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Gowri Sunkar and anr. Vs. Zaheun and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1888)ILR15Cal198
AppellantGowri Sunkar and anr.
RespondentZaheun and ors.
Excerpt:
jurisdiction of civil court - suit for partition--revenue-paying estate--proceedings under bengal act viii of 1876, section 31, effect of. - .....for decision before the lower courts as well as before us in second appeal is simply whether the civil courts have jurisdiction to entertain a suit of this description at the same time that a partition of the estate is pending before the collector. the jurisdiction of the civil courts is restricted only in questions affecting the right of government to assess and collect in its own way the public revenue. we observe that in act xix of 1873, regarding partition of estates in the north-western provinces, the legislature has declared it to be necessary to limit the ordinary jurisdiction of the civil courts, inasmuch as it has specially enacted section 135 so as to exclude their jurisdiction, except, as expressly provided, from interference with the proceedings of the collector in such.....
Judgment:

1. The plaintiffs, as co-sharers in an estate, asked for a declaration that, under a private partition made between themselves and the other proprietors, 3 bighas 10 cottahs were allotted to them, and they also asked for a partition of the estate by giving them an area representing their share, 1 anna 5 dams 10 cowries. A short time before the institution of this suit an application for butivara was made to the Collector by the defendants, and about the date of the institution of this suit an order was passed by the Collector under Section 31, Bengal Act VIII of 1876, declaring the estate to be under partition. The matter for decision before the lower Courts as well as before us in second appeal is simply whether the Civil Courts have jurisdiction to entertain a suit of this description at the same time that a partition of the estate is pending before the Collector. The jurisdiction of the Civil Courts is restricted only in questions affecting the right of Government to assess and collect in its own way the public revenue. We observe that in Act XIX of 1873, regarding partition of estates in the North-Western Provinces, the Legislature has declared it to be necessary to limit the ordinary jurisdiction of the Civil Courts, inasmuch as it has specially enacted Section 135 so as to exclude their jurisdiction, except, as expressly provided, from interference with the proceedings of the Collector in such matters of partition. There is no similiar provision, that we are aware of, in respect of the Civil Courts in Bengal. Section 265 of the Code of Civil Procedure of 1882, which is generally a re-enactment of Section 225 of the Code of 1859, evidently contemplates the existence of the jurisdiction of the Civil Courts to try suits for partition of estates or for the separate possession of the share of an undivided estate paying revenue to Government, but at the same time it leaves it to the Collector only to give due effect to any order passed by a decree of a Civil Court. Upon these considerations, as well as from the terms of Bengal Act VIII of 1876, it seems to us that, although the Collector may, in some respects, be able to decide on matters in dispute between co-sharers regarding their respective rights, still the jurisdiction' of the Civil Courts as the final Court for the settlement of such disputes is not ousted. The primary object of the law is to carry out as far as possible the partition of a joint estate on which the proprietors have agreed, but this is only subordinate to the protection of the interests of the Government revenue. The principal object in view is to carry out an equitable partition by which the interests of the Government may be secured by the apportionment of the revenue on each portion of the original estate. The effect of Section 29 of the Butwara Act, as we understand it, is that the rights of the parties as between themselves in respect to any portion of the estate may be determined by the Civil Court, but that any decree of the Civil Court will not affect the joint liability of the sharers in respect to the payment of the entire revenue assessed on the estate until the Collector has taken proceedings in accordance with that Act. The only question is whether the plaintiffs are entitled to ask the Court for an order declaring their right to separate possession of 3 big has 10 cottahs on the ground of a private partition by agreement amongst their co-sharers, and whether they are entitled to a share amounting to 1 anna 5 dams 10 cowries in any partition which may take place. We think that there are no valid grounds for the objection taken, and we accordingly affirm the judgment of the lower appellate Court and dismiss this appeal with costs.


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