1. The plaintiff in this suit is a shareholder in Mehal Nowadabin, Pargana Arrah, in the Shahabad District. He alleges that he and his co-sharers, the defendants, 105 in number, are in separate possession of the land of their respective shares under a private partition made 'centuries ago,' but that some of the defendants brought the entire estate under regular partition, according to Reg. XIX of 1814, during his infancy, which terminated in Assin 1285 F (October 1876), and the proceedings were going on when he brought this suit on the 2nd July 1878. He prays that the partition may be stayed, and his possession of his share in the estate confirmed.
2. Five of the defendants opposed the suit. They urged that the Munsif's Court, in which the suit was filed, had no jurisdiction, as the suit, on a proper computation, should have been valued at more than Rs. 1,000. They also alleged that the plaintiff himself was one of the applicants for partition, and they raised other objections to the maintenance of the suit.
3. The Munsif recorded eight issues. The first related to his competence to try the suit, on the ground that, on a proper valuation, it exceeded the jurisdiction of his Court, and he decided that, as the plaint asked that a stop might be put to the partition of the entire estate, the plaintiff should have valued the suit according to the value of the entire estate. On this point I think the Munsif is wrong. I think the suit should either have been considered to be one for a declaratory decree, or for something in the nature of an injunction. The case resembles the case of Ajoodhia Lall v. Gumani Lall 2 C.L.R. 134 in which it was held, that it was unnecessary to value the suit according to the value of the entire estate.
4. The second and third issues dealt with the competence of the Civil Courts to deal with the matters raised in the suit, and the Munsif considered that Section 149 of Beng. Act VIII of 1876 (the law which has taken the place of Reg. XIX of 1814) was a bar to the suit.
5. On this point I have to notice, that the partition, having commenced in 1867, would proceed, and be completed, under the Regulation in the same manner as if the Act had not been passed: see Section 2 of the Act. It has not been shown that the provisions of the Act have been applied in accordance with Section 3.
6. Whether the Collector could have brought the estate under partition depends upon whether it is 'held in common tenancy.' If it is not, as the plaintiff alleges, then the Collector would only be competent to make an assignment of the revenue in proportion to the several portions of the land held by the different shareholders. The case quoted above is authority for this view, and also for the view that the mere fact of a private partition is not a bar to proceedings in the Revenue Court under Section 30, Reg. XIX of 1814. This, however, seems to be opposed to the case of Ajoodhya Pershad v. Kristo Dyal 15 W.R. 165; but it is, I think, correct,--and I think the plaintiff was, therefore, entitled to a declaration, in the event of his establishing his separate possession of the lands comprising his share,--that revenue should be assessed upon those lands without affecting his possession.
7. The Munsif dismissed the suit on his finding on the first three issues. The District Judge affirmed the judgment on the first issue only, holding that the suit, on a proper valuation, was beyond the Munsif's competence. He directed that the plaint should be returned for presentation to the proper Court under Section 57 of the Code of Civil Procedure. A second appeal has been filed against the decision of the Courts below, and the respondent's pleader has argued that that decision must be considered to be an order under Section 57 of the Civil Procedure Code, against which no second appeal lies. See the last words of Section 588.
8. But it is clear that whether the Munsif should have returned the plaint to be presented to the proper Court or not, he did not do so, and he is supported by the case of Shaikh Muzhur Ali v. Mussamut Basoo 8 W.R. 47 in the course he adopted, although that case was distinguished by the cases of Ram Gutty v. Goonomonee Debia 11 W.R. 177; M.S. Edoo v. Shaikh Hefazut Hossein 13 W.R. 358 and Kartick Nath Panday v. Roy Nundeput Bahadoor 23 W.R. 263. His decree dismissing the suit was a decree within the meaning of the Civil Procedure Code, Section 2. The lower Appellate Court also dismissed the suit,--that is to say, it affirmed the Munsif's judgment dismissing the suit, and directed the return of the plaint under Section 57. This is the course declared to be proper in the case of Bai Makhor v. Bulakhi Chaku I.L.R. 1 Bom. 538.
9. I have no doubt that an order under Section 57 is not appealable twice; but as this is the first appeal against the only order made under Section 57, I think we are not precluded from dealing with the case, and we are also at liberty to consider whether the rest of the Judge's decision is correct. I have stated my reasons for thinking that the claim was not undervalued, and also that the plaintiff is entitled to ask for some, though not to the exact, relief claimed. I would, therefore, reverse the decisions of the Courts below, and direct the Munsif to deal with the case in the manner laid down in the case of Ajoodhia Lall v. Gumani Lall 2 C.L.R. 134 that is to say, to adjudicate upon the plaintiff's claim to be in possession of certain lands as comprising his share in the estate, and on his succeeding in proving his claim, to declare that these lands belong to his divided share. The Revenue authorities will then deal with the partition under the law applicable to the case in accordance with the declaration which the Civil Court may make.
10. I agree to the order, of remand. I desire to add that I express no opinion upon the question, whether the Judge was right in directing under Section 87 of the Code of Civil Procedure that the plaint should be returned. But whatever view may be entertained of that question, it is clear that an appeal lies to this Court, and therefore it is not necessary to express any opinion upon that point.