Mahadeo Saran Pande and Another vs Shaikh Khuda Bakhsh and Others

Manohar Lall, J.—This is an appeal by the plaintiffs who are aggrieved by the concurrent decisions of the Courts below by which they have dismissed their suit which was instituted on 5th March 1938, to recover possession of two plots bearing Nos. 841 and 842 appertaining to village Balua, tauzi No. 508. The plaintiffs'' case was that as a result of a collectorate partition, which started in 1929 and which was completed in 1935, they were allotted these two plots in their takhta and that they obtained delivery of possession in August 1932. But the defendants owing to ill-feeling and enmity during the Batwara proceedings constructed a house on these two plots for keeping husk, for using as cattle-shed and they have also constructed a well thereon and refuse to give up possession. The defence to the action was that these two plots were in possession of defendant 2 who had acquired them by a transfer from Abdul and Lachman, that they were in possession for a period longer than 12 years before the date of the partition and that the partition did not at all interfere with the rights of defendant 2 to remain in possession.

The learned Munsif held that the defendants acquired plot No. 841 from the original tenant Abdul by an exchange, but he disbelieved the story of the defendants about their having purchased plot No. 842 orally from the previous tenant Lachman. It should be observed here that one time these plots were homestead plots in possession of Lachman and Abdul as is clear from the record of rights which is to that effect. The learned Munsif then pointed out that no objection was taken on behalf of the defendants at the time of the partition when the Batwara Officer passed an order to treat the plots as being in the possession of the landlords as uncultivated land or as gairmazrua. The learned Munsif also found that the building and the well were constructed by the defendants between 1931 and 1983 during the pendency of the batwara proceedings. He rightly observed that the suit has arisen on account of the mistake of the parties to bring to the notice of the Batwara Officer that the building and well were constructed by the defendants and the failure of the Batwara Officer to consider this question. He, therefore, thought that the plaintiffs should be directed to move the Batwara Officer for the assessment of rent of plots Nos. 841 and 842, but as a civil Court he felt he could not interfere in the question of allotment and the assessment of rent could not be made by him. Accordingly he dismissed the plaintiffs'' suit.

Against this decision there was an appeal to the learned Subordinate Judge who confirmed the decision of the learned Munsif but with variation in some important particulars. The learned Subordinate Judge did not agree with the first finding of the trial Court and held that the story of the defendants that they purchased plot No. 842 was correct. The learned Subordinate Judge does not appear to have discussed the oral evidence of the defendants on whom the onus lay which was disbelieved by the trial Court. But he came to this conclusion on a consideration of the circumstances in the case. This finding of fact appears to be unsatisfactory. But however unsatisfactory, it is a finding of fact and cannot be successfully assailed in second appeal.

With regard to plot No. 841, the learned Subordinate Judge agreed with the trial Court and believed the story of the exchange especially because plot No. 841 was in possession of the defendants from before the partition by the Collector. The attention of the learned Subordinate Judge was then drawn to a decision of this Court where the case relied upon by the trial Court Raziuddin Hussain v. Taharat Hossein (12) 16 C.L.J. 19 was expressly dissented from. He, therefore, held that the trial Court was in error in directing the plaintiff''s to move the Batwara Officer to fix a rent for these lands u/s 64, Estates Partition Act. The attention of the learned Subordinate Judge was also drawn to the decision in Jainath Singh and Others Vs. Ramadhin Singh and Others, . But he thought that the case would not help the plaintiffs because (to use his very words)

in the present case the persons whose actions according to plaint may be regarded as against the allotments under the Estates Partition Act are the defendants. Had the case of the plaintiffs been against the allotments under the Estates Partition Act the suit would not have been maintainable but this does not mean that the civil Court had no jurisdiction to enforce the allotments made by the Batwara Officer under the Estates Partition Act.

It is difficult for mo to understand what the learned Subordinate Judge intended to convey by these observations. Towards the end of his remarks the learned Subordinate Judge thought that by the operation of Section 22 (2), Bihar Tenancy Act, as these defendants had acquired the plots in question from the original tenants before the partition of 1929 they wore entitled to retain possession of these lands even after these lands had been allotted to the share of the plaintiffs. In the result he dismissed the appeal--hence the second appeal to this Court.

