1. This is an appeal on behalf of the plaintiffs in a suit for declaration that the immoveable properties which form the subject matter of litigation had been privately partitioned and could not form the subject matter of partition by the Collector under the Estates Partition Act. There has been no investigation into the facts of the case but the Subordinate Judge has dismissed the suit on several preliminary grounds namely, first, that the suit was not maintainable under the provisions of Act V of 1897; secondly, that it was barred by limitation under Section 25 of that Act; thirdly, that under Section 119 of the Act the plaintiffs were precluded from questioning the validity of the order for partition made by the Revenue Court; and fourthly that the suit was barred under Section 42 of the Specific Relief Act.
2. The plaintiffs have appealed to this Court and on their behalf it has been contended that the view taken by the Subordinate Judge on each of the above points is erroneous and that the case ought to be tried on the merits. In our opinion, this contention is well-founded and must prevail.
3. It is obvious as regards the first ground that the Subordinate Judge has committed a serious error tin applying the provisions of Act V of 1897 to the circumstances of this case. It appears that proceedings wore commenced before the Collector for partition of the estate so far back as 1884, and from the papers placed before us, it is fairly clear that the order under Section 63 of Act VIII of 1876, which was in force when the partition proceedings were commenced, must have been made before 1897, when the act now in force came into operation. We hold, therefore, that under section. 2 Clause (b) of Act V of 1897, all subsequent proceedings for partition must be carried on under Act VIII of 1876, as if Act V of 1897 had not been passed. It follows, consequently, that the Subordinate Judge ought to have determined the question of the maintainability of the suit with reference to the provisions, not of Act V of 1897, but of Act VIII of 1876. Now, let us turn for a moment to the provisions of Act VIII of 1876 and see whether the present suit is barred. Section 12 of Act VIII of 1876, provides that no partition of an estate, in which private division has already been made, is to be made by the Collector except on a joint petition of all the proprietors or by an order of the Civil Court. In other words, in a case in which it is established that an estate has been privately partitioned, the Collector has no jurisdiction to partition it again under the Estates Partition Act except in one or other of two contingencies namely, either upon the joint petition of all the proprietors or by the order of the Civil Court. Section 21 provides that, if in the opinion of the Collector the application for partition fulfills the requirements of Sections 18 and 19, that is, is in proper form and is accompanied by the necessary documents, and if in his judgment there does not appear to be any objection to the making of the partition, he may invite objections thereto. One of the objections may be under Section 12 of the Act; for any of the proprietors upon issue of notice under Section 21 may appear before the Collector and contend that he has no jurisdiction to make the partition in view of the provisions of Section 12. If such objection is taken, it may be allowed by the Collector under Section 23 or it may be overruled by him under Section 31. In the latter contingency, the Collector directs that the application be admitted and declares the estate to be under partition. In the case before us, so far as we can gather from the materials on the record, an objection was taken that in view of the provisions of Section 12, the Collector had no jurisdiction to make the partition. The allegation that there had been a private partition was challenged, and it was determined by the Collector, and ultimately by the Board of Revenue, that the private partition set up was not established and that consequently there was no bar to the partition of the estate. This order appears to have been made so far back as the 29th April 1886. It is now contended by the respondent that the decision of the Revenue authorities upon the question of the reality of the alleged private partition is conclusive between the parties and that the Civil Court has no jurisdiction to investigate whether or not it was competent to the Collector to make the partition in view of the provisions of Section 12. In support of this view, reliance is placed upon the provisions of Section 149 of Act VIII of 1876. In our opinion the section mentioned is of no assistance to the respondent. That section provides that certain specified orders are not liable to be contested or set aside by a suit in the Civil Court. An order under Section 31, overruling an objection taken under Section 21 to the effect that the partition cannot proceed in view of the provisions of Section 12, does not fall within the scope of Section 149. It is suggested by the learned Vakil for the respondent that, as an order under the first clause of Section 32 cannot be challenged in a Civil Court, an order under Section 31 also must by implication be taken to fall within the scope of Section 149. There is obviously no foundation for this contention. On the other hand, the very circumstance that orders under Sections 11 and 32 are expressly excluded from the cognizance of the Civil Court, makes it fairly obvious that an order, under Section 31, of the description now before us, was not intended to be excluded from challenge in a Civil Court. In our opinion the policy which underlies Section 149 is clearly against the contention of the respondent. The object obviously is to exclude the jurisdiction of the Civil Court in cases where the question relates to the division of the Government revenue or to the details of the partition. Where, however, the question raised goes to the very root of the matter and relates to the jurisdiction of the Collector to make a partition in spite of the provisions of Section 12 of the Act, it is impossible to hold that the Civil Court is not competent to decide the matter in controversy between the parties. The view taken by the Subordinate Judge that the suit is not maintainable cannot, therefore, be supported.
