Babu Lal Sao vs Sheoratan Mahton

Mohammad Noor, J.—This is an appeal against an order of a Subordinate Judge of Patna, remanding for trial on merits a suit which had been dismissed on a preliminary point by the trail Court. The facts are these. The plaintiffs had six annas odd share in village Fatehpur Keora, tauzi No. 1006, which they held jointly with other co-sharers of the estate. The estate had about 70 bighas of land which was in khas possession of the proprietors and out of this about 33 bighas is said to have been in separate possession of the plaintiffs. The plaintiffs transferred some of their shares to the defendants 1 to 22.

These defendants however got their names recorded in respect of the entire share of the plaintiffs, namely, 6 annas 18 gandas and odd. The plaintiffs'' case was that in spite of the transfer they still had left to them 2 annas 10 bouris and 2 phauries share in the estate. As the defendant transferees got their names recorded in respect of the entire share which the plaintiffs held, the plaintiffs had to institute a suit for declaration of their title to and confirmation or recovery of possession of the 2 annas odd share (suit No. 680 of 1922). In the meantime the estate (tauzi No. 1006) was declared under partition by the Collectorate and by the time the decree was passed in the suit on 17th April 1925, and confirmed on appeal on 3rd August 1925, the estate had already been partitioned and six estates were formed out of the parent estate.

The plaintiffs, however, took out execution of the decree and got possession of the share decreed to them. When the plaintiffs went to the Collectorate to have their names recorded in respect of 2 annas odd share, for which they had obtained the decree, the revenue authorities refused to do so as the share decreed was a share extending over the entire estate but had then become a share of different denominations in the six estates which had been formed by the Collectorate partition. The plaintiffs then instituted the present suit for a distribution of the decreed share to the various newly formed estates. They were met by the defence that the suit did not lie, because it was for the same relief as they had sought in the earlier suit. The trial Court dismissed the suit, holding that the decree, which the plaintiffs obtained was in contravention of Section 27 of the Estates Partition Act inasmuch as it was not so framed as to apply to the state of affairs as they came to exist after the partition; and that whatever remedy plaintiffs had, it was not by a fresh suit.

The plaintiffs appealed, and the learned Subordinate Judge held that the decree of plaintiffs being in contravention of Section 27 of the Estates Partition Act was null and void and, therefore, the plaintiffs were entitled to bring the present suit. Accordingly he remanded the case for its trial on the merits. The defendants have appealed against this order of remand. Mr. Sarju Prasad, who appears on behalf of the appellants, has taken a position which is not very easy to appreciate. On the one hand he attacks the finding of the lower appellate Court that the decree, which the plaintiffs obtained is null and void, and on the other hand he characterizes the decree as defective and of no value. The position he has taken is the one, which was taken by the trial Court, that the decree of the plaintiffs was a defective decree and therefore, the plaintiffs'' remedy, according to the learned advocate, was to have it amended by the Court which passed it, or to get an order of review, but that a separate suit was not maintainable.

In my opinion the views taken by both the Courts below are wrong, though the order passed by the learned Subordinate Judge that the suit was maintainable is correct. The learned Subordinate Judge has referred to three sections of the Estates Partition Act. Section 25 has got no application. It only says that a suit instituted after four months of the declaration of partition u/s 29 will not stay the partition. No stay was granted in the previous suit instituted by the plaintiffs. Section 26 has again no application, because it refers to a decree passed before the partition is completed.

The only section which has any application is Section 27 which refers to a decree passed after partition proceedings have been completed. That section runs thus:

Every decree affecting a parent estate made by a civil Court after the date specified in the notice served u/s 94, in a suit which was instituted as mentioned in Section 25(a), shall be made in recognition of the partition proceedings, and (b) shall be framed so as to give effect to the division of the parent estate into separate estates which has been ordered by the Collector and so as not to disturb such division.

