Beas Singh and Others vs Baldeo Pathak and Others

Ross, J.—This is an appeal by the defendants first party being defendants Nos. 1 to 3 in a suit brought by the plaintiffs to set aside a

Collectorate partition. The plaint was filed on the 19th of September, 1923, and the allegations were that Mauza Bambhai bearing Tauzi No. 2351

had an area of 161 bighas and that more than fifty years before the lands of the mauza had been partitioned among all the proprietors. It was

alleged that the defendants first party the largest co-sharers in the village had applied before the Collector for partition but that no notice u/s 21 of

the Partition Act was served on the plaintiffs. When they heard of the application they filed an objection alleging the previous partition, but by

collusion between the defendants and the batwara officers they were prevented from knowing the date fixed for hearing the objection which the

Collector accordingly rejected. The cause of action arose on the date on which their objection was rejected by the Collector. It is of importance to

state precisely the reliefs that were sought in this suit. They were as follows:

It may be adjudicated that the entire area appertaining to Mahal Bambhai, Pergana Goh, District Gaya has already been partitioned among all

the proprietors by a private partition, as per details given in paras. 3 to 8 of the plaint and that all the proprietors have accepted and admitted the

same and have been in possession of the thakhtas formed by private partition.

Defendants Nos. 1, 2 and 3, first party or any of the defendants have no right to get partition effected u/s 7 of the Partition Act V of 1897.

The Collector''s order, dated 27th September, 1921, is illegal, ultra vires and ineffectual.

A temporary and thereafter a permanent injunction may be issued against the Collector of Gaya restraining him from any proceedings relating to

partition of Mahal Bambhai, Pergana Goh until decision of this suit or at any time thereafter.

By issuing a temporary and thereafter a permanent injunction defendants Nos. 1, 2 and 3, first party may be restrained from getting the partition

effected until the decision of this suit or at any time thereafter.

The Costs of this suit with interest maybe awarded against defendant! Nos. 1. 2 and 3, first party or against those whom the Court may deem

proper.

The defence of the defendants first party was that the lands of Bambhai measured. 47 acres; that no formal private partition of the village had

ever taken place; that all the processes in the Collectorate proceedings were duly served and that the plaintiffs had full knowledge of all the

proceedings and their objection on the ground of a parivatepartition was rejected by the batwara officers as it could not be proved. It was further

pleaded that the entire partition proceedings were finished and delivery of possession had been given and consequently the suit was not

maintainable. The defendants second party while not contesting the suit admitted in their written statement that when their objection to the partition

was rejected by the Collector then they filed a petition for the allotment of thakhtas of their respective shares.

From the issues framed by the trial Court it appears that there was no issue on the question of fraud in the batwara proceedings and this part of

the plaint must be considered to have been abandoned. The suit was not treated at the trial as a suit based upon fraud. The learned Subordinate

Judge found that there had been a previous partition as alleged by the plaintiffs and that accordingly a parent estate did not exist and the Collector

had no jurisdiction to effect a partition of the village. He, therefore, declared that Mahal Bambhai had been privately partitioned and that the

defendants had no right to get a re-partition of the Mahal and that the order of the Collector, dated the 27th of September, 1921, (that is, the

order making the partition) was illegal and ultra vires and the partition made under the said order was set aside. The learned District Judge

dismissed the appeal and thus confirmed this decree. He agreed that the private partition had been proved, and that it was complete.

A preliminary objection was taken by the respondents that the appeal was not competent because two of the defendants second party, namely,

Isri Singh and Bishun Singh had died after the decree of the lower Appellate Court and before the filing of the appeal in the High Court and their

representatives had not been brought on the record, So far as Bishun Singh is concerned, the point is immaterial because his heirs and

representatives are already parties and the only question is with regard to Isri Singh''s representatives. It appears from the order sheet that an

application to set aside the abatement of the appeal was refused, but later on a notice was issued upon the parties including the representatives of

Isri Singh to show cause why they should not be added as respondents. No cause has been shown by the representatives of Isri Singh and it is

clear from the attitude that they adopted during the partition proceedings that they do not oppose the appeal. The opposition is by the plaintiffs

respondents and the contention is that as this is a suit relating to partition, the appeal is not properly constituted in the absence of one of the co-

sharers and consequently no party can be added under Order XLI, Rule 20. Whatever the powers of the Court may be under Order XLI, Rule 20

it has been held more than once that apart from statutory provision there is an inherent power in the Court to add parties to an appeal: Pulin Behari

Roy v. Mahendra Chandra Ghosal 67 Ind. Cas. 10 : 24 C.L.J. 405. The only question whether this is a proper case in which this power should be

exercised. This depends upon the merits; and if it be found that the suit is not maintainable and the decree is without jurisdiction, then in order to

remove the anomaly which would arise from the absence of the respondents and the consequent continuance of the decree in their favour it seems

to me proper that they should to added, especially as the objection is a purely technical one with no substance of justice in it.

