1. The parties to this litigation are the co-owners of Taluk Krishna Gopal Missir. One of them, the defendant No. 1, applied to the Collector, under the provisions of Bengal Act V of 1897, the Estates Partition Act, to have a partition effected of the taluk, and obtained an order from the Collector elated the 15th April 1905, declaring the estate to be under partition under Section 29 of the Act. This order was confirmed on appeal by the Divisional Commissioner. The objection raised before the Revenue Officers was that a private partition to the taluk had already been made, and the suit giving rise to this appeal is founded on the same objection. The plaintiffs seek to have a declaration that their lands shall riot be partitioned or, in the alternative, that they be allotted the lands of which they are in possession in accordance with the private partition which, they assert, has been in operation from time immemorial.
2. The Subordinate Judge of Tipperah has decreed the suit in the following terms, 'It is hereby declared that the Taluk Krishna Gopal Missir, bearing No. 31 of the Tipperah Collector's Revenue Roll, is not fit to be partitioned, and that defendant No. 1 is estopped, from getting it partitioned by the Collector.'
3. In appeal, four contentions have been advanced on behalf of the defendants Nos. 1 and 6: first, that there has never been any complete private partition of the taluk within the meaning of Section 7 of the Estates Partition Act; secondly, that even if any complete private partition was, at one time, effected, there was joint ownership in the taluk at the time when partition was applied for to the Collector, that being the time contemplated by Section 7 of the Act; thirdly, that the decree of the Subordinate Judge precludes all future partition; and fourthly, that the Civil Court has no jurisdiction to prohibit, absolutely, a partition to be made by the Revenue Authorities.
4. Section 7 of the Estates Partition Act, V of 1897, is as follows: '(1) where the lands of an estate have 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 estates, no partition of the estate shall be made under this Act except--(a) on the joint application of all the proprietors, or (b) in pursuance of a decree or order of a Civil Court.'
5. The facts are scarcely in dispute. The question rather, is what legal effect must be given to the arrangements in existence between the parties? The taluk consists of 39 mouzahs. It was, many years ago, divided into two blocks, one of 14 and the other of 25 mouzahs corresponding with a 7 annas 5 gundas and an 8 annas 15 gundas share, respectively. The former block eventually represented the 6 annas 9 gundas, 3 karas, 1 krants share, while the second block represented the 7 annas 16 gundas, 3 karas, krant share. These two shares aggregate 14 annas 6 gundas odd which may be styled the principal share. They do not total sixteen annas. The remaining share, 1 anna, 13 gundas, 1 kara, 1 krant, was the subject of litigation after the original division had been made into two shares namely, 7 annas 5 gundas and 8 annas 15 gundas, and that remaining share was decreed to two co-owners named Elahdad and Karimdad Khans, whose joint undivided right was established in each mouzah of each of the two blocks to the extent of 1 anna, 13 gundas, 1 hara 1 krant, which we may conveniently call the ijmali share.
6. The defendant No. 1 owns a share in the second block, and the defendant No. 6 owns a share in the ijmali share in each block, as also, a share in the second block. The plaintiffs own the first block, less a small fraction, together with share in the second block. There are numerous other co-owners. Such is the present position of affairs and it certainly seems to indicate that there was never any complete private partition either originally, or at any subsequent times. But the plaintiffs allege that the different co-owners are in possession of lands corresponding with their respective interest. This is a proposition to which we cannot give our unqualified assent. There has been some arrangement of lands, as the evidence, both oral and documentary, shows, but there has not been complete partition by metes and bounds with that degree of formality and concurrence which Section 7 of the Estates Partition Act demands. The existence of the ijmali share virtually defeats the plaintiffs' suit. When, more than half a century ago, the main division into the two blocks, of 14 and 25 mouzahs, was made, the ijmali share was omitted, certain co-owners ignored: and, when Elahdad and Karimdad Khans obtained their decree they were not given separate mouzahs, or lands corresponding with their 1 anna, 13 gundas odd share: instead of re-opening the question of division into two blocks, the co-owners preserved the arrangement, and the result was that an ijmali share remained in each mouzah. Thus in its very inception, the private arrangement was incomplete, and it was based on a claim which the Courts afterwards refused to sanction. Moreover, the possibility of a formal partition was contemplated so long ago as the year 1881. In Exhibit C, a deed of partition executed by certain co-owners, dated 17th Bysack 1283, after recitals of the various shares resulting on partition, it was stipulated that 'if any partition is made of the said mahal by the Collectorate in future, the present Dihi partition shall be no bar to the same.' Again, in dealing with the taluk, the co-owners specified shares and not lands corresponding with shares. Thus, in Exhibit No. 65, a kabala, dated the 13th Falgun 1257, after recitals as to the history of the principal and ijmali shares, the vendors sold Kismat Bhuisar as per 1 guuda, 3 khnras, 2 krants, 2 dhuls share. There are also, indications, both in the plaint and the evidence of the witnesses, that the o owners were in joint possession of the land of the various mouzahs comprised within the mahal. In support of this view, we may refer to the 9th paragraph of the plaint and to the evidence of Anand Chandra Sarma Chowdhury, the chief naib of the plaintiff.
7. In these circumstances, the hebanami, upon which great stress has been laid for the plaintiffs, is not a conclusive piece of evidence in this controversy. The hebanama, (Exhibit No. 66), executed by the father of defendant No. 1, dated the 2nd Magh 1280, merely conveyed the principal share (14 annas 6 gundas odd), bearing a certain, revenue, in Kismat Bitghur and Mouzah Baraibari comprised in Kharija Taluk Krishna Gopal Missir No. 1301. Here, also, we have a dealing with a share, and not with lands separated within the meaning of Section 7 of the Estates Partition Act.
