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Maharaja Birendra Kishore Manikya Bahadur Vs. Krishna Chandra Deb - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in65Ind.Cas.83
AppellantMaharaja Birendra Kishore Manikya Bahadur
RespondentKrishna Chandra Deb
Excerpt:
assam land and revenue regulation (i of 1886), section 97 - partition of portion of estate, application for, maintainability of--jurisdiction--'actual possession of interest,' meaning of. - .....because it is said that the defendant was not, within the meaning of the regulation, in actual possession of the interest in respect of which he sought the partition; and the meaning which is sought to place upon the words 'actual possession' is 'physical possession of the land;' but the regulation does not speak of land. the regulation speaks of actual possession of the interest, by which i understand that at the time when the application is made, it must not appear that the interest has been transferred or been otherwise lost. the court will only entertain applications by persons who have actual interest which would justify an application and the court's entertainment of it.2. then we come to the question of fact. as i have said, on an interpretation of the section, it will.....
Judgment:

George Woodroffe, J.

1. We have heard this case at very great length. The suit is one for declaration that certain partition proceeding instituted in the Revenue Court are illegal, without jurisdiction and contrary to the provisions of the Assam Land and Revenue Regulation which govern the present case, and for an injunction on the defendant restraining him from proceeding with the partition The application was for a partition of the whole estate, leaving out seven villages on the ground that the plaintiff had no interest in them. The Court was asked to deal with matters in which both parties had joint interest. That appears to be a reasonable application, but it is objected that it is not one which can be entertained under the provisions of the Regulation to which I have referred. An objection was taken in the Revenue Court and rejected. On appeal to the Deputy Commissioner the appeal was dismissed. On appeal to the Commissioner the appeal was again dismissed. On recourse to the Civil Court, the suit was dismissed and there has been an appeal to us, in which the question which has been agitated these four times is sought to be agitated again. In my opinion the Court did not act without jurisdiction in entertaining this application. It is then said that assuming that the Court had got jurisdiction, the case is not within the provisions of the Regulation, because it is said that the defendant was not, within the meaning of the Regulation, in actual possession of the interest in respect of which he sought the partition; and the meaning which is sought to place upon the words 'actual possession' is 'physical possession of the land;' but the Regulation does not speak of land. The Regulation speaks of actual possession of the interest, by which I understand that at the time when the application is made, it must not appear that the interest has been transferred or been otherwise lost. The Court will only entertain applications by persons who have actual interest which would justify an application and the Court's entertainment of it.

2. Then we come to the question of fact. As I have said, on an interpretation of the section, it will not be necessary to show that there was actual physical possession, but it is open to the appellant, as he has attempted to do, to show that the defendant had no actual interest by reason of the fact that the defendant had lost his interest by reason of the plaintiff's adverse possession for a period of twelve years. This has been attempted to be shown as regards three plots of land; sole possession has been alleged as regards Chak No. 179 Mouzah Sankarsena, Chak No. 2 Jiladpur, and in respect of Mouza Sri-mangal. As regards this latter land, the appeal has been faintly pressed. The evidence is slight and there is no document in support of the plaintiff's claim to absolute exclusive possession of the land. As regards this land and others, it appears that they were jungli lands within the period of twelve years of the application; and there is evidence also by the plaintiff's witnesses supporting the defendant's case as regards possession.

3. In my opinion the Subordinate Judge is right in the conclusion at which he has arrived, namely, that the plaintiff has not shown that he has adversely possessed the lands for twelve years and thus extinguished the title of the defendant. The partition, therefore, must go on, on the assumption that the defendant has title in the lands which are the subject-matter of the partition.

4. The question which has been raised by the appellant, namely, that he has a special claim for the allotment to him on such partition of particular pieces of land, on the ground that they are in possession of his tenants, that the lands have been improved and so forth, is a matter which will be open to him to put forward upon the partition. He can then put forward his claim and if he establishes a case, no doubt, the Commissioner of partition will give effect to his wishes.

5. The appeal is dismissed with costs.

Walmsley. J.

6. I agree.


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