Debi Saran Singh vs Rajbans Nath Dubey

Chapman, J.—This appeal arises out of a suit for partition and for possession of a 2-annas 3 dams odd share in an estate purchased at a sale for arrears of revenue on the 5th June 1901. The plaintiff alleges that he was dispossessed in 1912. The share that was purchased by the plaintiff is an Ijmali or residuary share, that is to say, the share remaining after the creation of separate accounts in respect of other shares in the estate under the Revenue Sales Act. The defendants Nos. 17 to 22 who did not contest the suit represented, according to the finding of the learned Subordinate Judge against which there has been no appeal, a share of 5 dams only. The plaintiff claimed a partition of the entire estate. The remainder of the share-holders who contested the suit pleaded that the plaintiff was not entitled to a partition of the entire estate, inasmuch as there had been a previous partition on the 27th September 1893 under a decree of the Civil Court. Under that decree the estate had been divided into 12 separate shares. The residuary share purchased by the plaintiff fell within certain of the separated shares or pattis. The defendants'' contention was that the plaintiff was entitled only to have his share carved out of there pattis. Their case was that the remaining 7 separated pattis should not be interfered with. This contention was overruled by the learned Subordinate Judge on the ground that the plaintiff by his purchase of the residuary share acquired an undivided share in the entire estate and that he was not bound by the previous partition. The defendants now appeal to this Court.

The question we have to determine is connected with the concurrent jurisdiction of the Collector and of the Civil Court in the matter of partitions. The Collector is responsible for the collection of the land revenue and, with that in view, the Collector has under the various Estates Partition Acts been charged with the jurisdiction of malting partition of revenue-paying estates including the partition of liability to land revenue. This jurisdiction is given to the Collector with the object of ensuring that the security for the land revenue shall not be imperiled by the manner in which the partition is effected. The Civil Courts have jurisdiction to grant decrees for partition of revenue paying estates, but the CPC requires that the execution of the decree for partition shall be effected by the Collector, see section 51 of the present Code of Civil Procedure. Under the decision of the Full Bench of the Calcutta High Court in Jagadiswari Debya Vs. Koilash Chandra Lahiri and Monmohini Debya and others , however, the majority of the Judges took the view that a Civil Court has jurisdiction to execute a decree for partition of a revenue paying estate provided that it does not assume jurisdiction to partition the liability for the land revenue. This view of the matter has been confirmed by the terms of section 12 of the Estates Partition Act, 1807. It is thus possible to say that in the event of a party applying to the Collector for a partition of the land revenue after partition has been effected by the Civil Court, it would be open to the Collector to re consider the allotment of the shares granted in the Civil Court proceeding.

While, however, the jurisdiction of the Collector to re-open a partition made by the Civil Court may possibly have been retained, there is nothing in any of the Statutes and certainly not in any principle of law which would enable a Civil Court to re-open a partition properly made under a Civil Court decree otherwise than by proceedings by way of review, This view of the matter is based both upon the principle of res judicata which was applied in the case of a previous partition by the Privy Council in the case of AIR 1914 31 (Privy Council) , and also upon the principle that the effect of the final decree of a Civil Court for partition is to put an end to co-tenancy and to vest in each person or group a sole estate in a specific property or allotment. The law does not provide for a suit in the Civil Court under which these separated estates can be divested and a co tenancy recreated for the purpose of making a fresh partition.

The learned Subordinate Judge has taken a different view upon the authority of the case of Kheeroo Mundul Vs. Gungadeen Misser and Another . That was a decision of the year 1874. The facts of that case appear from the judgment to be as follows:--