8. The applications for the opening of separate accounts, under Act XI of 1859, were under both Section 10 and Section 11 of the Act. In one of these petitions (Exhibit No. 10), dated 27th April 1881, it was stated by the predecessor of the plaintiff No. 1 as follows: 'Although no partition has yet been made of the mahal according to law, still the petitioner has been in separate possession of his 6 annas 8 gundas share of the entire taluk.' In the petition (Exhibit B), dated the 29th March 1881, it was stated by the father of defendant No. 1, in paragraph 2, that 'the lands of the said taluk were not partitioned according to law and there is no sufficient evidence about any partition by demarcation, nor did the applicant adduce the same.' Similar indications of the joint character of the interests held in Taluk Krishna Gopal Missir appear in the papers relating to the Land Registration proceedings.
9. No doubt, a great majority of the co-owners are willing to leave matters in stains quo, but their acquiescence or indifference cannot take away the right of a single co-owner to demand partition of his own share in accordance' with law. Section 7 of the Estates Partition Act evidently contemplates a formal division of the lands of an estate, by metes and bounds, agreed to by all the co-owners and a possession of separate lands held in severalty by each such co-owner. It is obvious, on the facts of this case, that there was no such private arrangement, and that the defendants Nos. 1 and 6 are entitled to proceed under the Estates Partition Act.
10. We, therefore, allow the first contention urged on behalf of the defendants-appellants.
11. The second and other contentions raise questions which it is really unnecessary to decide in the present case, but as arguments have been adduced to us on those points we notice each of them.
12. The learned Vakil for the defendants argues that even if, at one time, any complete private partition was effected, there was joint ownership in the taluk at the time when the partition was applied for to the Collector, that being the time contemplated by Section 7 of the Act. But, it appears to us that if the lands of an estate have been divided at any time in the manner mentioned in Section 7, and such division is subsisting at the time of the application to the Collector, in spite of any further sub-division of the parcels no partition of the estate can be made under the Act except on a joint application of all the proprietors or in pursuance of a decree or order of a Civil Court, and this too, even in the case where, after such private division, each of the separate parcels becomes, or some of them become, by reason of transfer or succession, or otherwise, jointly vested in more proprietors than one.
13. This is borne out by the provisions of Section 76, Sub-section 1(a) of the Act, which clearly contemplates, among others, the case of two or more proprietors being jointly interested in a separate parcel formed by a private division, either at or after such, division, in order that a separate estate may be jointly assigned, to them on partition by the Collector.
14. The third argument on behalf of the defendants appellants is that the decree of the Subordinate Judge precludes all future partition. This appears to be correct as the Subordinate Judge has declared that the taluk Krishna Gopal Missir is not fit to be partitioned, though, in another part of the judgment of the lower Court, it is stated that the 1 anna, 13 gundas, 1 kara, 1 krant sharers may ask for partition. That being so, the judgment of the Subordinate Judge is inconsistent. If the ijmali sharers may ask for a partition, they may also justly contend that lands in one or more compact blocks should be allotted to them corresponding with their 1 anna 13 gundan, 1 kara, 1 krant, share. It is contrary to all the accepted principles of partition to allot to a proprietor, or a body of proprietors, lands scattered through 39 mouzahs, therefore, any partition for the purpose of separating the lands of the ijmali share would inevitably result in a re-adjustment of the arrangement heretofore in force between the different sets of co-owners, and it might possibly lead to a disruption of the main division of the taluk into two blocks of 14 and 25 villages. The decree of the Subordinate Judge cannot, therefore, be supported in this respect.
15. The fourth and last contention, that the Civil Court has no jurisdiction to prohibit absolutely a partition to be made by the revenue authorities, arises out of the preceding contention which we have just disposed of.
16. Our attention has been called to an early case Musammat Bibee Khoobun v. Wooma Churn Singh 3 C.L.R. 453, where it was observed that Civil Courts do not interfere with the Collector's power of making a partition. It was there found, as a fact, that there had been a private partition, and this Court gave the plaintiff a further declaration that the Collector was not at liberty in any proceedings under the Batwara Law to vary the terms of the original partition.
17. In a case very recently decided by Mookerjee and Carnduff, JJ., Ananda Kishore Choudhury v. Musamviat Daijie Thakurani 10 C.L.J. 189 : 36 C. 726 : 1 Ind. Cas. 549, questions similar to those now under consideration were discussed with reference to Act VIII of 1876 which was repealed by the present Estates Partition Act (V of 1897). We, however, abstain from expressing any opinion on this point, but we have been impressed with the argument that it would be desirable for the Collector, in his proceedings under the Act, to adhere to the main division of the taluk into two blocks of 14 and 25 villages. No doubt, it seems convenient that this long existing division should be maintained. This, in effect, is the alternative prayer of the plaintiffs. We believe the Collector will have regard to the obvious convenience and justice of proceeding along the line of least resistance, that is to say, by accepting settled facts, so far as possible, and by causing the least disturbance of accepted arrangements. We cannot, however, impose any terms and conditions upon the Collector in a matter like this. Section 119 of the Estates Partition Act provides that certain orders under the Act are not liable to be contested or set aside by civil suits, and, among those orders are orders passed in the course of the proceedings under Chapters VIII and IX which specify how partitions are to be made and the general principles applicable.
18. In the views we have expressed, this appeal is allowed. The suit is dismissed. The appellants will get their costs from the plaintiffs and the defendant No. 2 in equal shares.