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YasIn Ali Mirdha and ors. Vs. Radha Gobinda Chaudhuri and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in55Ind.Cas.180
AppellantYasIn Ali Mirdha and ors.
RespondentRadha Gobinda Chaudhuri and ors.
Cases ReferredBroiendra Kishore Ray v. Kali Kumar Chowdhury
Excerpt:
assam land and revenue regulation (i of 1886), sections 3(b), 96, 97 - partition of revenue-paying estate--jurisdiction of revenue court to effect partition--lands of estate joint with lands of other estates, effect of--partition of estate affecting distribution of revenue, whether to be effected by civil or revenue court--jurisdiction conferred by statute--power of court to enforce jurisdiction. - .....amongst other things, any land subject, either immediately or prospectively, to the payment of land revenue, for the discharge of which a separate engagement has been entered into. section 93, which finds a place in the sixth chapter devoted to partition and union of revenue-paying estates, classifies partition as either perfect or imperfect. perfect partition means the division of a revenue-paying estate into two or more such estates, each separately liable for the revenue assessed thereon. imperfect partition means the division of a revenue paying estate into two or more portions jointly liable for the revenue assessed on the entire estate. section 97 defines the persons entitled to partition and is in these terms:(1) every recorded proprietor of a permanently-settled estate and.....
Judgment:

1. This is an appeal by the plaintiffs in a suit for declaration that an order for partition of an estate made by the Sub-Divisional Officer of Sunamganj on the 15th April 1913 and confirmed successively by the Deputy Commissioner of Sylhet on the 14th July 1913, by the Commissioner on the 6th December 1913 and by the Chief Commissioner on the 22nd November 1914, was without jurisdiciton and was consequently inoperative in law. The case for the plaintiffs is that they objected to the applications for partition presented by the defendants to the Revenue Authorities, on the ground that some of the lands of the estates sought to be partitioned were joint with the lands of other estates and the Revenue Authorities were not competent, under the Assam Land and Revenue Regulation 1886, to effect a partition of lands included in several estates. This objection was overruled as untenable. The substantial matter in controversy in the present litigation is the question of the legality of the order made by the Revenue Authorities.

2. The Subordinate Judge has held that the decision of the Revenue Court was not ultra tires and that the plaintiffs were not entitled to the declaration and injunction asked for in the plaint.

3. To appreciate the true position, reference may be made to the application for imperfect partition, which was presented on the 31st October 1911 by the first two defendants, and may be regarded as typical, as the applications presented by the 3rd defendant on the 21st February 1912, and by the 4th defendant on the 22nd March 1912, respectively may be treated, for the solution of the question raised before us, as similar in scope and purpose. The application of the first two defendants describes the estate to be divided as Taluk Krishnamani (Nos. 24, 202-12) appertaining to Perganah Pagla, total revenue Rs. 6-3 annas. Then follows the statement that account No. 1 of that Mahal stands in the names of the petitioners and bears the total revenue Rs. 4-2 annas. This indicates the applicants' own two-thirds share in the Taluk. The next column specifies the Mouzas included in the estate, namely, Dekharhant, Dhamdharpur, and Kastachpur. The fourth column states that the applicants have a two thirds share of the original Mahal. Then follow in the sixth column the names of the other sharers with their respective shares. In the seventh column it is prayed that the lands of the original Mahal, the subject-matter of the application, may be imperfectly partitioned and an allotment in respect of two-thirds share may be made in favour of the applicants. The eighth column contains important statement that the lands of the original Mahal in respect of which the application is made are joint with six Mahals (names and numbers specified). The applicants pray that the lands of the original Mahal in respect of which this prayer is made may be separated from those of the other Mahals and the same may be partitioned, and, treating it as 16 annas, the applicants may be given an allotment representing two thirds of 16 annas. Then follows the statement that the proprietors of the joint Mahals have all been made parties to the proceeding. The question thus arises, whether the Revenue Court has jurisdiction to effect a portion of an estate when the lands of that estate, in whole or in part, are joint with the lands of oilier estates.

4.The answer to the question in controversy mist depend primarily upon the true construction of the provisions of the Assam Land and Revenue Regulation. Section 3, class (b) furnishes a definition of an estate; it includes, amongst other things, any land subject, either immediately or prospectively, to the payment of land revenue, for the discharge of which a separate engagement has been entered into. Section 93, which finds a place in the sixth chapter devoted to partition and union of revenue-paying estates, classifies partition as either perfect or imperfect. Perfect partition means the division of a revenue-paying estate into two or more such estates, each separately liable for the revenue assessed thereon. Imperfect partition means the division of a revenue paying estate into two or more portions jointly liable for the revenue assessed on the entire estate. Section 97 defines the persons entitled to partition and is in these terms:

(1) Every recorded proprietor of a permanently-settled estate and every recorded land-holder of a temporarily-settled estate, may, if he is in actual possession of the interest, in respect of which he desires partition, claim perfect or imperfect partition of the estate:

Provided that

(a) no person shall be entitled to apply for perfect partition if the result of such partition would be to form a separate estate, liable for an annual amount of revenue less than five rupees ;

(b) no person shall be entitled to apply for imperfect partition of an estate unless with the consent of recorded co-sharers holding in the aggregate more than one-half of the estate ;

(c) a person may claim partition, only in so far as the partition can be effected in accordance with the provisions of this chapter.

