Kuldip Sahay and Others vs Rajkumar Singh and Others

Kulwant Sahay, J.—This is an appeal by the defendants against the decree of the Officiating District Judge of Patna confirming a decree of the Subordinate Judge and decreeing the plaintiffs'' suit for a declaration that certain partition proceedings commenced by the Collector on the application of the defendants wore bad in law as opposed to the provisions of Section 7 of the Estates Partition Act and for an injunction restraining the defendants from proceeding with the partition proceedings before the Collector. The facts are shortly these: The plaintiffs and the defendants are co-sharer proprietors of Estate Lachmipur Tapey Mekra, Pargana Gayaspur, bearing tauzi No. 8267, On the 17th February 1917 the defendants filed an application before the Collector for partition of this estate under the Estates Partition Act and notices provided by Section 21 of the Estates Partition Act were issued whereupon the plaintiffs raised an objection to the partition on the ground that the estate had been previously partitioned and each co-sharer was in possession of separate lands held in severalty as representing his interest in the estate and therefore no partition could be made. This objection was disallowed by the Collector and on the 12th August 1917 the Collector recorded proceedings u/s 29 of the Estates Partition Act. The plaintiffs preferred an appeal before the Commissioner who dismissed the appeal by his order, dated the 22nd November 1917, and ordered the partition to proceed. The plaintiffs thereupon brought the present suit for a declaration as stated above.

The defendants appeared and objected that having regard to the provisions of Section 25 of the Estates Partition Act, the present suit was not maintainable and they also alleged that there was no private partition as alleged by the plaintiffs and therefore there was no bar to the partition proceedings before the Collector. Both the courts below have held that there was a private partition as contemplated by Section 7 of the Estates Partition Act and that therefore the partition before the Collector could not proceed. They have also held that Section 25 of the Estates Partition Act does not bar the present suit. The defendants prefer this second appeal and they contend that having regard to the provisions of Section 25 read with Section 7, the suit was barred. Now Section 25 of the Estates Partition Act provides that no suit instituted in the Civil Court, after the lapse of four months after the Collector has made a direction under Clause (a) or Clause (b) of Section 23 or 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 proceedings which may have been taken under this Act for the partition of the estate. In order to understand the nature of the suit referred to in Section 25 of the Estates Partition Act, it is necessary to refer to Sections 22 and 23. After the notice is issued by the Collector u/s 21, it is provided by Section 22 that if any person claiming a proprietary right as provided in Section 21 states an objection to the partition on or before the day specified in the notification published u/s 21, or at any subsequent time, if it shall then seem fit to the Collector to admit such objection, and the Collector, on consideration of the objection, is of opinion that there is good and sufficient reason for rejecting the application, he may reject the same, and if he does so, shall record the grounds of such rejection. This Section 22 contemplates an objection to the partition proceedings before the Collector on general grounds and one of those grounds may be the ground contemplated by Section 7 of the Estates Partition Act. Then Section 23 says that if any such objection raises any question of right or title or of extent of interest as between any applicant and any other persons claiming to be a proprietor of the parent-estate, and if it appears to the Collector that such question has not been already determined by a court of competent jurisdiction, the Collector may hold such inquiry into the objection as he may deem necessary, and, if he be satisfied that the applicant is in possession of the extent of the interest for the separation of which he has applied, may, instead of rejecting the application as provided in Section 22(a) direct that the partition proceedings shall proceed for the purpose of forming and assigning to the applicant a separate estate in accordance with the extent of interest claimed by him in the parent estate, or (b) direct that such proceedings be postponed for four months.

Now the objection contemplated by Section 23 relates to a question of right or title or extent of interest as between any applicant and any other person claiming to be a proprietor of the estate. Section 25 says that no suit instituted by any person claiming any right or title in or to a parent estate shall avail to affect or stay the progress of any proceedings which may have been taken under this Act (or the partition of the estate if such suit is brought after the lapse of four months after the Collector has made an order u/s 23 or recorded a proceeding u/s 29. To my mind the suit contemplated by Section 25 is a suit raising a question referred to in Section 23 of the Estates Partition Act and not a question u/s 22 of the Act. I am, therefore, of opinion that the present suit, which does not raise any question of right or title or of extent of interest of the plaintiffs but raises an objection to the proceedings before the Collector, is not affected by Section 25 of the Act. This question has been considered in a very recent judgment of the Hon''ble the Chief Justice in Narsingh Thakur v. Bishun Pergash Singh 1924 Pat. 209, and the point has been elaborately discussed by his Lordship the Chief Justice and he has come to the conclusion that a suit like the one is not barred by Section 25. The first objection taken by the learned Vakil for the appellants must, therefore, be overruled.

It has next been argued that there is no finding that there has been a previous private partition representing the interest of the different proprietors as contemplated by Section 7 of the Estates Partition Act. The learned District Judge in his judgment, expressly states that this point was taken before him on behalf of the defendants and he comes to the conclusion that the partition as proved by the plaintiffs in the present case is a partition as contemplated by Section 7 of the Act. This finding is a finding of fact which is conclusive in second appeal. This objection, therefore, cannot be entertained.

The result is that this appeal must be dismissed with costs.

Das, J.

I agree. The decision of my Lord the Chief Justice in the case to which my learned brother has referred is so clear and convincing that I have come to the conclusion that the view presented by me in Thakur Badri Narain Stngh v. Subhkaran Misser (1921) 6 Pat. L.J. 41 can no longer be maintained. It is quite true that the question was not argued in the form in which it has been argued before us to-day; but it must be conceded that if, as I think, the point has been correctly decided by my Lord the Chief Justice in the ease to which my learned brother has referred, the appeal to Thakur Badri Narain Singh v. Subhkaran Misser (1921) 6 Pat. L.J. 41 should have succeeded and not failed.