In my opinion the matter is concluded by the decision in Jainath Singh and Others Vs. Ramadhin Singh and Others, which follows a number of other decisions of this Court. In that case the plaintiff had instituted a suit to eject the defendants from certain lands which had been allotted to him in a collectorate partition between himself and the defendants who were cosharers. The land in dispute was situated on the northern side of survey plot No. 434 and the southern portion was allotted to the defendants. The partition took place under chap. 8, Estates Partition Act. The defendants'' case was that they had their dwelling house in the northern portion of this plot and, therefore, the plaintiffs were not entitled to eject them. The trial Court, relying upon a decision of this Court in Kesari Sahal Singh v. Hitnarayan Singh AIR 1920 Pat. 228 decreed the suit of the plaintiffs. The lower appellate Court reversed the decision of the trial Court and directed the Munsif to request the Deputy Collector to assess the rent payable in perpetuity in respect of the land u/s 64, Estates Partition Act. (There is a slip in the judgment as reported, Das J. who delivered the judgment, is reported to have said that the suit of the plaintiff was "dismissed." This statement appeared to contradict the other portions of the judgment. We sent for the original record, and on a perusal of the judgment of the trial Court it appears that the suit of the plaintiff had been decreed and not dismissed.) When the matter came up in second appeal to this Court, Das J. pointed out that Section 119, Estates Partition Act, constituted a complete bar to the suit.

Earlier, in the course of the judgment, it was observed that when a partition takes place under Ch. 8 of the Act if a dwelling-house belonging to a proprietor is situate on any land which it may be necessary to include in the separate estate of another proprietor, then it is only by the operation of Section 64 that the owner of the house can be allowed to retain occupation thereof with the buildings and grounds immediately attached thereto, upon agreeing to pay rent annually in perpetuity. It was also pointed out that unless the partition officer has recourse to the provisions of Section 64, the partition which has been completed under Ch. 8 cannot be interfered with by the civil Court because Section 119 of the Act provides that no order made under Ch. 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. "The Act, itself," observed Das, J.,

provides that orders passed in the course of partition proceedings are liable to challenge by appeals, second appeals, and ultimately by revision applications to the board of revenue. It is clear that the object of the Estates Partition Act is that all matters arising out of batwara proceedings should be dealt with by the revenue authorities and not by the civil Courts, and Section 119 is clear and precise on this point.

Accordingly he allowed the appeal, set aside the judgment and decree of the lower appellate Court and restored the judgment and decree passed by the trial Court. In a later case Bhairo Singh and Others Vs. Rai Shamsundar Prasad and Others, , a Division Bench of this Court came to the same conclusion. They pointed out that the civil Court cannot set aside or alter a partition which has already been effected by a Court of competent jurisdiction and that it cannot be said that the revenue Court acted without jurisdiction when it adopted a view which did not agree with the conclusion of a civil Court in a later decision. In that case the plaintiffs as cosharer landlords of a village were parties to a partition proceeding before a revenue Court and were allotted their due share of the assets of an estate which were fixed in their presence. Later on, they instituted a suit for a declaration that the lands which were recorded in the Cadastral Survey were their occupancy lands and in the alternative that they had a peculiar right in them u/s 22(2), Bihar Tenancy Act, and for a decree that Rs. 22-14-0 which was payable by them for these lands before the partition may be entered in the batwara papers as the jama of the disputed lands. This Court held that the plaintiffs could not be given a decree in these terms, because this would involve a readjustment of the assets not only so far as the plaintiffs were concerned but also so far as the other cosharer landlords were concerned. In the course of the judgment reference was made to the case in Jhapsi Sao and Others Vs. Musammat Bibi Aliman and Others, and some other cases of this Court. Jhapsi Sao and Others Vs. Musammat Bibi Aliman and Others, has been relied upon by Mr. Hasan Jan in sup-port of his contention and will have to be considered a little later.

