1. The plaint in this suit out of which this appeal has arisen was headed as under the provisions of the Civil Procedure Code, a petition praying for relief by way of a declaration cancelling the order of the Revenue Court that a revenue paying estate is not liable to partition.
2. The plaintiff is the owner of an eight annas share, and the defendants are the owners of the other eight annas share of an estate, bearing Towji No. 41 of the Noakhali Collectorate and named Kharija Taluk Gour Kishore Roy. The plaintiff applied to the Collector for partition of the estate under the Estates Partition Act (5 of 1897). To this the defendants objected on the ground of Section 7 of the Act, namely, that the lands of the estate had already been divided by private arrangement formally made and agreed to by all the proprietors, and each proprietor has, in pursuance of such arrangement, taken possession of separate lands to be held in severalty as representing his interest in the estate. The Collector and the Commissioner overruled the objection, but the Board of Revenue rejected the plaintiff's prayer for partition. The plaintiff then instituted the present suit with the following prayers: (a) For a declaration that the estate is liable to be partitioned, (b) that a decree may be passed against the defendants for the costs and (c) that any other relief may be granted which the plaintiff may be entitled to.
3. The Subordinate Judge has decreed the suit declaring that the estate is liable to partition under Act 5 of 1897. The defendants have then, preferred this appeal. The estate admittedly consists of the following: (a) Two groups of tenancies, in respect of one group of which the plaintiff has granted mirashi ijara potta to the defendants, and in respect of the other the defendants have granted mirashi ijara potta to the plaintiff, (b) an oshat taluk, (c) certain nishkar and chakran lands and (d) some khas lands.
4. The Board of Revenue found as follows: As regards (a) they held that the proprietors were in separata possession of parcels in accordance with a private partition already made, and so if a partition under the Act was to be made Section 77 of the Act would apply and therefore the partition would have to conform to the private partition, and it is only the private partition that would have to be confirmed. They held that as regards (b) and the chakran lands of (c) the partition would have to be regulated by Section 83, so that the whole might be assigned to one or other of the proprietors and they were apparently impressed with the agreement between the; parties under which these items were to remain joint. And as regards the nishkar lands of (c) they held that, in the partition, Section 82 would apply and the lands would have to be kept joint. On these grounds the Board held that the partition would serve no useful purpose except in giving the shares separate towji numbers. They held therefore that 'it would be an unjustifiable waste of labour to go on with the partition' and they accordingly directed that no partition should be made unless all the proprietors applied Under Section 7.
5. The Subordinate Judge was of opinion that what had taken place between the parties was not a partition contemplated by Section 7 of the Act, because 'lands' in Section 7 of the Act meant all the lands of the estate, and here admittedly all the lands of the estate had not been partitioned privately; that the agreement as regards the Oshat taluk and the chakran lands was only a temporary arrangement, which was not intended to operate for all time; and that, as the right to claim partition of an estate by a proprietor is an ordinary incident of proprietorship, the plaintiff was entitled to have the estate partitioned. He was also of opinion that in the state of feelings between the parties it was right that the responsibility for payment of revenue should be divided. He has held that Section 7 is no bar to a partition, and also that the provisions of Section 82 and Section 83 merely lay down the methods to be adopted in respect of lands coming within those sections and cannot operate as a bar to partition. In this view the Subordinate Judge has made a declaration that the taluk is liable to partition under Act 5 of 1897.
6. Now, Section 15, Civil P.C., of 1859 was in the same terms as Section 50, Chancery Procedure Act, 1852 (15 and 16 Vict. C. 86). As to the latter section it was held by Courts in England that it gave a right of obtaining a declaration of title only in those cases where the Court could have granted relief if relief had been prayed for: see Rooke v. Lord Kensington (1856) 2 K and J 753 and Lady Langdale v. Briggs (1856) 8 De GM and G 391.
