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Ajoodhya Persad Vs. Collector of Durbhungah - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1883)ILR9Cal419
AppellantAjoodhya Persad
RespondentCollector of Durbhungah
Excerpt:
partition between owners of separate shares in permanently settled estate - effect of, as against government. - .....suit was brought, the plaintiff had made an application to the collector for the partition of the lands of mouzah mohamedpur under the butwara act; but the collector refused the application on the ground that the said act was not applicable to the partition of mouzah which is held jointly by the proprietors of two separate estates.3. the collector of durbhungah has also been made a party in this case.4. the suit was defended by the collector on behalf of government, and by the second party defendant.5. the defendant, second party, stated in his written statement that the lands of the plaintiff's estate were separate from the lands of the estate no. 223.6. the collector rested his defence simply upon the ground that the lands of the two estates could not be partitioned under the.....
Judgment:

Mitter, ( Offg.) C.J.

1. It appears that a fourteen-anna eight-gunda share of a mouzah named Mohamedpur was settled permanently in the year 1226 Fasli (1819). The number of this share of the mouzah in the Collector's Towji is 223. The defendants, second and third parties, are now the owners of this estate. The remaining one-anna twelve-gunda share of the mouzah in question was permanently settled in the year 1861 with Fakir Misser and others. The number of this latter estate in the Collector's Towji is 4,945. In the year 1873, the estate No. 4945 was sold by auction for arrears of Government revenue, and was purchased by the plaintiff.

2. On the 28th of July 1879 the plaintiff brought this suit for obtaining a declaration that he is entitled to have the one-anna twelve-gunda share of this mouzah separated from the fourteen-anna eight-gunda share by metes and bounds, and also for a decree directing a partition of the whole mouzah into two parts, so that the lands of his estate may be defined as separate and distinct from the estate No. 223, belonging to the second and third party defendants. It appears that before this suit was brought, the plaintiff had made an application to the Collector for the partition of the lands of Mouzah Mohamedpur under the Butwara Act; but the Collector refused the application on the ground that the said Act was not applicable to the partition of mouzah which is held jointly by the proprietors of two separate estates.

3. The Collector of Durbhungah has also been made a party in this case.

4. The suit was defended by the Collector on behalf of Government, and by the second party defendant.

5. The defendant, second party, stated in his written statement that the lands of the plaintiff's estate were separate from the lands of the estate No. 223.

6. The Collector rested his defence simply upon the ground that the lands of the two estates could not be partitioned under the provisions of the Butwara Law, viz., Beng. Act VIII of 1876.

7. The Court of First Instance made a decree in favour of the plaintiff, directing that the one-anna twelve-gunda share, belonging to the plaintiff, should be separated from the lands of the estate No. 223. The decree also contained a provision to the effect that the Collector of Durbhungah should be requested to carry out the partition, and that if he refused to do so, the partition should be effected by the Civil Court Ameen in execution of that decree.

8.Against that decree the Collector of Durbhungah, on behalf of the Government of Bengal, appealed, and the District Judge has dismissed the suit, both against the Government as well as the owners of the estate No. 223, upon the ground that the lands of Mouzah Mohamedpur cannot be partitioned under the provisions of Beng. Act VIII of 1876.

9. Against the decision of the District Judge, this appeal has been preferred by the plaintiff, and the, Collector of Durbhungah, representing the Government of Bengal, is the only respondent who has appeared to oppose the appeal.

10. We are of opinion that, so far as the plaintiff, the owner of the estate No. 4945, on the one hand, and the defendants, second and third parties, on the other hand, are concerned, there should be a decree for the partition of Mouzah Mohamedpur. It has been found that this mouzah is held by the owners of these two estates in the proportion of one-anna twelve-gundas, and fourteen-annas eight-gundas respectively. It is an ordinary incident of a property held jointly by two or more persons, that there should be a partition by metes and bounds, whenever one or more of the owners desire it. When all the joint owners of a property do not agree in holding it jointly, constant strifes and quarrels are likely to arise. It would be against good morals to compel joint owners to hold property jointly against their will. Therefore, so far as the plaintiff, on the one hand, and the defendants, second and third parties, on the other, are concerned, the District Judge was not right in dismissing the suit for a partition.

11. The only question upon which we entertain some doubt is, whether the partition should be so effected as to be binding upon the Government. Whatever may be the rights of joint owners inter se, as to the right of partition, we fail to see any tangible ground for laying down that such a right also exists in favour of one of two grantees of a joint estate as against the grantor.

12. Under the terms of the grant, the grantees have a right to enjoy the property in the estate in which it is granted. They cannot, against the will of the grantor, enforce a partition as against him. It Seems to us, therefore, that unless the Government of Bengal, represented by the Collector of Durbhungah in this case, be willing to have a partition of this mouzah effected, the only decree that can be passed in the case is a decree for partition to be binding between the plaintiff and the second and third party defendants.

13. Having regard to the facts stated in the plaint and established most clearly by the evidence, it seems to us that it will be for the interest of the Government to consent to a partition being made of the mouzah. The estate No. 4945 was, as already stated, permanently settled in the year 1861, and it was within twelve years of that time brought to sale for arrears of Government revenue. It is alleged in the plaint, and proved by the plaintiff, that owing to the lands of this estate being joint with the lands of the estate No. 223, he has not been able to collect even such an amount of rent as would be sufficient to discharge the Government dues. In this state of things it seems to us desirable that a partition should be effected of this mouzah. A partition which may be binding not only upon the present owners of the two estates, but also upon the Government and future auction-purchasers for arrears of Government revenue.

14. But in our opinion we cannot decree this suit, and direct a partition of the mouzah to be made, so that it may bind the Government, unless the Government withdraw their opposition to the suit and consent to the partition. It is true that we can award a decree in favour of the plaintiff for a partition of the mouzah which will be binding upon the defendants, second and third parties. But it is desirable, if there is any chance of the plaintiff obtaining the sanction of the Government, that the decree for partition should be made with the consent of the Government, so that it may be binding, in future, upon all the parties to this suit.

15. The plaintiff, as already stated, made an application to the Collector under the Butwara Act, and the Collector refused to effect the partition, be cause the Act, in his opinion, was not applicable to the facts of this case. We entirely agree in that view of the law; and probably, therefore, the Collector would not be competent, without the sanction of the higher executive authorities, to give his consent, on behalf of Government, to a partition of this mouzah, so as to bind this Government. We, therefore, allow the plaintiff six months' time from this date to take proper steps for obtaining the consent of Government to a partition of this mouzah. On the expiration of that time, the case will be brought up again for final disposal. We reserve the question of costs.


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