In my view, the scheme of the Estates Partition Act is perfectly clear. The revenue Court has jurisdiction to decide, when allotting a patti, as to which lands should go to one party or the other. It has further jurisdiction to decide the character of the lands because it has to fix a valuation in order to equalise the assets in proportion to the share of each co-sharer. In doing so it has to embark upon an elaborate inquiry as to the character of the land, who is in possession thereof, whether it is in the possession of the tenants or of the co-sharer landlords on behalf of all or on their own behalf. Under chap. 6, Estates Partition Act, the Batwara (Officer has to prepare a record of rights which it would adopt for the purpose of the partition. It is enjoined by the Act that the Batwara Officer shall have regard to the survey record if it exists. But he has also the power to alter it so as to bring it in accord with the actual state of affairs which exists on the land at the time when the partition is proceeding. After that is done in the presence of the parties raibandis are fixed and the partition allotment takes place. The co-sharers, who are parties to the partition, have full opportunities to contest, and as a matter of experience they do contest these questions at all possible stages. If, after the parties have adopted a basis or have failed to convince the Batwara Officer to adopt another view, a partition takes place, in my opinion, they cannot afterwards be allowed in a civil Court to contest the legal effect of that partition by urging that the Batwara Officer was wrong when he treated the land as bakasht and that as a matter of fact he should have treated the land as the lands of one of the co-sharers only. It is for this reason that the objection of the parties such as the objection of the defendants in the present case, is repelled on the ground of estoppel. This is clear from the very decisions which were relied upon by Mr. Hasan Jan in support of his argument. In Rai Bahadur Bisseswar Lal Halubasia and Others Vs. Rup Kishore Chaubay and Others, , Jwala Prasad J. dwelt with the argument in these words which I am reading from page 165.

It is then said that in the batwara khatian the defendants allowed the land to be treated as bakasht and hence they are not entitled to claim it as their tenancy right. True, they being co-sharers and parties to the partition proceedings, are estopped from claiming otherwise than the record of rights in that case shows. Upon the basis of the record of rights the valuation of the lands for the purpose of partition were determined and that principle was given effect to in Baldeo Sahai v. Brajnandan Sahay AIR 1918 Pat. 348 and it was held that the co-sharer is not permitted to show that the land entered as raiyati land was, as a matter of fact, zerait land.

This view of Jwala Prasad J., was approved by him when he sat as Acting Chief Justice of this Court with Das J. in Nandkishore Singh v. Mathura Sahu AIR 1922 Pat. 193 , where he expressly draws attention to his views in Rai Bahadur Bisseswar Lal Halubasia and Others Vs. Rup Kishore Chaubay and Others, . In Nandkishore Singh v. Mathura Sahu AIR 1922 Pat. 193 the survey record of rights showed that the plaintiffs were in possession of the purchased holdings u/s 22(2), Ben. Ten. Act, and the batwara khatian which was prepared u/s 49, Estates Partition Act, also showed them in possession as such but after allotment the lands were made over to the defendants as part of their kasht. It was held that Section 119, Estates Partition Act, was no bar to the maintainability of the suit, because the partition proceeded upon the footing that the survey record of rights, which described the lands in possession of the plaintiffs u/s 22(2), was correct. In Baldeo Sahai v. Brajnandan Sahay AIR 1918 Pat. 348 a Division Bench of this Court also took the view that where the plaintiff and the defendant are cosharers the question of estoppel arises if the plaintiffs have allowed the Collector to enter their raiyati holding as defendants'' zirait and they cannot now turn round and say that the Collector was wrong. Mr. Hasan Jan relied upon the case in Bhairo Singh and Others Vs. Rai Shamsundar Prasad and Others, . In that case it was held that, notwithstanding the allotment made by the Batwara Officer, the co-proprietor, who acquired rights u/s 22(2), Bihar Tenancy Act, would not be deprived of those rights merely because a partition had taken place. In the judgment delivered by Ross J., however, it is made clear that the learned Judges proceeded upon the interpretation of the order pronounced by the Board of Revenue when ordering the partition of the estate. The following passage occurs at page 287 of the judgment:

The judgment of the Board of Revenue, whether due to a misunderstanding or not, could not take away any title to the possession of these lands which was in the defendants, and did not purport to do so. Strictly speaking all that it declared was that the lands were bakasht lauds, and this is not denied. But whether they were Bakasht lands of which direct possession would be given to the proprietor of the takhta in which they were situated on partition is another question altogether and is unaffected by the judgment of the Board of Revenue. Nor do I see how Section 119, Estates Partition Act, can assist the appellants.