7. In Nilmony Singh v. Kally Churn (1875) 2 IA 83 (PC) and Kathama Natchier v. Dora Singh (1875) 2 IA 169 (PC), their Lordships of the Judicial Committee expressed the view that Section 15 of the Code of 1859 must be governed by the same principles as those upon which the Court of Chancery proceeded in reference to the Chancery Procedure Act, Section 50. When the Code of 1859 was repealed by the Code of 1877, the provision as to declaratory decrees was transferred to the Specific Belief Act 1 of 1877, and the terms of the section were altered: in one direction they were made more comprehensive and in another direction more limited: see Deokali Koer v. Kedar Nath (1912) 39 Cal 704. It has been sometimes thought relying upon the decision of the Judicial Committee in the case of Fisher v. Secretary of State (1899) 22 Mad 270, that a declaratory decree can be made independently of the provisions of Section 42, Specific Relief Act. In that case what happened was this: By the effect of Sections 5 and 6, of the Madras Act 1 of 1876, the decision of the Collector in a case within his jurisdiction, whether for or against separate registration of a portion alienated from a zamindari, when once duly sanctioned as provided by the Act, could only be questioned in a Civil Court. And Under Sections 7 and 8 of the Act the apportionment might be appealed from the Collector to the Board of Revenue, and power was reserved to the Government in Council to order readjustment of separate assessment if fraud or material error appeared. The Government however had cancelled an order made and sanctioned under the first mentioned sections. The plaintiffs in the suit prayed for declaration that the order of the Government directing the cancellation was beyond the powers of the Government to make, and was of no legal effect. Lord Macnaghten in delivering the judgment of their Lordships observed:
Now, in the first place it is at least open to doubt whether the present suit is within the purview of Section 42, Specific Relief Act. There can be no doubt as to the origin and purpose of that section. It was intended to introduce the provisions of Section 50, Chancery Procedure Act, 1882, (15 and 16 Vict c. 86) as interpreted by judicial decisions. Before the Act of 1852 it was not the practice of the Court in ordinary suits to make a declaration of right except as introductory to the relief which it proceeded to administer. But the present suit is one to which no objection could have been taken before the Act of 1852. It is in substance a suit to have the true construction of a statute declared and to have an act done in contravention of the statute rightly understood, pronounced void and of no effect. This is not the sort of declaratory decree which the tamers of the Act had in their mind.
8. If these observations meant that a decree, merely declaratory, can be made independently of Section 42, Specific Relief Act, as has been understood in such cases as Ram Chandra v. Secretary of State AIR 1916 Mad 1061 and Bam Krishna v. Narayana AIR 1915 Mad 584, the plaintiff gains very little; because in the first place the declaration which he has asked for and obtained is not a declaration of that character but a declaration that the estate is liable to partition ; and secondly because the order of the Board of Revenue, against which the plaintiff's attack is directed, is not an order passed in contravention of the statute but intra vires the statute, being in exercise of the appellate powers conferred on the Board by Section 113 of the Act. On the other hand Sir Lawrence Jenkins, in delivering the judgment of the Judicial Committee in Sheoparsan Singh v. Ram Nandan Prasad Narayan Singh AIR 1916 PC 78, has made it perfectly clear that so far at any rate as Courts in the mofussil are concerned their powers to make a declaration without more is derived from Section 42, Specific Belief Act. It may be conceded that cases may be imagined in which an act of an authority being in contravention of the statute it is enough for a party to have it pronounced void and of no effect, upon a true construction thereof. Such was the case in Fisher v. Secretary of State (1899) 22 Mad 270. Lord Macnaghten further observed in that case:
But even assuming that the Specific Relief Act applies to such a suit as this, what is the-result? What further relief can be required? If the so-called cancellation is pronounced void the order of the Government falls to the ground, and the decision of the Collector stands good and operative as from the date on which it was made.
9. From this point of view, if the plain, tiff could show that the Board has acted without jurisdiction, and its order was ultra vires the statute and has asked for a declaration of that character, omission of a prayer for a conseqential relief would not per se have stood in the way of his getting such a declaration. But as has already been pointed out, the plaintiff, in the first place, has not asked for such a declaration, and secondly the order of the Board of Revenue was not made without jurisdiction. The declaration which the plaintiff asked for, and has obtained in this case, as already stated, is a declaration that the estate is liable to partition under the Estates Partition Act 5 of 1897. Such a declaration, in our judgment, is not permissible because his right to partition, as a right, has never been negatived by anybody. And as a declaration which may be of assistance to him in getting a partition of the estate from the civil Court, a prayer for it would obviously be not maintainable for he has not asked for consequential relief in the shape of a prayer for partition. It is contended on behalf of the plaintiff as, respondent that this declaration will enable him to get a partition from the Collector. We cannot see how that is possible, so long as the order of the Board of Revenue stands as it must stand, in the present case. Rightly or wrongly the Board of Revenue has refused to undertake a partition of the estate under the Estates Partition Act and that order is binding on all subordinate revenue authorities.
10. It has however been argued before us that if the plaintiff obtains such a declaration from the civil Court, and armed with it approaches the revenue authorities, those authorities would be bound to rescind the order declining to make the partition, and would feel it necessary to proceed with the partition. Reference in this connexion has been made to Section 119 of the Act which specifies certain orders under the Act as being not liable to be contested or set aside by the civil Court, and it has been urged that this specific exclusion sufficiently indicates that all other orders under the Act may be so contested or set aside. And reliance has also been placed upon certain decisions which will be presently adverted to. It may be conceded at once that, broadly speaking, the provisions of the Estates Partition Act read together have purported to exclude the jurisdiction of civil Courts from eases which involve questions of land revenue, questions of costs, and questions which require the exercise of discretion on the part of the revenue authorities as regards the mode of partition and its details, and that in matters involving questions of title the jurisdiction of civil Courts is not ousted at all.
