Hemchandra Mahto and Others vs Prem Mahto

Kulwant Sahay, J.—Mouza Kaluhar in Manbhum was owned by a large number of co-sharers. In 1913 a partition suit was brought by some of the co-sharers in the Court of the Subordinate Judge of Purulia which was registered as Suit No. 219 of 1913. In that suit the present plaintiffs and defendants were all arrayed as defendants. A preliminary decree was passed on compromise on the 12th September 1914, wherein the shares of all the co-sharers were determined. A commissioner was appointed to effect partition by metes and bounds. The Commissioner effected the partition and made allotments to all the co-sharers who were parties in the suit; and in accordance with the report and allotments of the Commissioner the Court made a final decree on the 19th June 1916. The case of the plaintiffs in the two suits giving rise to the present appeals was that by the said partition lands were separately allotted by them. In Suit No. 1172 the plaintiffs claimed that 1 bigha 19 kathas out of plot No. 83 of the Commr''s map was separately allotted to them in suit No. 1173, 1 bigha 2 kathas in plots Nos. 83 and 83-A was also separately allotted to them. Their case is that when they wanted to take possession of these lands they were obstructed by the present defendants who were also defendants in the partition suit and hence they brought the present suits for declaration of title and recovery of possession. The defendants pleaded that they were not aware of the partition alleged by the plaintiffs: that there was no compromise in the said partition suit that the Commissioner had no authority to partition the shares of the other co-sharers except those of the plaintiffs in the said partition suit; and there was an objection taken to the effect that the present suits were barred u/s 47 of the Civil P.C.

The learned Munsif overruled the objections of the defendants and made decrees in favour of the plaintiffs in the two suits. On appeal by the defendants the learned Subordinate Judge confirmed the decree of the Munsif. The Defendant No. 3 thereupon came up in second appeal to this Court.

It may be noted that the plaintiffs in the two suits were different but the defendants were the same in both the suits and the second appeals to this Court were by the Defendant No. 3 alone.

Two points were raised in the second appeal which ware heard by Mr. Justice Das sitting singly. The first point was that the preliminary decree in the partition suit, which was a consent decree was not binding upon the Defendant No. 3 inasmuch as he was a minor at the time the said consent decree was passed but that the petition of compromise was not signed by his guardian ad litem, and that, therefore, the said decree was wholly void as against him. The second point taken was that Section 47 of the Civil P.C. was a bar to the suit. The learned Judge of this Court held that the findings of the Subordinate Judge were not sufficient or satisfactory and that the points raised by the appellant could not satisfactorily be determined by him, and he accordingly set aside the decrees of the Subordinate Judge and remanded the case for rehearing.

Against this decision of Mr. Justice Das the present appeals have been filed by the plaintiffs under the Letters Patent.

As regards the first objection, namely that the Defendant No. 3 being a minor, and the petition of compromise not being signed by any one on his behalf and, therefore, the preliminary decree being void, it appears that this objection was not taken in either of the Courts below. From the judgment of the learned Subordinate Judge it appears that the objection taken before him was that the guardian of the Defendant No. 3 did not obtain the permission of the Court to enter into the compromise and that the decree, therefore, was ultra vires. The learned Subordinate Judge disallowed this objection on the ground that there was nothing on the record to show that the Court had not granted permission to the guardian of the Defendant No. 3 to compromise the suit. The objection taken in this Court was different from the objection taken before the Subordinate Judge, and, in my opinion, he ought not to be allowed to take this objection for the first time in second appeal. The decision of this question depends on findings of fact which the Courts below were not asked to decide. Moreover, it is admitted that in the final decree which was passed in the partition suit on the 19th June 1916, there was no defect whatsoever. The Defendant No. 3 is evidently bound by this final decree and, in my opinion, there is no substance in this objection and there WAS NO necessity of a remand to enquire into this point.

