Radha Kishun and Another vs Bhola Chaudhuri and Others

Dhavle, J.—This is an appeal by defendants 23 and 29 against the final decree in a suit for partition of Touzi No. 7543. The preliminary decree specified the shares of the various parties. An appeal was preferred against the preliminary decree and dismissed by this Court. It was then found that the shares given in the decree totalled more than 16 annas. They were therefore corrected according to Register D, giving a total of slightly less than 16 annas. Against this amendment these defendants moved this Court. They succeeded on the ground that the lower Court had no jurisdiction to alter the shares given in the preliminary decree after it had been confirmed in appeal by this Court. Boss, J., in allowing the application of these appellants on that occasion observed that

it will be open to the parties to apply as they may be advised to the High Court either by way of appeal or revision, whichever course may be applicable in the circumstances.

Neither of these courses was however adopted by any of the parties. Ultimately the final decree was drawn up by the lower Court on the commissioner''s report, after disposing of the objections made by these defendants-appellants, and the order passed on that occasion is the basis of the present appeal. The objections that were taken by the defendants were threefold, one relating to khata 196, another to plot No. 3513, and the third to three other plots.

The lower Court found that there was no substance in any of these objections. Mr. Mitra for the appellants began his argument by urging that the appellants had since obtained a Collectorate partition and that the partition made by the civil Court ought to be replaced by the partition made by the Collector. He represented that this would save confusion, and he went on to argue that Section 54, Civil P.C., left the civil Court no option to effect the partition decreed by it through any agency other than the Collector. This last contention must clearly be overruled. The point was considered by a Full Bench of the Calcutta High Court as long ago as 1897 in Jogodishury Debea v. Kailash Chandra Lahiry (1897) 24 Cal. 725 when it was ruled that Section 265 (now Section 54), Civil P.C., does not apply to a suit for partition of a revenue paying estate when no separate allotment of revenue is asked for.

It is not contended that in the present case any separate allotment of revenue was asked for. Learned Counsel also referred to Section 26, Estates Partition Act (Bengal Act 5 of 1897), but it is quite clear that this section has no application because the partition decree of the civil Court was admittedly passed before the estate was declared u/s 29 to be under partition. Reference was also made to Section 12 of this Act, which provides that:

any civil Court which has made a decree for the partition or for the separate possession of a share of an undivided estate paying land revenue to the Government may, notwithstanding anything in Section 265 (now Section 54), Civil P. C, cause the decree to be executed in the manner prescribed in Section 396 (corresponding to Order 26, Rule 14) of that Code.

This section again is against the appellant''s contention. Mr. Mitra in substance asked this Court in appeal to vacate the decree of the lower Court on the ground of the partition made by the Collector; but he has entirely failed to show that there is any authority at all for doing so. It is clear that if the CPC and the Estates Partition Act, be read together, there is no warrant whatsoever for superseding the decree of the civil Court by a partition subsequently obtained from the Collector. Learned Counsel also contended that the jama fixed for khata 196 is arbitrary and deprives the appellants of their proper share of the correct jama.

It appears however that the jama of the khata was kept intact in accordance with an agreement between all the parties.

He has also urged that the decree under appeal as it stands will be incapable of execution because the shares specified in it give a total of more than 18 annas. That seems to be a fact, the parties having never troubled to get the total put right. The obvious remedy would be a proportionate reduction of all the shares so as to give a total of 16 annas.

This in fact is the result which the appellants seemed anxious to avoid, and it was suggested by learned Counsel that evidence may now be taken regarding the correct shares of each of the parties. The stage for doing so however has in my opinion long passed. The points urged before us fail, and I would dismiss the appeal with costs.

Wort, J.

I entirely agree.