1. This appeal arises out of a suit for a declaration that the order of the Collector of Backerganj, dated 1st November 1920, for refund of a certain amount of money deposited by the defendants as costs of the separation and partition of certain estates, is without jurisdiction, illegal and invalid and, therefore, liable to be set aside and also for the issue of a permanent injunction restraining the said defendants from withdrawing the money from the Backerganj Collectorate.
2. The allegations on which the plaintiffs brought the suit were briefly these : 5 estates, bearing touzi Nos. 1744, 1751, 3563, 5566, 6100 of the Backerganj Collectorate, originally belonged to two brothers, Radhakanta Sen and Krishnaram Sen. These estates have common lands. Radhakanta's share is known as 'Barha Hisya' and it comprises estates Nos. 1751, 3566 and eight annas of 6100, while the share of Krishnaram comprises estates Nos. 1744, 3563 and the remaining half of the estate No. 6100. Defendants 1, 5 and the predecessor of defendants 2 to 4 purchased the estate No. 1744 at a revenue sale. The plaintiffs, who became the owners of the 'Barha Hisya' of Radhakanta applied to the Collector on 22nd January 1915, for partition, after separation of the lands of estates Nos. 1751, 3566 and eight annas of 6100. To this the defendants filed an objection and in that objection they also prayed that the common land of the estate No. 1744 should be separated and a Record-of-Rights prepared. Thereupon, proceedings were drawn up on 24th July 1915, declaring the estates to be under separation and also under partition under Sections 5, 6 and 29, Estates Partition Act (Beng. 5 of 1897). An estimate of cost was prepared - cost of separation of the lands of the five estates and also cost of partition of Estates Nos. 1751, 3566 and 6100. A certain amount was realised from the defendants, who afterwards filed an application before the partition, the Deputy Collector denying their liability to pay. This objection was disallowed, but the Deputy Collector's order was, in appeal, set aside by the Collector of the District who ordered a refund of the money to the defendants. It was this order of the Collector, which the plaintiffs sought to set aside when they instituted the the suit that has given rise to the present appeal.
3. The Court of first instance decreed the plaintiffs' suit and declared that the order of the Collector for the refund of the money was without jurisdiction, illegal and invalid and it granted a permanent injunction restraining the defendants from withdrawing the said money, On appeal, the learned District Judge reversed the decision of the Court of first instance and restored the order passed by the Collector. The plaintiffs have appealed to this Court.
4. The chief point in controversy before us has been as to whether the learned District Judge was right in holding that the case was one under Section 84, Estates Partition Act. It was contended on behalf of the appellants that Section 6 of the Act and not Section 84 was applicable to the case. This contention is, in my opinion, sound and should be given effect to. In the application which the plaintiffs filed on 22nd January, 1915, their prayer was twofold. They asked, first of all, for a separation of the lands of the estates, and then for a partition of the estates Nos. 1751, 3565 and eight annas share of 6,100. It is true that in the concluding portion of the application, dated 22nd January 1915, the partition of the estates was only mentioned. But reading the application as a whole there cannot, in my opinion, be any doubt that the plaintiff's prayer was first of all for a separation of the lands of the estate and then for a partition of the same. And it was in this light that the plaintiffs' application of 22nd January 1915, was taken by the authorities. As observed before the proceedings which the Collector drew up on 24th July 1915, were proceedings whereby the estates were declared to be under separation and also to be under partition under Sections 5, 6 and 29, Estates Partition Act. I am, therefore, of opinion that the case was under Section 6 of the Act and cot under Section 84, under which alone the costs could be realized from the plaintiffs only and the defendants could claim any exemption from liability to pay. If Section 6 of the Act applies to the case - and I have held that it does apply - the costs under Sections 37 and 38 of the Act are to be levied proportionately on all the proprietors of the estates including the present defendants.
5. This is about the merits of the case, so far as the liability of the defendants to bear the costs proportionately is concerned. The correctness and validity of the order passed by the Collector allowing a refund of the money to the defendants has been questioned before us on another ground and that was that he had no jurisdiction to pass the order setting aside thereby the order that had been made by the Deputy Collector on the point. The contention of the learned advocate for the appellants, on this point also, must, in my opinion, be maintained. Section 111, Estates Partition Act enumerates the orders passed by a Deputy Collector which can be interfered with by the Collector on appeal. But an order, made under Sections 37 and 38 of the Act, finds no place in the list under Section 111. Our attention was drawn on behalf of the respondents to Sub-section 2 of Section 111. But this subsection can have no application, when it is remembered that the proceedings had not come up to the Collector for consideration under Section 58. I am, therefore, clearly of opinion, that the order passed by the learned Collector was an order passed without jurisdiction.
6. The learned District Judge set aside the order passed by the trial Judge on another ground, viz., that the civil Courts had no jurisdiction to entertain the plaintiff's suit, and in support of this View of the lower appellate Court, our attention was drawn to the provisions of Section 119, Estates Partition Act. It was said that an order passed under Sections 37 and 38 is an order under Chap. 5 of the Act and under Clause (b), Section 119, an order passed under Chap. 5 is not liable to be contested in any civil Court. But the short answer to this contention is that the order, the correctness of which was questioned and which was sought to be set aside in the case, was not an order passed under Sections 37 and 38 of the Act, but an order, whereby an order passed under those sections was interfered with and vacated.
7. The result of the aforesaid observations is that the appeal is allowed, the decree of the lower appellate Court is set aside and that of the Court of the first instance restored. The plaintiff-appellants will get their costs from the respondents throughout.
C.C. Ghose, J.
8. I agree.