(2) When two or more proprietors or landholders would be entitled under Sub-section (1) to partition in respect of their respective interests in the estates, the may jointly claim partition in respect of the aggregate of their interests.

5. It is plain that, subject to the restriction specified in the proviso, every recorded proprietor of a permanently settled estate and every recorded land-holder of a temporarily settled estate may, if he is in actual possession of the interest in respect of which he desires partition, claim perfect or imperfect partition of the estate. The plaintiffs contend that in order to entitle the Revenue Court to effect a partition under Section 97, the land comprised in the estate must be land which exclusively belongs to that estate; in other words, if any portion of the land of an estate is joint land of that and other estates, Section 97 ceases to be applicable. The defendants contend, on the other, hand, that the construction put forward by the plaintiffs narrows the operation of the section in a manner not justified by its language. After a careful consideration of the language of the section, we have arrived at the conclusion that the contention of the plaintiffs should not prevail. The section confers upon every recorded proprietor of a permanently-settled estate, subject to the qualifications specified therein, the right to claim a partition of the estate. It makes no reference, directly or by implication, to the mode in which the lands of the estate are held. If all the lands included in the estate belong exclusively to that estate, no difficulty admittedly arises. But if some or all of the lands included in the estate are the joint lands of several estates, there is no reason in principle why the right to claim partition should be negatived. The duty is imposed upon the Revenue Court to effect a partition of an estate on an application by a person competent to claim partition under Section 97. It is plain that the first step in the performance of that duty is to ascertain the lands which constitute that estate. To carry out this preliminary step, it may conceivably be necessary to have recourse to an ancillary measure, namely, to effect a partition of the joint lands of the several estates and thereby to ascertain the lands which belong to the estate under partition. The plaintiffs have contended that this view is open to the objection that it may enable the parties to do that indirectly which cannot be done directly. If a partition were claimed of a portion which constitutes the joint lands of several estates, the application would be forthwith refused, because those joint lands do not constitute an estate within the meaning of the Assam Land and Revenue Regulation. This may be conceded, but no valid objection in principle can be taken to the procedure indicated. It is a well-known rule of interpretation of Statutes that where a Statute confers jurisdiction, it impliedly grants also the power to do such acts, adopt such measures, and employ such means as are essentially necessary to its execution. If the Legislature had intended that the Revenue Court should have authority to effect a partition of such estates alone as do not include lands joint with other estates, a suitably restricted phraseology might easily have been framed to indicate that view. On the other hand, there is a serious objection to the contention put forward by the plaintiffs. If it be maintained that the joint lands should first be divided by a Civil Court, the result would follow that the Civil Court would in essence be called upon to constitute an estate for the purpose of partition under Section 97 and consequently to deal with a matter which affects the Government revenue and is excluded from its jurisdiction by Section 154 (1) (f) of the Regulation. But, in this Regulation, as in other legislative enactments of this description, the policy is consistently followed that the partition of an estate which affects the distribution of the revenue should be effected not by a Civil Court but by the appropriate Revenue Court. To take another illustration--suppose a partition has been effected of an estate and four new estates A, B, C, D have thereby been created, in such a way that some lands of the estates are joint though each estate constitutes a separate entity in the revenue records. If, in course of time, estate A passes into the hands of several persons who find it necessary to seek a partition, perfect or imperfect, no partition can, according to the plaintiffs, be effected, because, a partition is not permissible when the lands of an estate (e.g., A) are joint with the lands of other estates (e, g , B , C, D.). If the argument of the appellants were to prevail, no partition, perfect or imperfect, could be made of lands included at one time in an estate which has later formed the subject-matter of partition keeping some of the lands joint. The Court would be slow to place so narrow a construction upon the Regulation and thereby largely restrict the application of its provisions, unless the language used by the Legislature left no escape from such a position.

