Patna High Court
Manno Chaudhry And Ramdin Singh ... vs Munshi Chaudhry on 21 November, 1917
Equivalent citations: 43IND. CAS.393, AIR 1918 PATNA 320
JUDGMENT Roe, J.
1. These appeals arise out of a decree of the Subordinate Judge of Darbhanga, decreeing the suit of the plaintiff for a declaration that by reason of a former private partition of the Estate Nos. 4999 known as Harshankerpur Jiwan, an order of the Board of Revenue directing a revenue partition to proceed dated the 31st July 1912 is bad, and an injunction restraining the defendants from proceeding further with the partition on the strength of that order. It is net suggested that the suit as framed is not maintainable. It is said only that the Board of Revenue will not be bound by a decision of this Court. It is clear that Section 23 of the Estates Partition Act is no bar to the present proceedings, but we are confident that upon an application made to the Civil Court for a relief of the character indicated in the plaint in the present suit, made within four months of an order under Section 29, the Board would direct further proceedings to be stayed. We do not feel it necessary to lay down as a rule of law that an order under Section 2a9 should be regarded as having been made upon that date when its finality is assured by the decision of the Board. These are not matters on which we have jurisdiction to pass orders, and we do not propose to do so.
2. Upon the merits of the case it appears to us that it cannot be for a moment denied that there has been within the meaning of the Board's Rulings contained in Rules 5 to 7 under Section 7 at page 7 of the Partition Manual a definite division of the estate Tauzi No. 4099 into separate pattis enjoyed for very many years by the several proprietors without interference by one with the other. It is shown conclusively by the Cadastral Survey papers that the estate was held in separate pattis in 1897. The date of the application for the partition was 1911. For fifteen years the parties held their lands in accordance with the entries contained in the Cadastral Survey. The fact that the parties acquiesced in the Cadastral Survey for this length of time is in our view conclusive proof that even if they were not consulted at the time of the original partition, they acquiesced in the original partition and have been holding their lands for more than twelve years in accordance with the original partition. As a point of law we take it that where it is shown that the parties have acquiesced in the result of a partition, it must be presumed that they or their predecessors-in-interest were parties to the original partition. We cannot allow share-holders in an estate to go on year after year giving the other side occasion to believe that they accepted the arrangements made, and then when the other side has made improvements in that part of the property which has fallen to its share, to claim the benefits of the improvements on the ground that there is no documentary evidence that they acquiesced in the original arrangements. We have read with care the arguments given by the Hon'ble Board in their order directing that the partition should proceed. This order we do not regard as evidence in the case, but we feel strongly that this Court should not make a decree in dissonance with a decision of the Hon'ble Board without fully considering and giving every respect to the reasons advanced in the making of that decision. The order of the Board is apparently based upon a consideration that the alleged partition of the estate divided into, two shares of eight annas each is lost in antiquity and it is impossible to say who were parties to that partition. It is further stated that since that partition there have been created innumerable new interests and it is now necessary for these interests to be considered. With the greatest respect to the Hon'ble Board we would point out that it is to be presumed that all such new interests as have been created since the original division of the estate amount merely to devolution of the interests of the two partite who made the original partition. We must presume further that the holders of these new interests are representatives of the original partitioners, and we must hold that representatives in-interest of the original partitioners are bound by the acts of the original partitioners. We are satisfied upon the evidence on the record that from time immemorial the parties have been holding these estates in separate shares, and the fact that the original partition proceedings have been lost in antiquity is not in our view a reason for disturbing divisions which have existed for so long a period. We agree with the learned Subordinate Judge that the existence of a private partition is a bar to the re-partition of property, and are satisfied that the plaintiff is entitled to a decree be has obtained. We note that one Manno Chaudhry, the appellant in No. 331, is not represented at the hearing and we, therefore note that the definite statement made by him in the civil suit brought in the year 1872 has not been considered by us in evidence as against the appellant Ramdin Singh Chaudhry in First Appeal No. 483. Our decision is based on the presumption arising out of the Bengal Tenancy Act. The entries in the finally published record in 1897 must be presumed to be correct until proved by evidence to be incorrect. The evidence on the record fails to show that the division of 1897 was incorrectly recorded by the Cadastral Survey party. The appeal is dismissed with costs, in favour of the plaintiff-respondent only. There will be no costs as between the appellants in First Appeal No. 331 and the appellants in First Appeal No. 483.
Imam, J.
3. I agree.