It will be noticed, therefore, that the order of the Board of Revenue in that case was construed as not deciding strictly or clearly whether the rights of the plaintiffs u/s 22(2), Bihar Tenancy Act, were or were not to cease after the revenue partition. In view of these authorities, I now turn to consider what was the situation on the findings of fact arrived at in this case. The Munsif observes, as I have stated above, that in the note by which a change was ordered to be made in the entry in the record of rights against these two plots it was stated that the land should be entered as a parti-kadim in possession of the landlord. Mr. Hasan Jan invited us to look at the original of Exs. 3 and 4 (a) as he suggested that there was a misunderstanding as to the effect of that entry.

We have looked into the original, and it shows that the change which was proposed to be made in the entry in the record of rights was that the land should now be treated as in actual khas possession of the landlord. On this the Batwara Officer ordered that it should be treated as parti-kadim of the landlord. It is clear, therefore, that for the purposes of the Batwara in the presence of the defendants the Batwara Officer treated the lands in question as being in possession of the landlord. There is no reference anywhere to Section 22(2), Bihar Tenancy Act. Moreover, at the time when the earlier record of rights was prepared the lands were not in possession of the defendant as a co-sharer, because his case is that he has acquired these lands either by a subsequent purchase or exchange. But one thing is clear that he did not put his claim u/s 22(2), Bihar Tenancy Act, before the Batwara Officer which it was his duty to do if he wanted to claim any such rights. The result then is that the defendant allowed the partition to proceed upon the distinct understanding that these lands were simply in the possession of a co-sharer landlord and were liable to be allotted either to him or to the other co-sharer. The lands were allotted to the other co-sharer and, therefore, if there was any house or building on the land he could and should have proceeded to ask the Batwara Officer to take, action u/s 61. This again he did not take for an obvious reason, because on the findings he began to build on the land long after the partition had been approved by the Batwara Officer and while it was on its way to the higher authorities, namely, the Collector, the Commissioner or the Board of Revenue.

Mr. Hasan Jan, however, argues that his clients were entitled to bring a suit for a declaration that the entry in Ex. 3 was erroneous, because he urges that this entry was made under Chap. 6, and Chap. 6 is omitted from Section 119(a) of the Act The fallacy in the argument is that he is in effect trying to upset an allotment which was approved finally under chap. 8 of the Act, and Chap. 8 is distinctly mentioned in Section 119(a). It seems to me that the reason why chap. 6 was omitted from Section 119 was that the rights of any person who was not a party shall not be affected by any entry which a Batwara Officer chooses to make while proceeding under Chap. 6. For these reasons, I am of the opinion that the Courts below were in error in refusing to grant relief to the plaintiffs. The plaintiffs'' right to possession of these lands was complete as soon as the lands were allotted to them by the batwara of 1929 and of which a formal delivery of possession was delivered to them in 1929. The present suit for possession being instituted within twelve years of that date, the plaintiffs are entitled to recover possession from the defendants.

But it was argued on behalf of the respondents that as the defendants have been proved to have constructed substantial structures on the lands and have sunk a well thereon the defendants should not be deprived of their rights to remain in possession. But I do not see any right in the defendants at all. They have deliberately chosen with their eyes open to build and spend some money in sinking a well on the land which they knew and which on the findings I hold belongs to the plaintiffs. There is no equity in favour of the defendants at all.

The result is that I would allow the appeal, set aside the decision of the Courts below and decree the suit of the plaintiffs with costs here and in the Courts below. The defendants are allowed a period of three months from the date of the preparation of this decree to remove the materials of the house and of such part of the well as they would like to remove.

Harries, C.J.

I agree.