6. In view of all this, the appellants have been indeed driven to suggest that neither the Civil Court nor the Revenue Court is competent to effect a partition under these circumstances. Reference has been made to the provisions of Section 13 of Regulation VIII of 1800, and Section 4 of Regulation XlX of 1814, to show that no partition by Revenue Authorities was possible in respect of lands Common to several estates, and our attention has been invited to the cases of Doorga Kant v. Radha Mohun 7 W.R. 51 and Oomesh Chunder v. Manick Chunder 18 W.R. 128 which affirmed the proposition that when land was held in joint possession, each proprietor receiving his portion of the rent according to his interest in the land, it could not, under the Partition Regulation of 1814, be divided either by the Civil Court or by the Revenue Authorities--not by the former, because such partition might endanger the Government revenue, nor by the latter because such a partition was not contemplated by the Partition Regulation, It has also been suggested that with a view to remove this difficulty, Act VIII of 1876 B.C. included a provision in Section 112 for partition of lands common to two or more estates, which has been subsequently reproduced in Section 84 of Act V of 1897 B.C. The plaintiffs have contended that, by an oversight, the framers of the Assam Land and Revenue Regulation did not embody a similar provision therein, We are of opinion) that this assumption, even if well-founded, is of no real assistance in the solution of the question before us, because neither Section 112 of Act VIII of 1876, nor Section 84 of Act V of 1897, would have covered the contingency which has arisen here. We prefer accordingly to base our judgment upon an examination of the provisions of the Assam Land and Revenue Regulation.

7. We may observe that our conclusion is in harmony with what has been recognised as settled law for nearly a quarter of a century. In Abdul Khaliq v Abdul Khaliq 23 C. 514 Banerjee and Gordon, JJ., ruled that in a suit for partition, without division of revenue, of lands held jointly by the parties in four different estates, governed by the Assam Land and Revenue Regulation, although the division asked for might not include all the lands of each of the four estates, the suit was in reality one for an imperfect partition, because such division would result in a division of each of those estates the lands left out forming one portion and the lands sought to be divided forming another. The suit was accordingly deemed barred under Section 154, Clause (e), of the Assam Land and Revenue Regulation, which provides that no Civil Court shall exercise jurisdiction in the matter of claims of persons to imperfect partition, except in oases in which a perfect partition could not be claimed from, and has been refused by, the Revenue Authorities on the ground that the result of such partition would be to form a separate estate liable for an annual amount of revenue less than Rs. 5. The plaintiffs have contended that the expression of opinion contained in this judgment is in, the nature of an obiter dictum. We are not prepared to adopt that view, because the reason assigned was essential to justify the conclusion. A similar view was taken by Macpherson and Ameer Ali, JJ., in Sarat Chandra v. Prokash Chandra 24 C. 751 where it was ruled that an estate does not cease to be an entire estate within the meaning of the Assam Land and Revenue Regulation, because a few plots of land are common to it and some other estate or because they are held in some undefined way jointly with other persons. The result followed that where a suit was brought for the partition of an estate, excluding certain portions as being held jointly by third persons, the jurisdiction of the Civil Court was still barred by Section 154 of the Regulation. These decisions have, so far as we can discover, never been questioned, and we, are not prepared, at this distance of time, to treat the matter as if it were res integra, Reference has also been made to the decision in Gouri Krishna v. Sabanunda Sarma 32 C. 1036 : 1 C.L.S. 421 which, however, is clearly distinguishable. It was there ruled that a suit for the partition of certain specific plots of land situated within a revenue-paying estate in Assam, the plaintiff, having no joint interest in the other lands of the estate, is not covered by Section 154 of the Assam Land and Revenue Regulation and is cognizable by the Civil Court, as the Revenue Authorities have no jurisdiction to make such a partition. We need not pause to consider, whether this may be reconciled with the principle involved in the two decisions previously mentioned. But it is plain that the view taken by the majority does not militate against the conclusion that an estate does not cease to be an estate within the meaning of the Assam Land and Revenue Regulation, merely because its lands are held jointly with the lands of other estates, provided it fulfils the requirements of the definition given in Section 3. The proposition adopted by us is identical with that formulated in Brojendra Kishore Ray v. Kali Kumar Chowdhury 46 Ind. Cas. 967 : 46 C. 236. But we have not placed reliance upon that case, as one of the arguments assigned in support of the decision appears on examination to be incorrect. It was assumed in that case that the Assam Land and Revenue Regulation repealed the Bengal Partition Act VIII of 1876, which in reality was not repealed by the Regulation, for the simple reason that it was never in force in Assam; indeed, it could not be, as it was passed by the Bengal Legislative Council after the separation of Assam in 1874. The Partition Law in force when the Assam Regulation came into operation was Regulation XIX of 1814, which was repealed by Section 2. But although we cannot thus adopt the reasoning in the case of Broiendra Kishore Ray v. Kali Kumar Chowdhury 46 Ind. Cas. 967 : 46 C. 236 we have reached the same conclusion on other grounds.

8. The result is that the decree of the Subordinate Judge is affirmed and this appeal dismissed with costs.


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