The decree is contested on the ground that even assuming the maintainability of the suit, the previous partition was on the findings not a complete

partition and, therefore, Section 7 of the Act was no bar to a Collectorate partition. The argument is that on the plaintiff''s own showing only 161

bighas were divided whereas the area of the parent estate is 247 acres. The finding of the learned District Judge on this point is not altogether

satisfactory, because all that he says is that the survey area is greater than that of the time of the private partition, being 247 acres; but this is

explained by the addition of lauds of village Ajun before the survey. The real question was as to the area of the parent estate and on this point there

is no decision; and it would, in my opinion, have been necessary to remand the appeal for a decision on this point if the decree had otherwise been

sustainable.

The principal question is whether, in view of the provisions of the Estates Partition Act the present suit can be maintained. The partition is

complete and cannot be set aside without setting aside the orders made under Chap. VIII and Chap. X of the Act; and Section 119 expressly

provides that no order under these Chapters shall be liable to be contested or set aside by suit in any Court or by any means other than those

expressly provided in the Act. It is further argued that Section 25 is a bar to the suit. Section 21 requires the Collector, when a proper application

has been made to him for partition, to publish a Notification, inter alia, inviting any person claiming any proprietary right in the estate who may

object to the partition, to state his objection either by person or by a duly authorised agent on or before a day to be specified in the Notification.

Section 22 enables the Collector on a consideration of the objection if he is of opinion that there is good and sufficient reason for rejecting the

application, to reject it. Section 29 requires the Collector, if no objection is made within the specified time or when all objections have been

disposed of, and if the Collector has no reason to believe that any obstacle exists to his making the partition as applied for, to direct that the

application be admitted and to record a proceeding declaring the estate to be under partition, and containing various other declarations and as

orders. Section 23 deals with such Objections as raise any question of right or title or of extent of interest as between any applicant and any other

person claiming to be a proprietor of a parent estate. When such an objection is raised, the Collector may either direct that the partition

proceedings shall proceed or direct that the proceedings be postponed for four months. u/s 24, at the expiration of the said four months the

Collector shall resume the proceedings Unless the objector or some other person (a) has obtained an order from the Civil Court asking that such

proceedings should be stayed or (b) shows that a suit has been instituted before the Civil Court to try some question of such a nature as to lead the

Collector to think that the proceedings ought to be stayed until the question has been finally decided or until the proceedings in such Court in

respect thereof shall have terminated. Then Section 25 provides that no suit instituted in a Civil Court, after the lapse of four months after the

Collector has (a) made a direction under Clause (a) or (b) of Section 23, or, (b) recorded a proceeding u/s 29, by any person claiming any right or

title in or to a parent estate, shall avail to affect or stay the progress of any proceeding which may have been taken under this Act for the partition

of the estate. It is not said that the present suit was instituted before four months had elapsed after the Collector recorded a proceeding u/s 29.

Consequently the suit could not affect or stay the progress of any proceeding under the Act. Then Section 26 defines the nature of the decree that

may be passed by the Civil Court after a proceeding u/s 29 and before delivery of possession u/s 84. Section 27 defines the nature of the decree

which maybe passed by the Civil Court after delivery of possession in a suit instituted after the lapse of four months mentioned in Section 25. It

would, therefore, appear that as the present decree does not conform to Section 27, it is illegal. Learned Counsel for the respondents in a very

able argument seemed to accept this position and admitted that the partition should not be set aside, but claimed that he should get the lands to

which he has been found to be entitled by the private partition, in the partition as made by the Collector. It is sufficient to say that this is not the suit

that has been brought and that Section 5, Clause (2) of the Act. already provides ""If the interest of such recorded proprietor is the proprietary right

over specific mauzas or lands forming part of the parent estate and held by him in severalty, he shall be entitled to have assigned to him as his

separate estate the said mauzas or lands""; and there is no reason to suppose that this section has not been complied with in the Collectorate

proceedings.

