1. This appeal arises out of a suit for declaration of the Plaintiff's title to the land in dispute on the allegation that it was included in a separate estate which was allotted to his predecessor-in-title upon a partition of the parent estate between him, the contesting Defendants and certain other co-sharers. It was further alleged that the disputed land was shown in the partition map as having been allotted to his predecessor-in-title, that the latter had obtained possession of the land in accordance with the map : that the Plaintiff and his predecessor-in-title had been in possession by receipt of rent from tenant, and that, as the contesting Defendants Nos. 5 to 7 were attempting to prevent the tenant from paying the rent to the Plaintiff, he brought this suit for declaration of his title and for confirmation of possession.
2. The main defence was that the land in dispute was allotted to the Defendants' taluk on partition according to the partition papers.
3. The Court of first instance held that the land in dispute was allotted to the Defendants Nos. 5 to 7 by the partition papers, and that the Civil Court had no power to question the correctness of the orders passed in the partition proceedings.
4. On appeal, the learned Subordinate Judge came to the conclusion that the Civil Court had jurisdiction to decide the question, that there were mistakes in the partition papers and that the map was correct. He accordingly set aside the decree of the Court of first instance and remanded the case to that Court for trial of the other questions raised in the suit.
5. The Defendants Nos. 5 to 7 have preferred this appeal against the order of remand.
6. The first question is whether the Civil Court can go into the question of the correctness of the orders passed in the partition proceedings.
7. Section 119 of the Estates Partition Act (V of 1897) provides that no order made under certain sections and Chapters of the Act including Chap. VIII shall be liable to be contested or set aside by suit in any Court, or by any means other than those expressly provided in the Act. There is a proviso to the section which, however, does not touch the question before us.
8. Chap. VIII consists of Section 57 to 61. Section 57, Sub-section (2) lays down that the Deputy Collector shall 'proceed to determine how the lands of the parent estate shall be partitioned into separate estates and shall cause to be prepared, (a) a paper of partition, in a form prescribed by rules made by the Board, specifying in detail.
(i) the lands which he has included in each separate estate, and the area of such lands.
(ii) the rental of such lands, and other assets, if any, of such separate estate.
(iii) the name or names of the recorded proprietor or proprietors of each separate estate and certain other matters; and
(b) a map showing the lands which fall within each separate estate and the boundaries of such lands.'
9. Then Section 58(1) provides that 'the partition as made under this Chapter, shall be submitted for the sanction of the Collector, and he shall by notice fix a day for the consideration of the same.
(2) Every such notice shall be served on the proprietors and shall be published in the manner prescribed by Section 104.
(3) The day fixed by the said notice shall be not less than 15 days after the publication of the notice at the Collector's Office.
(4) After hearing and disposing of any objection which may be preferred, the Collector shall pass such orders as he may think proper.
(a) approving the partition, with or without amendments.' It is unnecessary to refer to the other clauses.
10. Section 59 provides : 'When the partition has been approved by the Collector, the Deputy Collector shall, after making such alterations as may be necessary in the partition paper or map, or preparing a new partition paper ox map, in accordance with the orders passed by the Collector-
(a) cause to be prepared a separate extract of the portion of the partition paper which relates to each separate estate,
(b) cause to be tendered to any recorded proprietor of a separate estate or any authorised agent of such proprietor, who may be in attendance at the Deputy Collector's Office, the extract which relates to such separate estate and
(c) publish a notification at his office calling upon every proprietor to whom or to whose agent an extract from the partition paper has not been tendered as aforesaid, to take out of the Deputy Collector's Office the extract of the partition paper relating to his separate estate.' And Sub-section (2) lays down : 'If the circumstances of the partition so require, an extract of the map prepared by the Deputy Collector, or a copy of such map, shall be annexed to every separate extract from the partition paper mentioned in Sub-section (1).
11. It appears, therefore, that the partition papers must be prepared and an extract therefrom must be served upon the recorded proprietors under orders passed by the Collector. A map has also to be prepared and as laid down by Sub-section (2) of Section 59, in certain cases, a copy of the map is also to be annexed to every separate extract from the partition paper mentioned in Sub-section (1).
12. There can be no doubt upon these sections that the allotment paper which is referred to as an extract from the partition paper gives to the owner of each separate estate the lands allotted to him as forming his separate estate. The map is only to delineate the allotments made in the partition paper and must necessarily follow those papers. The title to the lands allotted to each must, therefore, depend upon the partition papers, and the allotments are based upon the assets of the lands given to each which cannot be disturbed without disturbing the partition.
13. It is contended on behalf of the Respondents that the suit was not for contesting or setting aside any order in the partition proceedings, but a suit for declaration of the plaintiff's title and for rent as against the tenant Defendants, and Section 119 of the Act therefore has no application to the case.
14. The Plaintiff, however, sought a declaration of his title to the lands as being included within the separate estate allotted to him, and for a further declaration that the lands were not included in the separate estate allotted to the Defendants. The learned Subordinate Judge came to the conclusion that the partition paper was erroneous, and unless the paper was held to be erroneous, the Plaintiff's title could not be declared to the land in dispute as being included within the separate estate allotted to him. Although, therefore, the suit may not, in form, be one for contesting the correctness of any order in the partition proceedings, in substance it was; and as a matter of fact the Plaintiff contested the partition paper which was prepared under the orders of the Collector and the learned Subordinate Judge has given effect to that contention. This, we think, the Court had no power to do.
15. It is further contended on behalf of the Respondent that the partition paper and the map are merely pieces of evidence, and that it is for the Court dealing with facts to attach such weight, as it thinks proper, to the partition paper and the map respectively. If, however, the partition paper is to be taken as the title-deed of each proprietor in respect of the lands allotted to him under the partition, as we think it should, it is open to us to consider in case of a discrepancy between such papers and the map, as to which of them should prevail. As already stated, the map merely delineates the plots allotted to each co-sharer by the partition paper and must necessarily follow it and we think that where there is a discrepancy between the two, the partition paper should prevail. The map by giving a particular colour to some of the plots, shows to which of the owners those plots had been allotted by the partition papers, and if it differs from the partition papers, it should be rejected as erroneous.
16. It has been contended by the learned Pleader for the Respondent that the suit was also based upon the ground that the Plaintiff and his predecessor, in-title had been in adverse possession for 12 years.
17. Such an allegation appears to have been made in the plaint, but the issues did not raise the question ,and we do not find any trace of it in the judgment of the Court of first instance.
18. The learned Pleader for the Respondents, however, says that the question might be covered by issue No. 6.
19. As a matter of fact, however, the question of adverse possession was not gone into in the judgment of the Court of first instance. The Munsif no doubt refers to the evidence of possession on both sides; but that is evidently in connection with the question of title based upon the partition.
20. Then again, the Plaintiff lost his suit in the Court of first instance and he appealed to the lower Appellate Court. But in the grounds of appeal no objection was taken on the ground that the question of adverse possession had not been dealt with by the Court of first instance, Under these circumstances, we are unable to give effect to the contention of the learned Pleader for the Respondents.
21. That being so, the appeal is allowed, the decree of the lower Appellate Court set aside and that of the Court of first instance restored with costs here and below.