1. This suit was brought for obtaining an order for partition of certain defined lands measuring 191 bighas 18 cottahs 10 dhure and 7 chattaeks under the following circumstances.
2. The lands in suit originally appertained to an estate No. 1212 on the rent-roll of the Collector of Tirhoot. The plaintiff's predecessor in title held a share amounting to 5 gunda 9 annas in the said estate.
3. In 1851 this estate was brought under bukvara under the then butwara law, Bugulation XIX of 1814, and the share belonging to the plaintiff's predecessor in title having been separated was recorded as No. 4080 of the towji. The lands in dispute, however, being not then fit for cultivation but covered with water were not divided but left joint amongst all the co-sharers of the present estate, whose shares were recorded in separate numbers. In apportioning the entire revenue payable on account of the parent estate, calculation was made excluding the assets of the disputed lands.
4. Recently these lands having become dry have become fit for cultivation. The plaintiff (respondent) made an application to the Collector for the partition thereof, by alloting to him a defined portion in proportion to his share of 9 annas 5 gundas. The revenue authorities at first entertained this application and commenced the initial proceeding in the shape of measurement of the lands in suit for the purpose of making the allotment asked for, but subsequently they refused to proceed with the proceeding and rejected the application for butwara, 'on the ground that the land did not bear an assessed revenue and was not shown in the towji.' Thereupon the plaintiff commenced the present suit, making the Secretary of State for India in Council and his co-sharers defendants.
5. He made the Secretary of State for India in Council defendant because he contends that the revenue authorities under the butwara law were bound to effect the partition prayed for on his application. The suit was answered by the Secretary of State for India in Council by the plea that the revenue authorities far from being bound were not even competent to entertain the application for butwara, the co-sharers who were made defendants not having contested the suit. The question discussed mainly in the lower Courts was the one thus raised between the plaintiff and the Secretary of State for India in Council. The decision of the lower Courts being against the latter, this appeal has been preferred to this Court.
6. It seems to us that the contention raised before us by the appellant is valid. There is no provision in the present butwara law, Beng. Act VIII of 1876, which applies to the facts of this case. Part II of the Act deals with the subject of the right to claim partition. This right is given to a recorded proprietor of a joint undivided estate only. By Section 4 a joint undivided estate is defined to be 'all lands which are borne on the revenue roll of a Collector as liable for the payment of one and the same demand of land-revenue, etc., etc.' Now the land in suit is not liable for the payment of one and the same demand of land revenue; because by the butwara of 1851 the land revenue which was demandable in respect of the parent estate was apportioned amongst the several estates into which it was divided, so that in respect of them it cannot now be said that the demand is 'one and the same.' The revenue authorities were, therefore, right in refusing the application for partition, although the reason upon which the refusal was made was erroneous. The said reason was, as already stated in the language used in the judgment of the Subordinate Judge, 'that the land did not bear an assessed revenue and was not shown in the towji.' This is not correct, because what was done in the butwara of 1857 had not the effect of making these lands revenue-free, or excluding them from the revenue towji. A certain interest in the land in suit after the partition of 1851 continued to appertain to the new estates which came into existence after the butwara was effected. For instance, after this partition the estate allotted to the (plaintiff) respondent comprised the defined lands assigned to it and an undivided fractional share (represented by 9 annas 5 gundas) of the land in suit.
7. Although the contention made in this appeal is valid, yet we are not called upon to interfere with the decree for partition made in the lower Courts. That decree is quite in accordance with Section 265 of the Code of Civil Procedure. But it was contended before us that the word 'estate,' which occurs in this section is used in the same sense in which it is used in the butwara law, Beng. Act VIII of 1876. But this contention does not seem to us to be correct. The definition of 'estate' as given in the butwara law, seems to be defective; for instance, it excludes definite lands held jointly by owners of estates recorded in the Collector's towji in separate numbers. There is no reason suggested why this restricted meaning of the word should be adopted in construing this word used in Section 265 of the Code of Civil Procedure. On the other hand, it will facilitate the ends of justice in many cases if we construe the word 'estate' here in its ordinary signification. In Chundernath Nundi v. Hur Narain Deb I.L.R. 7 Cal. 153 this Court adopted this construction of Section 265 of the Code of Civil Procedure.
8. The result is that, although the appellant was unnecessarily made a defendant, yet the decree that has been awarded is correct, except as to costs payable by him. But, under the circumstances, he is not entitled to recover costs against the (plaintiff) respondent; because the revenue authorities, by entertaining the application for butwara, put the latter to unnecessary costs. We accordingly modify the decrees of the lower Courts by reversing those portions of them which award costs against the appellant who will be entitled to recover costs of this appeal from the respondent.