1. This is an appeal by the defendant No. 1 from the judgment of the learned Subordinate Judge of the second Court at Saran.
2. The suit was brought for declaration of title to, and possession of, certain lands.
3. It appears that many years ago the Mahal Guthui was divided into three separate estates, but some lands remained joint between the three separate estates. The tauzi numbers of the three estates are now 1925, 1926 and 1927.
4. The plaintiffs claim to be the owners of tauzi No. 1926 and of 8 annas in tauzi No. 1925. The defendant No. 1 is the owner of a 5-annas 4 pies share out of 8 annas of tauzi No. 1925 and the defendants Nos. 2--5 are the owners of the remaining share in the 8 annas of tauzi No. 1925. The other defendants are the owners of tauzi No. 1927.
5. In January 1902 the defendant No. 1 applied under the provisions of the Estates Partition Act, 1897 (Act V of, 1897 B. C), for partition of his share in tauzi No. 1925. On the 30th of September 1902, the plaintiff No. 4 filed a petition of objection before the Collector on the ground that all the owners of tauzi Nos. 1926 and 1927 who held land in common with the owners of tauzi No. 1925 had not been made parties. But as the defendant No. 1 raised no objection to their being made parties, they were added by order of the Collector in the year 1903. Accordingly on the 25th of August 1903, the Collector issued the notices under Section 29 of the Act declaring the estate to be under partition. On the 29th of September 1907, the following order appears on the order-sheet of the Collector: 'The papers, viz., khasra raibandi and map prepared on the basis of survey records have already been adopted for the purposes of partition under Section 50. Checking moharrir has reported that there are common lands in the estate. Fix September 3rd for the division of common lands under Section 84.' The order sheet shows that the owners of all the three estates presented petitions to the Collector as to the method in which they desired the common lands to he divided between the estate under partition and the other two estates. On the 2nd of October 1907, the common lands were divided in the presence of the appellants for partition and some of the owners of tauzi Nos. 1925 and 1926. Notice was directed to issue on the absentee proprietors.
6. The owners of all three estates then filed objections as to the proposed method of partition. The petitions having been rejected by the Deputy Collector the plaintiffs preferred an appeal to the Collector against the rejection of their petition, alleging that the lands of the different estates between which the common lands were held were so scattered and interspersed with one another that the partition of the common lands could not proceed. The Collector dismissed the appeal on the 1st of November 1907. The plaintiffs then appealed to the Commissioner of Revenue who confirmed the order of the Collector, and next to the Board of Revenue who also dismissed their appeal. On the 25th of May 1908, the order-sheet shows that notices were directed to issue under Section 86 inviting objections, if any, by the 16th of June 1908, to the proposed partition of the common lands. No objections being received the division of the common lands was approved by the Collector under Section 86 on the 30th of October 1908.
7. On the 19th of November 1908, the divided common land was directed to be included in the papers of the parent estate. Then the Deputy Collector proceeded under Section 57 with the partition of the parent estate including the divided common land. On the 15th of July 1909, the papers we're submitted to the Collector under Section 58 and notices inviting objections were issued. On the 11th of August 1909, the plaintiffs Nos. 4 and 5 presented a petition to the Collector objecting chiefly to the proposed division of the parent estate. The only piece of land that they alleged was net in tauzi No. 1925 is plot No. 895 which they allege is in tauzi No. 1926. This plot No. 895 is not mentioned in the schedule to the plaint in this suit, so presumably the plaintiffs have no grievance in relation thereto. In reference to these objections on the 11th of September 1909 subject to some slight modifications, the partition was confirmed by the Collector.
8. The Commissioner of Revenue on the 19th of May 1910, rejected the objections put forward by the plaintiff No. 4 and on appeal to the Board of Revenue, the appeal of the plaintiff No. 4 was dismissed. The partition was finally completed on the 26th of September 1910, that is, about 8.3/4 years after the proceedings commenced. The plaintiffs filed this suit on the 26th of April 1910, and although according to the evidence of the plaintiff No. 4 the plaintiffs became aware of the fraud that they say had been practised on them as early as the 15th of July 1909, they did hot in the course of the partition proceedings set up this case and it was only after the partition papers had been submitted to the Commissioner for approval that they instituted the present suit.
9. The result is, as we are informed by the Vakil for the defendant No. 1, that he has been deprived of a substantial portion of the property allotted to him in the partition and the plaintiffs have been permitted to keep all the property allotted to them and to recover the property mentioned in the schedules in the plaint. But the plaintiffs got the property allotted to them in the partition on the footing that the lands now sued for formed a portion of the estate under partition and if they had not been so treated the allotment to the plaintiffs in the partition would have been much smaller.
10.The partition proceedings were based upon the Record of Rights made under the provisions of the Bengal Tenancy Act as provided by the Estates Partition Act.
