Narasingh Thakur and Others vs Bishunpergash Singh and Others

Dawson Miller, C.J.—This is an appeal on behalf of the defendants under the Letters Patent from a decision of Mr. Justice Jwala Prasad affirming a decision of the District Judge of Muzaffarpur which in turn affirmed a decision of the Munsif.

The appellants who are the defendants in the suit and the respondents who are the plaintiffs were together the proprietors of mauza Bhadai. In the year 1913 the defendants applied to the Collector for partition of the mauza. The plaintiffs raised objections u/s 7 of the Estates Partition Act contending that the estate had already been partitioned by private arrangement formally made between the proprietors many years ago and that consequently the Collector was not competent to effect a partition again. This objection appears to have been heard by the Collector and dismissed on the 3rd February, 1913. On the 5th September, 1913, the plaintiffs instituted the present suit claiming a declaration that mauza Bhadai had already been formally partitioned among the proprietors with their consent, that they had been in separate possession thereof accordingly, and that the mauza could not in law be partitioned under Act V of 1897. They further asked for an injunction restraining the defendants from proceeding with the batwara before the Collector. The bearing has been delayed by the fact that the plaint was filed in the wrong court originally and was not presented in the proper court until 1916. Nothing, however, turns upon that in this appeal.

The main defence in the suit was that there had been no previous partition. It appears that a considerable volume of evidence was called on this subject and the Munsif came to a decision of fact that in or about the year 1870 there had been a private partition and that since that date each of the proprietors had been in separate possession of the patti allotted to him on that occasion and collecting separately the rents from the different; tenants throughout the area of which he was in possession. There was apparently no actual document showing the terms of the partition but upon the evidence produced much of which was documentary, including the record-of-rights published 20 years ago, it appeared to the Munsif that the case was amply proved that there had been a partition in or before the year 1870 and that ever since then the parties had acted thereunder.

On appeal the learned District Judge took the same view and dismissed the appeal.

On second appeal to this Court Mr. Justice Jwala Prasad come to the conclusion that the question was one of fact and that the facts had been found by both the lower courts and he saw no reason in law for disturbing those findings. He adds at the end of his judgment that it was faintly suggested that the suit, having been brought more than 4 months after the order of the Collector, made u/s 29, declaring the estate to be under partition, was barred by limitation u/s 25 of the Estates Partition Act. That Section in the opinion of the learned Judge had no application to a suit of this nature, and having found that the proceedings adopted by the Collector under the Estates Partition Act were ultra vires he held that there was no bar to the present suit for a declaration and injunction. He accordingly dismissed the appeal with costs.

