Jainath Singh and Others vs Ramadhin Singh and Others

Das, J.—In this suit the plaintiffs claim to eject the defendants from one cuttah 7 dhoors of land forming the northern portion of survey plot 434. The plaintiffs and defendants were cosharers; and, in a collectorate partition, the northern portion, which is the portion in dispute in this litigation, was allotted to the plaintiffs, whereas the southern portion was allotted to the defendants. The partition took place under Chap. 8, Estates Partition Act. The case of the defendants is that they have their dwelling house in the northern portion of plot 434 and that therefore the plaintiffs are not entitled to eject them from this portion.

The Court of first instance relying upon a decision of this Court in Kesari Sahai Singh v. Hitnarayan Singh [1920] 1 Pat. 507 dismissed the plaintiff''s suit. The lower appellate Court has reversed the decision of the Court of first instance and has directed the learned Munsif to request the Deputy Collector to assess, the rent payable in perpetuity in respect of the land in suit u/s 64, Estates Partition Act, and he has further direct ed that when the Collector has assessed the rent, that rent, subject to the result of any possible appeal to the superior re venue authorities, will be declared to be the rent payable by the defendants to the plaintiffs. In other words, the learned District Judge has declared the title of the plaintiffs to the disputed land but has declined to give them a decree for possession holding that as the disputed land comprises the dwelling; house of the defendants, the plaintiffs are not entitled to eject the defendants from the disputed land.

In coming to this conclusion the learned District, Judge has ignored the decision of this Court which was binding on him and has professed to be guided by the decision of the Calcutta High Court in Raziuddin Hussain v. Taharat Hussain [1911] 16 C.L.J. 19.

As I have mentioned the partition has taken place under Chap. 8, Estates Partition Act. Chap. 9 deals with the general principles for making partitions and Section 64 provides that if a dwelling house belonging to one proprietor is situate on any land which it may be necessary to include in the separate estate of another proprietor, the owner of the house may retain occupation thereof with the buildings and grounds immediately attached thereto, upon agreeing to pay rent annually in perpetuity for the land occupied by the house, buildings and grounds to the proprietor of the separate estate in which such land is included. Section 65, to which it is necessary to refer, having regard to an argument that has been advanced to me, provides that whenever a Deputy Collector thinks fit, he may apply the provisions of Section 64 to gardens, orchards, land planted with bamboos and any other land which, in his opinion, is of special value to the proprietor in whose occupation it is found to be, in consequence of improvements made by such proprietor or the particular use to which such land is put. Section 119, Estates Partition Act, provides that no order made under Chap. 9 except Section 81 shall be liable to be contested or set aside by suit in any Court, or by any means other-than those expressly provided in this Act, I may mention that the Act itself pro vides that orders passed in the course of partition proceedings are liable to challenge by appeals, second appeals, and ultimately by revision applications to Hoard of Revenue, it is clear that the object of the Estates Partition Act is that all matters arising out of batwara proceedings should ho dealt with by the revenue authorities and not by the civil Courts, and Section 119 is clear and precise on this point.

The precise question came up before this Court in Kesari Sahai Singh v. Hitnarayan Singh [1920] 1 Pat. 507. It is true that in that case the question arose not with reference to Section 64, Estates Partition Act, but with reference to Section 65, Estates Partition Act; but the decision of this Court was based on the view that there a partition has been effected by the revenue authorities, the civil Courts have no jurisdiction to disturb the same. Any order which the civil Court may have to pass in this matter would undoubtedly affect the partition made, and I am clearly of opinion that Section 119 constitutes a complete bar to the suit.

Now the case decided by this Court was binding upon the learned District Judge; and in my opinion it was not open to him to ignore the decision by trying to distinguish it on such frivolous grounds as he has put forward in the course of his judgment. So far as the decision of the Calcutta High Court is concerned, it is not binding on this Court and the Calcutta High Court clearly recognized that so far as that Court was concerned it could pass no effective order in the matter.

I may point out that in the Calcutta case, it was found that the intention of the revenue authorities was that the particular plot in dispute should be dealt with u/s 89, Estates Partition Act, then in force, corresponding with Section 64, present Act, and that through an oversight the rent was not assessed. No such intention of the revenue authorities can be gathered in this case, and, in any event it does not seem to me to be right that the civil Court should make a request which may be ignored by the revenue authorities. The civil Courts have no control, either judicial or administrative, over the revenue Courts, and it is wrong on principle and indefensible in practice for civil Courts to issue instructions to revenue Courts.

I must allow the appeal, set aside the judgment and the decree passed by the Court below and restore the judgment and decree passed by the Court of first instance.

The appellants are entitled to their costs throughout.