11. This however will not help the appellant, because while the question whether the estate is liable to partition under the Estates Partition Act involves a question of title, the question whether the revenue authorities should or should not enforce that right by undertaking such a partition cannot be said to be a question of title. In matters arising under the Estates Partition Act the jurisdiction of the civil Courts and of the revenue authorities are in many instances concurrent, and a conflict of jurisdiction between the two should manifestly be avoided, and the authorities must necessarily have to act in such a way that the jurisdiction of each should be stayed or restricted by action already taken by the other. A right to have a partition from the Collectorate is not an absolute right. The Collector may, for any reason which appears to him good and sufficient, reject an application for partition (vide Section 22). The Commissioner has powers to put an end to proceedings taken to effect a partition or separation after an application for partition has been admitted: vide Section 112(1)(a). On the other hand if by ordering a partition or effecting it the revenue authorities affect anybody's right or title, that person has his remedy in the civil Court. Similarly again, if the civil Court makes an order or decree for partition, that has to be taken note of and carried out by the revenue authorities provided of course that matters which are the exclusive concern of the revenue authorities are not affected. But it is not possible to hold that after the Board of Revenue, no matter whether their view of the facts or of the law was right or wrong, held that it would be an unjustifiable waste of labour to go on with the partition, a declaration by the civil Court that the estate is liable to partition under the Estates Partition Act would oblige them to alter their view.
12. Tajammul Ali v. Musood Ali (1910) 5 IC 776 and Qamar Hasan v. Abas Ali AIR 1924 Pat 594 are cases in which the Collector overruling an objection to the effect that there was a previous partition Under Section 7 of the Act had ordered a partition and such order had been confirmed by the superior revenue authorities and thereafter the orders of the revenue authorities were challenged in the civil Courts. What is relied upon in these eases is the fact that the suits were maintained. The other two cases relied upon are the cases of Rupan Rai v. Subh Karan Rai AIR 1919 All 140 and Asman Singh v. Tulsi Singh AIR 1917 Pat 637. Before dealing with these cases it may be pointed out that there is a divergence of judicial opinion on the question of the power of the civil Court with reference to partition of a revenue-paying estate. This has been pointed out by Chamier, C.J., in the second of the cases last mentioned in these words:
According to the decision of the Full Bench in Jogodishury Debea v Kailash Chandra (1897)24 Cal 725, which has been followed in many cases in the Calcutta High Court, Section 265, Civil PC. 1882, did not, and Section 54 of the present Code does not, prevent a civil Court from decreeing partition of a revenue-paying estate where separate allotment of the revenue is not asked for.
13. In the case of Asman Singh v. Tulsi Singh AIR 1917 Pat 637 the plaintiffs asked for a declaration as to the extent of their shares in the family property and such a declaration was given notwithstanding that there was no prayer for relief in the shape of partition. It was contended that the plaintiff could have claimed a decree for partition but had not done so and so the prayer for a mere declaration of shares should be refused. Chamier, C.J., observed:
On the strength of these decisions (meaning the decision of the Calcutta High Court in the case of Jogodishury Debea v. Kailash Chandra Lahiry (1897)24 Cal 725 and other cases which are to the same effect, it is contended that the plaintiffs in the present case might have claimed a decree for partition of the family property. It appears however that the bulk of the family property consists of undivided shares in villages in which there is a large number of sharers who have no connection with the parties to the present case, and partition by metes and bounds between the parties to the present case cannot be made without a general partition of all the villages. It is obvious that it would be impossible to effect a partition in this case between all the sharers in the different villages. In similar circumstances in the United Provinces and other provinces where the Calcutta decisions are not approved a decree would be made determining the shares of the parties to the case and, if necessary, putting them formally into possession of those shares, and they would be left to obtain a partition of each village or mahal separately in the revenue Courts as and when they pleased. In the present suit as constituted it is not suggested that the plaintiffs have been dispossessed in any way and nothing more can be done than to determine the shares of the parties in the family property and declare that the plaintiffs are entitled to enjoy an eight annas share therein. The plaintiffs unequivocally intimated to their co-sharers that they desired to sever themselves from the joint family and are therefore entitled to enjoy their shares separately: Girija Bai v. Sadashiv Dhundiraj AIR 1916 PC 104. I am not prepared to hold that the maintenance of the present claim for a declaration of the shares of the parties in the family property is barred by Section 42, Specific Relief Act.