No doubt, it must be conceded that the decree has been framed on the footing that the estate was joint. It does not however in any way disturb the partition. The only thing needed in the decree was the distribution of 2 annas odd over the six newly formed estates. The question for consideration is what is the effect of such a decree? The object of Sections 26 and 27 is obviously to avoid any conflict between the decision of the civil Court and the order of the Collector passed in partition. There is no conflict in this case.

Cases may be conceived in which decrees passed by the civil Courts in disregard of the partition may be difficult to execute as they stand or may create confusion; for instance, supposing if a man sues another for recovery of a plot of land situated in an estate, by the time a decree is passed, that particular plot has been allotted by the Collectorate partition, not to the defendant of the suit, but to a third party. It is obvious that in such a case the decree cannot be executed against that particular plot. It is therefore provided that the Court at the time of passing the decree must recognize the fact of partition and pass the decree in such a way that the decree may be applicable to conditions after partition. But it cannot be laid down as a general proposition, as the learned Subordinate Judge has done, that a decree, which only ignores the partition but does not disturb it is null and void.

However, it is needless to discuss this matter further, as we are not at a stage when the plaintiffs are seeking execution of a decree which was for a share extending over the whole of the estate by getting possession over different shares situated in six different estates. Even in such a case it would have been the duty of the executing Court to execute it against the newly formed estates after ascertaining the proportionate share in each of them. This was laid down in Ravaneshwar Prasad Singh v. Baijnath Goenka 1917 Pat 258. There the plaintiffs brought a suit for setting aside a revenue sale and recovery of possession of some property. The suit was decreed by the Subordinate Judge, dismissed by the High Court and ultimately decreed by the Privy Council.

In the meantime, the estate was partitioned and the decree passed was not applicable to the estate as formed after partition. This Court held that the executing Court should execute the decree with reference to the estates or interests substituted by the partition of the shares originally claimed in the suit. We are, however, at a stage when the plaintiffs have come to ask, by a separate suit, for a determination that the share extending over the whole estate is now represented by specific shares in six different estates. They remained contented in the execution proceedings by getting a joint possession of the parent estate. The question is whether this suit is barred.

The plaintiffs not being able to get their names recorded for the share of which they got a decree, have, in my opinion, a good cause of action to sue for a determination of specific shares in the six different estates. Para. 12 of the plaint states:

Although, before the aforesaid batwaras, the plaintiffs got possession through the Court over 2 annas 10 bouris and 2 phauris share in previous tauzi No. 1006 over all the takhtas of the principal defendants who are liable, and the plaintiffs are in possession thereof, yet it has become necessary to file this suit for apportionment and specifications of the shares in each of the tauzis formed by partition, for purposes of registration of their names in the Land Registration Department.

The simple object of the suit is the distribution of the decreed share to the six estates and this cause of action accrued to them when the want of specification prevented them from getting their names registered in the Collectorate. I see absolutely nothing in law which prevents the plaintiffs from getting this relief in spite of the previous suit.

The learned advocate has contended that the suit is barred both by reason of res judicata and Order 2, Rule 2. In my opinion, it is neither res judicata nor the order and the rule referred to have got any application. The specification of shares in different estates was not the subject matter of the previous suit nor was there any omission to sue on the same cause of action. Simply because the decree in the previous suit has been drawn up in a form in which it ought not to have been drawn up, the plaintiffs'' right cannot be taken away. The case of Kishen Roy v. Jawahir Singh (1893) 2 Cal 260 was exactly like the present one. There the plaintiff obtained a decree for a share extending over the entire estate. In the meantime the estate was partitioned, and the present estate was held severally by the defendants.

He brought a second suit for specification of the share in those separate estates. The suit was held to be good. No doubt, this was prior to the passing of the Estates Partition Act of 1897. But I am clearly of opinion that Section 27 of the Act does not take away the plaintiffs'' right of getting the share specified later on if it was not specified in the previous suit. I think the learned Subordinate Judge, though he was wrong in holding the previous decree to be null and void, was perfectly right in remanding the case. The appeal is dismissed with costs.

Luby, J.

I agree.