiry ('97) 24 Cal. 725, which was heard by a Pull Bench of five judges of this Court, the question which was propounded for decision was,

whether having regard to the provisions of Section 265, Civil P. C. (now Section 54), the civil Court can make a partition of land of a revenue paying estate when no separate allotment of Government revenue is asked for.

It was held by a majority of three to two that the question must be answered in the affirmative. In a subsequent case however Abdul Razak v. Sreenath Ghosh : AIR1931Cal93 a Division Bench of two Judges of this Court appear to have expressed their concurrence with the minority in Jogodishury Debea v. Kailash Chundra Lahiry ('97) 24 Cal. 725, so that so far as this Court is concerned, there is actually a majority of four to three against the majority in the Pull Bench case. We are, however, bound by the Pull Bench decision until it is overruled by higher authority. We may add that in the case in Radha Kishun v. Bhola Chaudhuri ('34) 21 A.I.R. 1934 Pat. 365, the Patna High Court following the authority of the Pull Bench decision mentioned above held that Section 54 does not apply to a suit for partition of a revenue paying estate when no separate allotment of revenue is asked for. It was pointed out by one of the Judges in this case that Section 12, Estates Partition Act, which provides that any civil Court which has made a decree for the partition or for separate possession of a share of an undivided estate paying land revenue to the Government may, notwithstanding anything in Section 265 (now Section 54), Civil P. C, cause the decree to be executed in the manner provided in Section 396 (corresponding to Order 26, Rules 13 and 14), Civil P. C, was also against the contention that Section 54 of the Code left the civil Court no option to effect that partition decreed by it through any agency other than the Collector even where no separate allotment of revenue is asked for. We may further add that in the present case there was no prayer by any of the parties for an apportionment of the land revenue, so that the circumstances would bring it within the decision of the Pull Bench in Jogodishury Debea v. Kailash Chundra Lahiry ('97) 24 Cal. 725 whereas in Abdul Razak v. Sreenath Ghosh : AIR1931Cal93 , one of the defendants insisted from the beginning that if there was to be a partition, a perfect partition severing the revenue as well as the land was the proper thing to do. For these reasons we hold that this contention must fail.

4. The other point taken before us relates to the costs of certain improvements. It is contended on behalf of the appellant that even if the final decree should stand, he should not be charged one-fourth of the total cost of 'these improvements as the Courts below have ordered, but he should be charged only the cost of the improvements so far as they actually affect his own allotment. It seems to us that there is some confusion of thought here. Where the improvements have enhanced the value of the property and the plaintiff's allotment has been made on the basis of a one-fourth share of the higher value, he must obviously pay one-fourth of the cost of the improvements that have, led to the higher value. It is not clear from the record on what basis the plaintiff's allotment has actually been made. Had the question been raised at the proper stage, the matter could have been properly investigated. We do not think we can allow this matter to be canvassed now. It has been brought to our notice that since the date of the final decree for partition which was made on 14th January 1941 and while that decree was under appeal in the Court below, the plaintiff has applied for partition of the estate under the Bengal Estates Partition Act, 1897. This he did on 27th August 1941, and on 15th April 1942, the Collector apparently made an order under Section 29 of the Act, declaring the estate to be under partition. It is said that these proceedings are still going on. It is not necessary for us at this stage to pronounce upon the legal effect of these proceedings, if they should be pressed to a conclusion. The result is that the appeal must be dismissed with costs. The application under Section 115, Civil P. C, is rejected.

Biswas, J.

5. I agree.


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