Sheikh Qamar Hasan and Others vs Saiyid Abas Ali and Others

Das, J.—This in an appeal against a decree of the Subordinate Judge of Saran in a suit brought by the plaintiffs-appellants for a declaration that Mahal Bhawarajpur, Belahi and Mohailpur, Tauzi No. 63 in the District of Saran had already been privately and regularly partitioned with the consent of all the proprietors and that the defendants had no right to get a fresh partition made and that the dismissal of the plaintiffs'' petition objecting to the meaning of a fresh partition by the Collectorate was illegal and that the Patti formed by partition and allotted to the plaintiffs could not be partitioned afresh by the Collectorate.

The plaintiffs'' case is that long ago Tauzi No. 63 was privately partitioned so far as culturable lands were concerned, and that 284 bighas of saltpetre lands, tank, river, etc., which were not capable of being partitioned, were left Ijmal; that four Pattis were formed Patti Madar Baksh 4 annas, Patti Mir Ali and Waris Ali 4 annas, Patti Didar Baksh, Wazir Ali and others 2 annas, and Patti Teg Ali and Eyad Ali 4 annas making in all 14 annas of which it is said Tauzi No. 63 consisted, the other 2 annas of the Mahal being Tauzi No. 62. In 1832 the proprietors applied fir a partition by the Collector and an Amin came and made a regular survey of all the Pattis and prepared a Khesra which was accepted by all proprietors. But on account of some technical defect the partition case was dismissed in 1841; and the Tauzi was not separated, but the pro. prietors continued to be in possession of the lands in their respective Pattis while the Ijmal lands remained joint. The two four annas Pattis Madar Baksh and Teg Ali and Eyad Ali Subsequently became united in a single proprietor and they are now three Pattis of 8 annas, 4 annas and 2 annas in the separate possession of their owners. It is said that in the settlement proceedings of 1895 Khe-wats and Khatians were prepared Patti by Patti. The plaintiffs are the owners of the 2 annas Patti which consists of 290 bighas 11 kathas and 11 dhurs of land. The defendants Nos. 1 to 6 and No. 9 applied to the Collector for a fresh partition and the plaintiffs'' objections under Sections 7.and 77 of the Estates Partition Act (Act V of 1897) were rejected by the Revenue Officers.

The defendants denied that all the lands of Tauzi No. 63 were privately partitioned. It is said that the Batwara proceedings referred to in the plaint were not given effect to and remained incomplete The record-of-rights shows that a, good deal of Abadi and other lands from which income is derived are in joint possession of all the proprietors and that therefore the plaintiffs are not entitled to the benefits of Sections 7 and 77 of the Estate Partition Act. It is also alleged that different proprietors have kept different lands in their occupation simply for convenience of i cultivation. The learned Subordinate Judge found that in the Batwara of 1832 the Shamilat lands were 263 bighas 18 kathas and 16 dhurs, but that the areas given in the cadastral survey and revisional survey were different, and that it is not clear whether the partial Pattibandi of Touzi No. 63 was in respect of lands or tenants. He held that Section 7 of the Estates Partition Act was not a bar to the partition. He gave a modified decree to this extent that the parties are in separate possession of certain lands regarding which he makes a suggestion that this fact may be taken into consideration as far as possible in effecting partition.

The question for decision is whether this interpretation of Section 7 of the Estates Partition Act of 1897 is correct. That Section lays down "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 as he held in severalty as representing his interest in the estate, no partition of the estate shall be made under this Act except,

(a) on the joint application of all the proprietors, or

(b) in pursuance of a decree or order of a Civil Court.

The Revenue Authorities, within whose special jurisdiction the partition of the estates rests, have held the view that this Section is no bar to a Collectorate partition. That opinion is entitled to all respect and the Civil Court will not interfere with the decision of the Revenue Authorities except on the clearest proof that that decision was wrong. It was held in Shah Tojammul Ali v. Musood Ali [1910] Cri.L.J. 291 that Section 7 contemplates a complete partition. Now it is admitted that an attempt was made to have a complete partition between 1832 and 1841 which was not carried out. If there had been a complete private partition before that date it is difficult to see why, all the proprietors joined in seeking a Collectorate partition, the proceedings should have been left incomplete. It is admitted in the present case that a large area of 284 bighas was left Ijmal. This area is practically as large as the 2 annas Patti of the plaintiffs; and, in view of this outstanding Ijmal property, it cannot, I think be said that there had been a complete partition of the land of the estate by private arrangement. It may be that, Section 7 does not require that all the lands of the estate should have been divided but at all events the division by private arrangement must have been substantially of the whole estate. In view of the comparatitely large area that was left undivided, some of which is rent producing land, I do not think that it can be held that the revenue Authorities were in error in holding that a Collectorate partition could be made.

I would therefore dismiss this appeal with costs.

Ross, J.

I agree.