11. The plaintiffs' case is that the defendant No. 1 represented them at the survey and fraudulently represented what lands were in the different tauzis for his own benefit. The documentary evidence shows that the plaintiffs took some part in the settlement proceedings and I doubt this story about the defendant No. 1 representing the plaintiffs at the survey. The foundation of the plaintiffs' case is the thak maps made at the Revenue Survey in 1854. But I can see no reason to think that the thak maps are more reliable than the Record of Rights. True it is that some few tenants have given evidence that the plaintiffs are in possession. The evidence on the defendants' side is that the plaintiffs are colluding with the tenants. It would not, I think, be safe to rely on this evidence of possession alone. Section 119 of the Estates Partition Act enacts that no order made under Sections 20 and 30, Chapters V, VII, VIII and IX (excepting Section 81), Chapter X, Section 107 or Section 117 shall be liable to be contested or set aside by suit in any Court: Provided, inter alia, that any person who is aggrieved by an order made under Section 88 may bring a suit in a Court of competent jurisdiction to modify or set aside such order.
12. There may be some doubt as to what the precise meaning of this section is. The decisions of this Court are that the orders made by the Revenue Authorities are only conclusive so far as they relate to the Government revenue and the details of the partition. This seems to me to be a Somewhat narrow view to take of the wording of the section. The learned Subordinate Judge has held that the present suit comes within the proviso of a suit by a person who is aggrieved by an order made under Section 88. But there never was any order of the Collector under Section 88. No dispute or doubt was found to exist as to whether any land formed a portion of the parent estate and no order was made by the Collector directing the partition to proceed under Section 88(b). That being so, the plaintiffs are not persons aggrieved by an order made under Section 88 and cannot sue to set aside or modify an order that never was made. The provisions of Section 89 as to compensation only apply to cases where the Collector has made an order under Section 88(6).
13. The result I have arrived at is that whatever rights the plaintiffs may have, they are not entitled to keep the lands allotted to them on the footing that the lands now sued for formed a portion of the estate under partition and bring an action to recover possession of the lands or a portion thereof awarded to the defendants. The result of allowing such a suit might be to work grave in justice to the defendants or some of them. It was stated before us that the effect of the decree of the lower Court, although it Bad not affected the defendants (other than the defendant No. 1) very much, had deprived the defendant No. 1 of a substantial portion of the lands allotted him by the partition by the Collector. I am also inclined to hold that the plaintiffs, having according to their own story known about their rights since the 15th of July 1909 and never having put them forward in the partition proceedings, ought not now to be permitted to raise them so as to upset the partition proceedings to which they were parties. I am, therefore, unable to agree with the result arrived at by the learned Judge in the Court below.
14. The present appeal must, therefore, be allowed and the suit dismissed. The plaintiffs must pay to the defendant No. 1 his costs both in this Court and in the Court below.
15. I agree. In the proceedings under the Estates Partition Act the plaintiffs never took the objection that more land had been allotted to the estate under partition than that estate was entitled to. That allotment was made under Section 84 and confirmed by the Collector under Section 86. Objections were made to the mode in which the common lands were divided, but not to the quantity allotted to the estate under partition. These objections were disposed of before the allotment was confirmed under Section 86 and the order confirming the allotment was subsequently and separately made. The plaintiffs had another opportunity at that stage to object to the quantity of land allotted to the estate under partition. Notice was issued inviting objections before the order of confirmation was made, and the order was not made until the notices were returned after being fully served. When the allotment was confirmed the partition of the whole was made under Section 57. The next step was to submit the partition so made for the sanction of the Collector under Section 58. The plaintiffs then had another opportunity to raise the questions raised in this suit. According to their own case they knew then of the fraud said to have been practised upon them in the settlement proceedings. But they did not avail themselves of that opportunity. The petition which they filed, dated the 11th August 1909, gives no hint of the case made in this suit. The Collector made some small alterations suggested by that petition and subject to those alterations he approved the partition. It is clear that throughout these proceedings no question was raised under Section 88 and no order was passed under that section. Turning then to Section 119, the plaintiffs cannot well claim to be persons 'aggrieved by an order made under Section 88.' They have no right of suit, therefore, on that ground. It is suggested that they have a right of suit under proviso (i). But they are not persons 'claiming a greater interest in lands which were held in common tenancy between two or more estates' than has been allotted to them by an order under Section 84 or Section 86. There is no dispute as to their interest in the allotted lands. They are the owners of estate No. 1926 and of eight annas of estate No. 1925. The dispute is as to what particular lands were held in common tenancy, not as to the plaintiffs' interest in those lands when once the lands were determined. In view of the course taken by the plaintiffs in the partition proceedings and of the provisions of Section 119, I agree that the plaintiffs cannot now raise the question what lands were held in common tenancy.
16. Apart from that question it seems to me more than doubtful whether the plaintiffs ought to succeed on the merits. I do not accept the allegation that fraud was practised upon them by the defendant No. 1 in connection with the preparation of the Record of Rights. The proceedings taken for that purpose lasted from 1895 till the 23rd January 1899, when the Record of Rights was finally published. I agree that the evidence adduced by the plaintiffs in the 'suit is not sufficient to rebut the presumption of correctness which attaches to that record under Section 103B of the Tenancy Act.
17. I concur in the order which has been proposed.