Sobhnath vs Shridat and Others

S.N. Singh, J.—This suit for partition of Bhumidhari land u/s 176 of the U.P. Zamindari Abolition and Land Reforms Act was filed in the year 1957. The Civil Court determined the share of the Plaintiff as 1/6th. It appears that thereafter the Plaintiff applied for the preparation of final decree and a Commission was issued to prepare a lot of the Plaintiff''s share. Lots were prepared by the Commissioner of the Court. Objection to the report of the Commissioner was filed. It was considered by the Munsif and rejected. The Commissioner''s report was confirmed and a final decree for partition was prepared in terms of the proposal made by the lower appellate court and this appeal was also dismissed by the lower appellate court on 18th December, 1961.

In appeal before me the only point urged by the learned Counsel for the Appellant is that the proceedings taken by the learned Munsif after the order passed by him declaring the share of the Plaintiff was without jurisdiction.

In my view the proper procedure for the learned Munsif was to send the case to the Collector for effecting separation of the agricultural plots, as the same could only be done by the revenue court.

Section 182B unamended reads:

Subject to the provisions of Sections 178 to 182 the division of a holding or the separation of the share therein of a bhumidhar or sirdar shall be made by the collector in accordance with the principles that may be prescribed.

It is apparent from this provision that the Civil Courts after declaring the rights of the parties should send the case to the competent revenue court for effecting partition. Such a procedure is also provided by Order XX Rule 18 read with Section 54 of the Code of Civil Procedure.

In a partition case of agricultural holdings, the Civil Court is competent to pass a decree declaring the shares of the parties and thereafter every thing has to be done by the revenue court. The Plaintiff misconceived his remedy and filed an application for preparation of the final decree before the learned Munsif. On receipt of such an application the learned Munsif instead of appointing a Commissioner to proceed with the partition, should have sent the case to the Collector for necessary action as provided by law. Procedure adopted by the learned Munsif was illegal and the final decree prepared by him cannot stand. Since the Munsif had no jurisdiction to partition the agricultural plots, any order passed by him is without jurisdiction. The appellate order which has affirmed the decision of the trial court is also without jurisdiction. This view of mine is supported by Ningappa Balappa and Others Vs. Abashkhan Gouskhan, ; Shree Rajah Mantripragada Venkata-ragava Rao Bahadur Zamindar Garo and Others v. Sri Raja Mantripragada Venkata Hanumatha Rao Bahadur Zamindar Garu and Others AIR 1945 Mad. 336; and Dharam Singh Satawan Singh v. Deo Singh Sitaiam AIR 1950 Nag. 102.

In the result, I allow the appeal, quash both the orders of the Munsif and the Civil Judge and direct the Munsif to send the case to the Collector for effecting partition in accordance with law. Since this point had not been raised before any of the courts below, I direct the parties to bear their own costs.