Nasim Ali, J.
1. Estate No. 2 of the Mymensingh Collectorate was partitioned by the partition Deputy Collector into separate estates on 24th February 1926. We are informed that the partition proceedings are still pending in appeal before the Collector. By the order of the partition Deputy Collector under Section 57, Estates Partition Act, the plaintiffs in the suit out of which this appeal arises, in their share got Rupees 38-1-0 as assets out of a Mouza called Daribhabakhali. The Deputy Collector partitioned the estate on the footing that the estate was not divided by private arrangement formally agreed to by all the proprietors and that the proprietors were not in possession of separate lands representing their interest in the estate. On 7th September 1928, plaintiffs commenced the present suit in the Court of the Subordinate Judge at Mymensingh for a declaration that the interest in the parent estate is the proprietary right over certain specific lands only in one Mouza, viz,, Mouza Daribhabakhali in pursuance of a private arrangement formally made and agreed to by all the proprietors of the Estate and also a decree made by the civil Court in Partition Suit No. 91 of 1890. They accordingly prayed for a declaration that they were entitled to have their names registered under the provisions of the Land Registration Act to the extent of their interest and to have the specific lands in their possession assigned to them as a separate estate.
2. Only defendant 1 contested the suit. His main defences are: (1) that Estate No. 2 was never amicably partitioned between the proprietors thereof, but that for convenience of possession some cosharers hold some mouzas exclusively and similarly other co-sharer hold some other mouzas exclusively and the remaining mouzas are held by all the co-sharers jointly, and (2) that the civil Court has no jurisdiction to interfere with the allotments made by the partition Deputy Collector.
3. The trial Court found that there had been an amicable partition as alleged by the plaintiffs and decreed the suit. On appeal by defendant 1 to the lower appellate Court, the learned Additional District Judge has affirmed the finding of the trial Court that there was a private partition. He however rejected the plaintiffs' prayer for a declaration that they were entitled to have their names registered in respect of the specific lands belonging to them in only one mouza under the provisions of the Land Registration Act. Subject to the above modification he has affirmed the decree of the trial Court. Hence the present second appeal by defendant 1.
4. Mr. Roy on behalf of the appellant, has raised two contentions: (1) that the present suit is not maintainable in law, and (2) that the decree passed by the lower appellate Court is not warranted by law. As regards the first contention, Mr. Roy has put his argument thus: Plaintiffs' prayer for a declaration about the extent of their interest in the estate is based on the story of private partition. The partition Deputy Collector rejected the said story, consequently the same matter cannot be re-agitated in the civil Court. Plaintiffs cannot get a declaration about the extent of their interest from the civil Court. Now under Section 9, Civil P.C., the civil Courts have jurisdiction to try all suits of a civil nature, excepting suits of which their cognizance is either expressly or impliedly barred. It cannot be disputed that the present suit is a suit of civil nature. The question then is whether the present suit is barred expressly or impliedly by any other law. Mr. Roy's contention is that it is barred by 8. 119, Estates Partition Act. That section lays down that certain orders made by the partition authorities under the Estates Partition Act cannot be set aside by the civil Court. An examination of the provisions of that section shows that the order mentioned therein relates to the mode of division of Government revenue or to the details of partition. Section 119 therefore excludes the jurisdiction of the civil Court when the question raised before it relates to question of apportionment of Government revenue between the separate estates formed out of the parent estate or to the details of partition, but it does not oust the jurisdiction of the civil Court in matters which involve question of title: see Matangini Ghose v. Manmohini Ghose, 1928 Cal 41 and Kedar Nath v. Naresh Chandra, 1931 Cal 29. Now in the present suit the question raised is a question about the extent of plaintiffs' interest in the estate.
Although in popular language the extent of interest of a person in an estate would ordinarily denote his share in the estate and a question of extent of interest would be equivalent to a question of the extent of such share, according to the phraseology adopted in the Act, the extent of interest of a person in the estate may be represented by specific lands, and consequently a dispute as to the extent of such interest may necessarily involve a question as to the extent or quantity of land which represents such interest: see Raghunath Pershad Narain Singh v, Mohamed Gawahar Ali (1905) 2 CLJ 351 at p, 356.
5. If such a question is raised before the Collector, he determines it under Section 23. But Section 25 contemplates a suit in the civil Court raising the same questions as are referred to in Section 23. Therefore when the Collector has determined under Section 23, Clause (a) to proceed with the partition after the inquiry held by him into the question of possession, all the proceedings thereafter are necessarily subject to and controlled by the decree in the title suit contemplated by Section 25: see Raghunath Pershad Narain Singh v, Mohamed Gawahar Ali (1905) 2 CLJ 351 cited above. Sections 23 to 27 of the Act show that a civil Court has jurisdiction to decide questions of title or extent of interest not only between a proprietor and a stranger but also between proprietors themselves. The provisions of the Act therefore do not empower the revenue authorities to determine finally the question of extent of interest or of right or title. The suit is therefore not barred, either expressly or impliedly by the provisions of the Estates Partition Act. This contention therefore fails. The second contention of Mr. Roy relates to the form of the decree passed by the lower appellate Court. I have already pointed out that Section 25 provides for a suit for determination of the question of right or title. Sections 26 and 27 define respectively the effect of the decree in the title suit made while partition proceedings are in progress and made after partition proceedings have been completed.
Elaborate provisions are made which lay down that the decree shall be made in recognition of the partition proceedings and shall be framed In such a manner that the partition proceedings may not be nullified. The distinction between the case in which a decree is made while partition proceedings are in progress and the case in which the decree is made after the partition proceedings have been completed appear to be broadly this, namely, in the former case the successful litigant in the Court, may ask for a subdivision in the new estate into which the lands claimed by him have fallen whereas, in the latter case, the successful litigant occupies merely the position of a co-owner with the proprietors of the new estate within which the disputed lands have been included: Raghunath Pershad Narain Singh v, Mohamed Gawahar Ali (1905) 2 CLJ 351.
6. As the partition proceedings are now pending in appeal before the Collector, there will be no difficulty in giving effect to the decree made in the civil suit by the sub-division of the new estate into which the disputed lands have been included. If however the partition proceedings are taken to have been completed within the meaning of Section 27, in view of the fact that the plaintiffs' interest is the proprietary right over the specified lands in the disputed mouza and held by them in severally and they are therefore entitled to have assigned to them as their separate estate the specific lands under Section 5, Clause (2) of the Act the decision of the Courts below is to be taken in effect as a direction to the Collector to divide off the lands from the new estate and to assign them to the plaintiff as separate estate in accordance with the provisions of Section 28 of the Act. The second contention therefore also fails. The words 'and their right to have their names registered with respect to the same share' in the decree of the lower appellate Court are expunged. Subject to the above modification the decree of the lower appellate Court is affirmed. The appeal is dismissed with costs. Hearing-fee one gold mohur.
7. I agree.