A share holder in a revenue-paying estate had been in exclusive possession of 25 bighas of land, the subject of the suit, together with other land in lieu of his undivided share in the estate. The plaintiff purchased the 25 bighas of land above referred to from this share holder. The contesting defendants had purchased the share of certain other co-sharers at a revenue sale. The plaintiffs'' contention was that these contesting defendants by their purchase at the auction sale had obtained merely a right to exclusive possession of specific portions of the estate held by the defaulting share-holders whose shares those contesting defendants had purchased. The argument was that inasmuch as the defaulting share-holders had been content to hold exclusive possession of specific portions of the revenue-paying estate in lieu of their undivided share, the contesting defendants who purchased the defaulting shares were entitled only to get those specific portions. It appears that the defaulting share-holders had obtained a separation of accounts u/s 10 of the Revenue Sales Act and not u/s 11. The Judges held that the plaintiffs'' suit must be dismissed upon the ground that under the terms of the Revenue Sales Act where an account has been separated u/s 10 and the corresponding share is sold, what is sold is an undivided share and not any specific portion of the estate, and that to enable the plaintiff to succeed in such a suit would be to introduce uncertainty into the auction sales and the security of the land revenue. The report in the Bengal Law Reporter is imperfect. A fuller report of the judgment will be found in Kheeroo Mundul Vs. Gungadeen Misser and Another . It is not clear from that report that there had in fact been a regular partition effecting the complete separation of the interests of the share-holders. Phear, J., who delivered the judgment said that the different share-holders had by some sort of private partition come to among themselves appropriated different portions of the mahal; but the Judges did not expressly rind that there had been such a complete partition as to put an end to the condition of co tenancy. In such a case no question of res judicata or of the effect of a Civil Court decree for partition arises. That case obviously would be no authority to justify us in holding that a partition effected by a Civil Court decree can be re-opened in a subsequent suit in a Civil Court. I would also be disposed to qualify the statement of the law made in that case. It would be more correct to say that when a share in respect of which a separate account has been opened u/s 10, or a residuary share is sold under the Revenue Sales Act, the extent to which the share must be held to be undivided will depend on the facts of each case. It may be that the share remains undivided only in respect of liability for land revenue and is divided in every other respect subject to the power of the Collector to re-adjust the allotments in the event of the liability for land revenue being partitioned by him. In the present case the plaintiff asked that the liability to land revenue should remain joint as before.

The case of Kheeroo Mundul Vs. Gungadeen Misser and Another was referred to with approval in the case of Annoda Prosa 1 Ghose v. Rajendra Kumar Ghose 29 C. 223; 6 C.W.N. 375 and in the cases of 16 Ind. Cas. 210 (Privy Council) and Kumar Kalmand Singh v. Syd Sarajat Hossein 12 C.W.N. 528. These cases do not carry the matter any further and certainly provide no authority for the contention that a decree for partition effected by a Civil Court does not finally terminate the condition of a co-tenancy and put an end to all further right to partition so far at any rate as the Civil Courts are concerned.

In the case of Moonshee Buzlool Rahman v. Pran Dhan Dutt 8 W.R. 222 it was held that an auction-purchaser of the rights of Government in an estate sold for arrears of revenue is not bound by a decision previously obtained to which the defaulting proprietor was a party, and this principle has been extended to the case of an auction-purchaser of an entire estate at a sale under the Revenue Sales Act [ Kanta Proshad Hajari Vs. Abdul Jamir Sadagar and Secretary of State for India in Council , Gokul Chandra Das v. Hara Sundari Dasi 9 C.W.N. 388 and Gadadhar Base v. Radha Gharan Poddar 34 C. 868]. But the principle has never been applied to the purchaser of the share of an estate at a revenue sale.

In the present case it would be obviously most inequitable that the properties, created into separate estates so far back as 1893 and separately enjoyed now for some 25 years, should be again thrown into the hotchpot. We set aside the judgment and decree of the learned Subordinate Judge and, in lieu thereof, we direct that there be a preliminary decree for a partition of the plaintiff''s share in the pattis created by the previous partition in which the share purchased by him now lies. These pattis will be ascertained by the Subordinate Judge and a preliminary decree made by him accordingly. In order to make an equitable partition of the plaintiff''s share in these pattis, it may be necessary to make a fresh partition of the defendants'' share also in these pattis. The defendants are entitled to their costs in this Court and to half their costs in the Court below. In assessing the costs in this Court no allowance should be given for the preparation of the paper-book having regard to the reckless manner in which numbers of unnecessary papers were included in it.

Atkinson, J.

I concur.