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Alior Rahaman Pandit and Vs. Abdul Sobhan Munshi and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in55Ind.Cas.356
AppellantAlior Rahaman Pandit and ;ayaraja Howladar
RespondentAbdul Sobhan Munshi and ors.
Excerpt:
civil procedure code (act v of 1908), section 144 - restitution statement of partition commissioner embodied in final partition decree, whether conclusive evidence of prior possession--status quo ante, how to be ascertained. - .....it appears that one ayaraja howladar brought a suit for partition in which he made 64 persons parties defendants. it is not necessary to trace the history of this suit through all its stages or to consider whether at some of these stages some of the parties defendants were or were not improperly omitted. it is sufficient to say that on the 29th august 1902 the final decree for partition was made, that on appeal to the district judge the plaintiff's suit was dismissed and that on fur her appeal to this court the plaintiff was permitted to withdraw his suit. meanwhile in proceedings of 1913 in execution of the final decree, which by the order of this court fell to the ground, in execution taken out at the instance certainly of the plaintiff, possibly of certain of the defendants as.....
Judgment:

Teunon, J.

1. These two appeals arise out of two applications for restitution made under the provisions of Section 144, Civil Procedure Code. It appears that one Ayaraja Howladar brought a suit for partition in which he made 64 persons parties defendants. It is not necessary to trace the history of this suit through all its stages or to consider whether at some of these stages some of the parties defendants were or were not improperly omitted. It is sufficient to say that on the 29th August 1902 the final decree for partition was made, that on appeal to the District Judge the plaintiff's suit was dismissed and that on fur her appeal to this Court the plaintiff was permitted to withdraw his suit. Meanwhile in proceedings of 1913 in execution of the final decree, which by the order of this Court fell to the ground, in execution taken out at the instance certainly of the plaintiff, possibly of certain of the defendants as well, the possession of the allotments made in their favour was taken through the Court. The decree having been set aside, the defendants Nos. 14 and 37 applied to the Courts below for restitution of the plots which according to them had been taken from their possession, and made over partly to the plaintiff and partly to defendants Nos. 38 and 39. The plaintiff and these defendants resisted the application made by defendants Nos, 14 and 37, on the ground that the possession taken through the Court was purely formal, merely confirmed the pre-existing state of things and did not in fact affect the possession of the several parties. Their contention was not given effect to by the Courts below, on the ground in effect that the statement made by the Partition Commissioners in their report, which was embodied in the final decree of the Court of first instance, was as to the prior possession of the several parties conclusive.

2. In the view that they have taken we are of opinion that the Courts below have fallen into error. In a partition suit the allotments made in favour of the several co-sharers may be composed either of plots previously in the possession of these sharers or of plots previously in the sole possession of others or partly of plots of both categories. The decree is no doubt conclusive as to the allotments actually effected by it, but the statement made by the Partition Commissioners in their report as to prior possession, even though that report be embodied in the decree, cannot, in our opinion, be said to be conclusive as between the parties, even if admissible in evidence. No. doubt if the Commissioner be examined, his evidence or reference to his report will be of value; doubtless also the statement made by the plaintiff in his plaint and application for execution, also of defendants Nos. 38 and 39 in their written statements and in their application for execution, if any, will be of value. But the questions that arise between the parties, questions which can hardly arise in other than partition suits, are questions which in our opinion must he determined on evidence.

3. We, therefore, decree these appeals, set aside the orders of the Courts below and remand the eases to the Court of first instance to be heard and determined on evidence.

4. Costs of this hearing will be costs in the ease. We assess the hearing fee at two gold mohurs in each appeal.

5. The appeals having been decided, the connected Rules Nos. 461 and 462 of 1919 are discharged. We make no order as to costs in the Rules.

6. Let the record be sent down without delay. We express the hope that the cases will now be heard and decided with all possible expedition.

Beachcroft, J.

7. I agree. The object of Section 144, Civil Procedure Code, is to restore the status quo ante, and when there are allegations, such as we have in this case, that can obviously only be ascertained by taking evidence.


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