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Sir Wasif Ali Mirza, Nawab Bahadur of Murshidabad Vs. Saradindu NaraIn Rai and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1925Cal953
AppellantSir Wasif Ali Mirza, Nawab Bahadur of Murshidabad
RespondentSaradindu NaraIn Rai and ors.
Cases Referred and Balwant Ram Chandra v. Secretary of State
Excerpt:
- .....by the defendant. it arises out of a suit brought for declaration of the plaintiffs' title to the chuck in suit and for recovery of possession thereof. both the courts below have found against the defendant and in this appeal three points have been raised. the first is that on a proper construction of the solenama between the parties it ought to have been held that this land was outside the partition and was the property of the defendant. the chuck in question appears to be resumed chakran land appertaining to mouzah bistupur, a mouzah hold separately by the defendant. but in the finally published record-of-rights it was recorded as a part of the joint mouzahs. in 1910 the defendant applied to the collector for partition of the mouzahs held joint under touzis nos. 253 and 254 under the.....
Judgment:

1. This appeal is by the defendant. It arises out of a suit brought for declaration of the plaintiffs' title to the chuck in suit and for recovery of possession thereof. Both the Courts below have found against the defendant and in this appeal three points have been raised. The first is that on a proper construction of the solenama between the parties it ought to have been held that this land was outside the partition and was the property of the defendant. The chuck in question appears to be resumed chakran land appertaining to Mouzah Bistupur, a mouzah hold separately by the defendant. But in the finally published record-of-rights it was recorded as a part of the joint mouzahs. In 1910 the defendant applied to the Collector for partition of the mouzahs held joint under Touzis Nos. 253 and 254 under the Estates Partition Act. In 1915 a solenama was filed setting the terms of the partition between the parties, and under that partition the mouzah containing the chuck in suit fell to she plaintiffs. The solenama was in those terms: ' The chucks within the mouzahs which the opposite party shall get under the terms of this solenama as appertaining to Touzi No. 254 definitely included within Touzi No. 253 under the survey and settlement of the record-of-right shall remain included within Touzi No. 253, and the petitioner the Nawab Bahadur of Murshidabad, shall remain in the ownership and possession thereof as before, and the chucks within the mouzahs, which the petitioner Nawab Bahadur of Murshidabad, is to get as appertaining to Touzi No. 253, which have been definitely included by the survey and settlement in the record-of-rights in Touzi No. 254, shall be owned and possessed by the opposite party and they shall remain included within Touzi No'. 254.' On this the plaintiffs' case is that whatever may be the origin of this chuck, it being included in settlement and record-of-rights in Mouzahs Santoshpur and Mahadia it will fall into their share even though it strictly belongs as chakran land to mouzah Bistupur, a mouzah even before partition solely possessed by the Nawab Bahadur of Murshidabad. We hold that this is the proper construction of the document. It is perfectly clear for the purpose of partition that the parties recognised the settlement and record-of-rights as fined as to the division of land, and that may result) in a chuck appertaining to a mouzah, but situated in another, changing ownership by virtue of the partition. We find this point therefore against the appellant.

2. The second point is that the present suit is barred under Section 119 of the Estates Partition Act (V of 1897). It is argued that the order is based on the fact that in 1916, after the defendant secured a rent decree against the tenants in spite of the plaintiffs' objection, the plaintiffs applied to the Collector to give effect to the partition made by him and to give them possession of the disputed chuck. The Collector, however, refused the plaintiffs' application. It Is argued that this order of the Collector was passed under Section 94 of the Estates Partition Act and therefore under Section 119 no suit lies to challenge it. In our judgment the order was not passed under Section 94 which contemplates the procedure to be followed by the Collector in giving possession of separate estates allotted to several proprietors after the proposed partition has been confirmed by higher authorities. It is difficult to discover under what provision of the law the order of the Collector was passed, because the partition proceedings came to an end in 1915. In 1916 the plaintiffs went to the Collector, as the officer who had made the partition, and asked for possession and for giving effect: to the partition. There is nothing in law which takes away the ordinary right of a person to institute a suit in the civil Court to recover what was allotted to him on partition.

3. The third point urged is that the suit is barred under Article 14 of the Limitation Act. The order of the Collector was passed in 1915 and the present suit having been instituted in 1921, it is contended that the suit is barred as being brought more then one year after the order of the Collector. This contention also is not sound. The order under Article 14 must be such an order which the officer is empowered under the law to pass and which would be effective unless set aside, and which further is an order which under the ordinary law is liable to be set aside by a suit in the civil Court. Reference in this connection may be made to the oases of Maqbul Ahmad v. Hara Gobinda Kalal (1906) 8 C.L.J. 470 and Balwant Ram Chandra v. Secretary of State [1905] 29 Bom. 480. The learned Advocate for the Appellant is not consistent in arguing this point; for he originally contended that the order of the Collector was not assailable in the Civil Court. As we have observed, the order passed by the Collector is not under any special provision of the law and is not such an order which cannot be questioned in a civil Court.

4. All the points having failed, this appeal is dismissed with costs.


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