From that decision the present appeal has been brought before this Bench under the Letters Patent. The point which has been argued before us is a point which was not taken either in the trial court or before the learned District Judge on appeal, and it was only faintly argued before the learned Judge of this Court on second appeal. It has, however, been most strenuously argued before us to-day. The question arises in this way. Section 7, part of Chapter II of the Estates Partition Act, provides that where the lands of an estate have been divided by private arrangement formally made and agreed to by all the proprietors, and each proprietor has, in pursuance of such arrangement, taken possession of separate lands to be held in severalty as representing his interest in the estate, no partition of the estate shall be made under the Act except in certain cases which are not applicable here. Section 25 which is relied upon by the appellants forms part of Chapter IV. It provides that no suit instituted in a Civil Court, after the lapse of four months after the Collector has 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 the Act for the partition of the estate. It was contended in the first place that Section 25 was an absolute bar to the present; suit. That contention, however, cannot possibly prevail. Assuming that Section 25 has any application at all, the only effect of it would be a suit instituted in the Civil Court would not have the effect of staying the progress of the proceedings before the Collector. There is nothing in the Section which is a bar to a suit proceeding in the Civil Court. The main question, however, which was argued before us was whether Section 25 had any application at all to a suit such as the present where the plaintiffs claim that under the provisions of Section 7 of the Act the Collector had no power whatever to partition the lands in question. Having regard to the wording of Section 25 which I think must be interpreted in the light of the preceding Sections of Chapter IV, there is, I think, a great deal to be said for the view that Section 25 has no application to a suit such as the present, but only applies to suits by the class of persona referred to in Section 23, that is to say, persons claiming a right or title in or to a parent estate and not to suits by persons objecting to any partition at all. Chapter IV begins by stating how applications for partition shall be made and what they shall contain. Provision is then made for publishing notifications inviting persons interested and claiming any proprietary right in the estate and objecting to the partition to come in and assert their claims and objections. Section 22 gives the Collector power to reject the application for partition, if he thinks fid, on considering any objection thereto. But by Section 23, if the objection raises any question of right or title or of extent of interest as between any applicant and any other person claiming to be a proprietor of the parent estate, then the Collector may hold an enquiry and, if satisfied that the applicant is in possession of the interest claimed, he may either direct a partition of his interest or postpone proceedings for four months. The object of the postponement appears from Section 24 which provides that at the expiration of four months the Collector shall resume the proceedings unless the objector or some other person has obtained an order from a Civil Court directing that such proceedings be stayed, or shows that a suit has been instituted before a Civil Court to try some question of such a nature as to lead the Collector to think that proceedings should be stayed pending the trial of the suit. Then follows Section 25 already referred to. It would appear, therefore, having regard to the Sections which I have referred to that there are strong grounds for holding that the words in Section 25 which relate to suits by persons claiming any right or title in or to a parent estate refer back to the persons and the relief claimed mentioned in Section 23 and that Section 25 relates only to claims by such persons. In the present case the claim is not one of that nature. It is a claim by one of the proprietors claiming not a right or title in the parent estate, but that there is in fact no parent estate because the estate had already been partitioned and, therefore, that the jurisdiction of the Collector to effect a partition no longer exists. This appears to be in accordance with the view of the Calcutta High Court which had to consider the question as it arose under the previous Partition Act, which for this purpose is practically similar, in the case of Ananda Kishore Chowdhry v. Daije Thakurain (1909) 36 Cal. 726. There is, however, a decision of this Court in Thakur Badri Narayan Singh v. Subhkaran Misser (1920) 2 P.L.T. 130 which so far as one can gather from the somewhat meagre report of the case appears to take the view that Section 25 of the Act would be sufficient in a case like the present to prevent an injunction being granted staying the parties from proceeding with the partition. It is, however, not necessary, in my opinion, to decide this point because the facts necessary to establish the appellant''s case have not bean proved. Before they can establish their contention that Section 25 applies they must show chat the suit was not instituted within 4 months after the order was made by the Collector u/s 29. In the present casa, as the point was not taken in the trial Court and as there was no issue framed about it, it is hardly surprising that the evidence upon this question is somewhat meagre. The only evidence we have is than on the 3rd February, 1913, the plaintiff''s objection u/s 7 was dismissed by the Collector. Then we know that on the 5th June in the same year the present suit was instituted. There is, however, nothing on the record to show at what date, if at all, an order was passed by the Collector u/s 29. We have been asked to assume that such an order would be passed immediately the plaintiff''s objection u/s 7 was rejected but that by no means follows. There may, for aught we know, in the partition proceedings have been objections by other persons and these clearly would have to be disposed of before any order could be passed u/s 22. In fact there is no evidence at all as to when the order u/s 29 was passed. It seems to me, therefore, that the defendant''s objection fails in limine because they have not proved the facts upon which such objection could be established.

The only other point which was argued before us was that the findings of fact of the lower appellate court were not sufficient to justify the court in arriving at the conclusion that there had been a previous partition. It is quite true that no formal document showing partition had been proved to the case, but I entirely agree with the learned District Judge in the view he took that the production of such a document is not necessary in order to establish a previous partition. Such a partition may well be presumed from the facts which are proved in the case and which show that from the year 1870 the proprietors of this estate have been in separate possession of their pattis and have been separately collecting the rents throughout the areas allotted to them from the different tenants, and there are a number of documents which apparently take it for granted that, the different proprietors ware in separate possession and holding the different pattis in severalty as representing their respective interests in the estate. As stated by the learned District Judge the separate pattis have been recognised for so long both by the maliks themselves and by the tenants that it seems almost certain that there was a partition and not merely a mutual arrangement to enjoy ijmali property in the most convenient way. The question was whether upon these findings the learned District Judge was entitled to presume a partition. In my opinion he was so entitled and the appellant''s contention to the contrary fails. The result is that the appeal must be dismissed with costs.

Mullick, J.

I agree.