1. This was a suit for the partition of a revenue-paying estate mouza Kazi Chuck, rakba Macharam Katarwa, being No. 3237 on the touzi of the Gya Collectorate, and bearing a sudder jumma of Rs. 100. The plaintiff, having purchased a 9 annas share of this estate from the defendant, found some difficulty in collecting his rents, and he accordingly applied to the Civil Court to have his share of the estate partitioned and separated by metes and bounds. The defendant did not appear, and the Court having come to the conclusion that the plaintiff was entitled to a decree for partition, appointed a Commissioner to make that partition, and ultimately on the 18th of December 1893 directed that the plaintiff should be put into possession of the 9 annas share as defined by the Commissioner.
2. It is objected before us on appeal by the defendant that under Section 265 of the Civil Procedure Code the learned Subordinate Judge had no power to appoint a Commissioner to make a partition of this property; but that, inasmuch as it was an estate paying revenue to Government, ha was bound under that section to have the partition made by the Collector according to the law for the time being in force for the partition of estates.
3. We are of opinion that this contention must succeed. We think that the section in question is imperative in its terms, and we are not aware of any case in which it has been held that a Civil Court is at liberty to proceed in any way other than that therein prescribed. The case of Debi Singh v. Sheo Loll Singh I.L.R. 16 Cal. 203 has been brought to our notice; but that case clearly differs from the present. That was a case in which the plaintiffs held a certain share in proprietary right and another share in mohararri right in a certain village, which village formed a portion of a revenue-paying estate, and they asked the Court to define the portion of the village from which they might collect the rents they were entitled to, without in any way carrying out a partition of the estate itself. That case, we think, is quite distinguishable from the present, and affords no ground for holding that a Civil Court is not bound by the distinct provisions of Section 265 of the Code.
4. We accordingly allow the appeal, set aside the final decree of the lower Court of the 18th December 1893, and direct that the Subordinate Judge do proceed in accordance with the provisions of Section 265 of the Code of Civil Procedure. As the defendant did not appear in the lower Court, where he might have raised this objection, we make no order as to the costs of this appeal.