Learned Counsel for the respondents, however, relies on certain decisions which he contends give the Civil Court jurisdiction in a suit of this

nature. These decisions are Ananda Kishore Chowdhry v. Daiji Thakurani 1 Ind. Cas. 549 : 36 C. 726 : 10 C.L.J. 189 ; Narasingh Thakur and

Others Vs. Bishunpergash Singh and Others, Kuldip Sahay and Others Vs. Rajkumar Singh and Others, and Manno Chaudhry v. Munshi

Chaudhry 43 Ind. Cas. 393 : 3 P.L.J. 188 : 5 P.L.W. 97. Now the three last cases were cases where an injunction was sought against the

defendants restraining them from proceeding further before the Collector in a batwara which was being made. They have, therefore, no direct

application to the present case. But in any case, all that was decided was that Section 25 did not bar such a suit. The first case is the only one

which deals with the maintainability of such a suit as the present. Mookerjee, J., in that decision said:

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.

If this means that the Collector is the only authority to decide whether the estate has been previously partitioned, I agree. But if it means that the

Civil Court can decide the question afresh after it has been decided by the Collector then with all respect I am unable to agree to this view. The

Collector has full jurisdiction to make a partition and to decide all objections to his making it. The Collector has a larger, and in some respects an

exclusive jurisdiction in the matter of partition. The functions of the Civil Court in respect of partition proceedings before the Collector are carefully

denned and limited in the Act. This suit is outside those limits. The decree rests on a finding as to a previous partition; but the Collector was

competent to decide that question and did decide it. The result is two conflicting decisions. Which then is to prevail? Is the Collector bound to

ignore his own decision and give effect to that of the Civil Court; or, is the decree of the Civil Court a brutum fulmen? It is precisely to meet such a

situation that Section 119 has been enacted, and, in my opinion, that section fully meets'' this case and bars the civil remedy. The learned Judge

appears to have over-looked the distinction which he himself drew in later cases between want of jurisdiction and an error in the exercise of

jurisdiction. The utmost that can be said is that the Collector wrongly decided against the objection based on previous partition, although how he

could have come to any other decision in the absence of the parties who made the objection, it is difficult to say. But assuming that there was an

error, that was an error in the exercise of jurisdiction and does not take away the jurisdiction to make the partition.

The learned Subordinate Judge was of opinion that as there had been a previous partition the parent estate did not exist and consequently the

Collector had no jurisdiction to effect a partition. This reasoning appears to me to be defective. The existence of a parent estate cannot be

questioned: it is a matter of definition. Even if a private partition had taken place, there was still an ""estate"" within the meaning of the Partition Act

and ""parent estate"" within the meaning of that Act is defined as an ""estate"" for the partition of which proceedings are in progress under this Act or

of which the partition has been effected under this Act. Consequently whether or not there had been a private partition, there certainly was a parent

estate still in existence indisputably.

The point has been put clearly In Girwardhary Singh v. Bachu Singh 5 Ind. Cas. 454 where Holmwood and Chatterjee, JJ., dealing with a

partition which the Civil Court was asked to set aside, though on different grounds from the present, said:

The only case where a final decision of a Court can be set aside merely on the ground of want of jurisdiction is when the Judge has no inherent

jurisdiction over the subject-matter of the suit. Irregularities in the exercise of its jurisdiction by a competent Court must be made the subject of

objection at the time, and the defendant cannot subsequently dispute the jurisdiction of the Court.

And in this case, as in that case, the question is academical, because the Collector had jurisdiction to decide the question. I am of opinion,

therefore, that Section 119 is a bar to the present suit. I am further of opinion that apart from Section 119, the Civil Court has no jurisdiction to

interfere with the acts of the Collector duly performed in the exercise of his statutory powers. The Courts below seem to have lost sight of the

principle of comity between Courts. The Civil Court has no jurisdiction over the Collector and where the Legislature has given full jurisdiction to

the Collector in the matter of partition, it is the duty of the Civil Court to respect that jurisdiction.

On these grounds the decrees passed by the Courts below are, in my opinion, bad and must be set aside. The appeal is, therefore, decreed

with costs in all the Courts and the suit is dismissed.

Das, J.

I agree.