As regards the second objection, namely, the bar of Section 47 of the Civil P.C., I am of opinion, that the decision of Mr. Justice Das is correct. The first Court overruled this objection on the ground that the plaintiffs in the present suit were defendants in the previous partition suit and they were not the decree-holders and so they could not have got possession in execution of the decree. The learned Subordinate Judge on appeal observes that the effect of the partition decree declaring what specific lands were allotted to the plaintiffs in the present suits was to make that decree a declaratory decree so far as they were concerned, and as a declaratory decree is incapable of execution the present plaintiffs could not enforce the same by execution, and that, therefore, the present suits were not barred by the provisions of Section 47 of the Civil P.C. Mr. Justice Das rightly points out that the view taken by the Courts below was incorrect. He observed that if a decree is passed in a partition suit, the parties thereto whether arrayed as defendants or as plaintiffs, and in regard to properties that may be allotted they are exactly in the position of decree-holders. No doubt, as was observed by Mr. Justice Das, if the partition decree merely directed the separation of the shares of the plaintiffs in the partition suit and left the shares of the defendants joint amongst themselves, the defendants could not execute that decree and there was nothing to prevent those defendants from bringing a fresh suit for partition of the lands jointly allotted to them. The view therefore taken by the lower Courts was incorrect.

Mr. Justice Das, however, remanded the case for a determination as to what was the position of the parties in the present suits under the final partition decree. In my view the materials on the record are sufficient to dispose of this question in this Court, and the remand seems to be unnecessary. The final partition decree is on the record, and it directs that a decree be passed in accordance with the report, map and allotment papers of Babu Radha Ballabh Sarkar, the Commissioner appointed in the suit, and that the report, map and allotment papers do form a part of the decree and it awards costs to the plaintiffs in the suit. It is admitted by the present plaintiffs and it also appears on reference to the allotments made by the Commissioner that the lands now claimed by the plaintiffs in the present suits were allotted to them in the previous partition case and the final decree in the partition suit directs that the allotments made by the Commissioner be confirmed. The present plaintiffs were, therefore, in a position to take delivery of possession of the lands allotted to them by executing the final partition decree. It is argued that there is no direction in the final decree for possession being delivered to the present; plaintiffs over the lands allotted to them; but there is no such direction even in favour of the plaintiffs in the partition suit. It is clear that the decree intended that each of the parties should take possession in accordance with the allotments made by the Commissioner. As regards the payment of Court-fees by the present plaintiffs, who were defendants in the partition suit, in order to enable them to obtain possession of their shares, I see nothing in the law which requires a defendant in a partition suit to pay Court-fees in order to have his share separately allotted to him; he was merely to ask for it in his written statement, and it is open to the Court to order the shares of the defendants in a partition suit to be separated as amongst themselves. The decree that is finally drawn up in the partition suit has to be stamped as an instrument of partition under the Stamp Act and except the stamp duty levied on the decree, no other duty as Court fee is payable by the defendants: see Nawab Mir Sadruddin v. Nawab Nuruddin (1905) 29 Bom 79. A contrary view appears to have been taken in Abdul Khadar v. Bapubhai (1899) 23 Bom 188 and Murarrao v. Sitaram (1899) 23 Bom 184. But these two cases do not appear to be pure suits for partition. At any rate no provision of the law has been referred to in these cases. In the present case we find that a final partition decree was prepared by the Court and although there is nothing on the record to show it, it must be presumed that the decree was properly passed after payment of the stamp duty. In my opinion therefore there is no necessity of a remand in the present case and it is clear on reference to the final partition decree that it was open to the present plaintiffs to obtain possession of the lands allotted to them, on taking out execution of the decree. That being so the present suit for recovery of possession of the lands which were admittedly allotted to them is the previous partition is evidently barred by Section 47, Civil P.C.

I would therefore modify the order passed by Das, J., and allow the second appeals filed in this Court by Defendant 3 and dismiss the plaintiffs'' suits altogether. The respondent will get his costs throughout.

Mullick, Ag. C.J.

I agree.