14. In the case of Rufan Rai v. Subh Karan Rai AIR 1919 All 140, it was held that where the whole of the property which is the subject matter of a suit for partition consists of landed property assessed to revenue, the suit would be governed by the provisions of Order 20, Rule 18, Clause (1) and Section 54, Civil P.C, and all that the civil Court can do is to give a decree declaring the amount of the plaintiff's share as against the defendant and leaving the plaintiff to take any steps he may think proper for the actual partition of his share in the civil Court.
15. In our judgment these cases do not assist the plaintiff in the present case. The declaration concerned in the present case is not a declaration as regards the shares of the parties, armed with which the plaintiff can go to the revenue authorities and ask for a partition under the Estates Partition Act, whichever of the two divergent views may be taken of the powers of the civil Court with regard to partition of a revenue-paying estate. It is a declaration that the estate is liable to partition, a position which is not denied by the revenue authorities and it is only the expediency of the partition that is doubted by them. The civil Court cannot compel the revenue authorities to undertake the partition. And in the events that have happened the declaration which the plaintiff has obtained will be of no use to him in getting a partition under the Act from the Collectorate.
16. The result is that, in our opinion, the suit as framed was not maintainable. The appeal is allowed, and the decree made by the Court below being set aside it is ordered that the suit be dismissed with costs, leaving it open to the plaintiff to institute such other suit, if any, as he may be advised. No order for costs in this appeal.
17. I concur in the judgment just delivered by my learned brother.
18. This is an appeal from the judgment and decree of the learned Subordinate Judge, Noakhali, decreeing a suit for a declaration that a certain Kharija Taluk bearing Touzi No. 41 in the Noakhali Collectorate is liable to partition under the Estates Partition Act 5 of 1897. The facts which gave rise to the suit in question are as follows: It appears that the plaintiff-respondent and the defendants-appellants are each owner of 8 annas share of the Kharija Taluk. The plaintiff having applied to the Collector for partition of the Taluk under Act 5 of 1897 was successful up to the Commissioner but was unsuccessful in an appeal before the Board of Revenue preferred by the defendants, the Board having held that the partition would serve no useful purpose except in giving the share separate Touzi numbers and that this result could be better achieved if all the co-sharers jointly applied for partition Under Section 7, Sub-section (1), Clause (a), Estates Partition Act. On this the plaintiff instituted the present declaratory suit out of which this appeal arises. The plaintiff having succeeded in the suit the defendants have appealed. The Kharija Taluk comprises of certain lands and tenancies, namely (1) Oshat Taluk Pitambar Adhikari; (2) certain Nishkar, Chakran and Khash lands from which the proprietors derive no rent; and (3) two groups of tenancies in respect of which the parties have executed Mirashi Ijara Pottas in favour of each other entitling them each to sue for 16 annas rent in respept of the group of tenancies specified in the respective pattas. The rent of the Oshat Taluk is fixed in perpetuity, the proprietors deriving rent in proportion to their respective shares. The proprietors derive no rent, as we have already seen, from the Niskar, Chakran and Khash lands which have all been kept in Ejmali. In view of the private partition of the groups of tenancies in respect of which there has been a mutual execution of Ijara Pattas the only effect of a partition under the Estates Partition Act would be a confirmation of the private partition and nothing else. The short point for consideration therefore is whether the aid of Section 42, Specific Relief Act, could be invoked in a case of this description with the object of nullifying the effect of the decision of the Board of Revenue that no partition should be made unless all the proprietors conjointly act under Section 7, Estates Partition Act. There is no prayer for a consequential relief, and we are afraid that there could not be any such prayer in the suit in the very nature of things. Under Section 42, Specific Relief Act a claim for a declaratory decree is not a matter of right but rests with the judicial discretion of the Court. Having regard to the circumstances disclosed in the case we are not prepared to differ from the finding of the Board that Section 7, Estates Partition Act, should apply. Our attention has been drawn by the learned advocate for the respondents to Section 119, Estates Partition Act, and to the rulings reported in Rupan Rai v. Suba Karan Rai AIR 1919 All 140 and Asman Singh v. Tulsi Singh AIR 1917 Pat 637. None of the authorities cited has any application to this case; and as for the ruling reported in Asman Singh v. Tulsi Singh AIR 1917 Pat 637 it is, I am afraid, an authority for the proposition that the Calcutta High Court has uniformly taken a view on the subject which is contrary to the view sought to be enunciated by the learned advocate for the respondents [see Asman Singh v. Tulsi Singh AIR 1917 Pat 637].
19. Speaking generally, although the decision of a civil Court as to title or possession is always binding on the Revenue Court a conflict of jurisdiction between the two Courts should always be avoided. The appeal therefore must be decreed, and the decree of the Court below must be set aside, and the suit is dismissed with costs No order for costs in this appeal.