4. The second ground upon which the Subordinate Judge has dismissed the suit is that it is barred by limitation under Section 25 of the Estates Partition Act. Here also the Subordinate Judge has fallen into error in relying upon the provisions of Act V of 1897. The question, however, remains whether the suit is barred under the corresponding section of Act VIII of 1876. Section 26 of that Act provides that no suit instituted in a Civil Court by any person claiming any righter title in the parent state after the lapse of four months from the issue of an order of the Collector under Clauses (a) and (b) of Section 24, or after the lapse of four months from the issue of an order of the Collector under Section 31 declaring the estate to be under partition, shall avail to stay or affect the progress of any proceedings which shall have been taken under the Act for the partition of the estate; and all rights which may be conferred on any person by the final decree in such suit shall be subject to such proceedings in the manner hereinafter provided. This section has to be road with the provisions of Section 24 and if the two sections are taken together, there cannot, in our opinion, be any doubt that Section 26 has no application to the circumstances of the present case. Section 24 prescribes the procedure to be followed when the objection raises any question of title or right. Section 26, then, provides that if the objector institutes a suit to have his title or right established and if he succeeds in the litigation, the decree of the Civil Court is to be subject to the result of the partition proceedings before the Collector; in other words, the successful litigant before the Civil Court takes the allotment which would otherwise have fallen to his opponent. It is clear, therefore, that the suit is not barred by the provisions of Section 26 of Act VIII of 1876, nor can it be suggested that the suit is barred under the provisions of Article 14 of the Limitation Act. That article no doubt provides that a suit to set aside any act or order of an officer of Government in his official capacity, not otherwise expressly provided for, must be commenced within a year from the date of the Act or order. It has been held, however, in the cases of Laloo Singh v. Purna Chander Banerjee 24 C. 149, Raj Chandra Roy v. Fazijuddin Hossein 32 C. 710, Narendra Lal Khan v. Jogi Hari 32 C. 1107 and Alimuddin v. Ishan Chandra Dey 33 C. 693, that an order made without jurisdiction is a nullity and need not be set aside; to an order of this description, Article 14 has no application. The case of Parbatti Nath Dutt v. Rajmohan Dutt 29 C. 367, in which an apparently contrary view was taken, is really distinguishable. In that case it was held that a suit to be party to an enquiry under Section 116 of Act VIII of 1876, (against whom there has been an adverse decision of the Revenue authorities), for declaration that the land was part of his howla, was governed by Article 14. There, however, the Revenue authorities had jurisdiction to pass the order and as the plaintiff was a party to the order, it may be suggested that he was bound to set it aside before he could ask for any relief. If the contention of the plaintiff in the case before us is well founded, that is, if it is established that there was a private partition as alleged in the plaint, the order of the Collector was clearly without jurisdiction in view of the provisions of Section 12 of Act VIII of 1876; and it would be wholly unnecessary for the plaintiff to have such order set aside. The suit is, therefore, not barred under Article 14 of the Limitation Act.
5. The next ground, upon which the Subordinate Judge has held that the suit is not maintainable is equally unfounded, for he has proceeded upon the provisions of Section 119 of the Estates Partition Act, which has no application. This ground, therefore, cannot be supported.
6. The fourth and last ground upon which the Subordinate Judge has dismissed the suit is that as the defendants are in possession, the plaintiff cannot maintain a declaratory action and therefore, in view of the provision of Section 42 of the Specific Relief Act, the suit is bound to fail. It is pointed out, however, that upon the question of possession of the defendants there is really no evidence on the record. The Subordinate Judge has relied apparently upon an entry in the order sheet of the Collector to the effect that possession has been delivered to the defendants. In view, however, of the decision of this Court in Mir Tapurah Hossein v. Gopi Narayan 7 C.L.J. 251, the entry in the order sheet of the Collector is no evidence that the defendants are in possession. If the defendants allege that they are in possession, the fact has to be proved. No doubt they may produce the return of the peon who is alleged to have given them possession and the peon may also be examined. But the ex parte entry in the order sheet by itself is no proof of possession as against the plaintiffs. Apart from this consideration, however, it is fairly clear that if the defendants are now in possession they must have obtained possession during the pendency of this suit. It is worthy of note that the order of the Collector which recites that possession has been delivered was made on the 29th January 1907, while the suit had been commenced on the 9th April 1906. The suit, therefore, could not be affected by an event which happened during its pendency. Ram Ratan Sahu v. Mohant Sahu 6 C.L.J. 74, Wamanrao v. Rustomji 21 B. 701. The plaintiff, however, would be entitled, under circumstances like these, to ask for leave to amend the plaint so as to make it appropriate to a suit for possession. This is clear from the decision of this Court in Jugdeo Singh v. Habibullah Khan 6 C.L.J. 612. Reliance was again placed by the respondents upon the decision of this Court in the case of Raj Narain Das v. Shama Nando Das Chowdhry 26 C. 845, which, however, has been subsequently set aside on review. (See 33 C. 1362). But if that judgment were good law, the present case is clearly distinguishable, because there the dispossession had taken place before the suit was commenced; here the dispossession, if any, must have been taken place after the commencement of the suit and the plaintiff cannot, in any view, be blamed for framing it as a declaratory action.
7. The result, therefore, is that this appeal must be allowed, the judgment and decree of the Subordinate Judge set aside and the case remitted to him to be tried on the merits. The appellants are entitled to their costs in this Court.
8. As the suit was dismissed by the Court below on a preliminary ground, we direct that the Court-fees paid by the appellants on the memorandum of appeal to this Court be returned to them under Section 13 of the Court Fees Act.