Patna High Court
Chaudhury Kesari Sahai Singh vs Babu Hitnarayan Singh And Ors. on 11 March, 1920
Equivalent citations: 56IND. CAS.149, AIR 1920 PATNA 228
JUDGMENT Das, J.
1. The dispute between the parties relates to two or chards plots Nos. 3090 and 2300, which were in the possession of the plaintiff bat which in a Collectorate partition between the parties were allotted to the defendants. The plaintiff's case is that it was agreed between him and the defendants that he should retain possession of these two plots on paying rent for them to the defend-ants and that the defendants should likewise retain possession of two other plots which were in the possession of the defendants but which were allotted to the plaintiff on paying rent to the plaintiff. Accordingly on the 26th August 1913 a petition to that effect was filed before the Batwara Deputy Collector, who, however, failed to record an order on the petition. After delivery of possession had taken place in pursuance of the partition effected by the Deputy Collector, the parties realised that no order had been recorded on their petition of 26th August 1913, and accordingly on the 10th October 1914 the parties went to the Deputy Collector and asked him to pass the necessary order on their petition. The Deputy Collector on that day passed an order confirming the parties in possession of their respective plots. The plaintiff's case is that this order should have been noted in the Batwara papers under Section 65 of the Estates Partition Act, After a decision against him under Section 144, Code of Criminal Procedure, the plaintiff moved the Revenue Courts, with-out success, to have the order of the 10th October 1914 made part of the partition proceedings. He now asks that the compromise between the parties may be given effect to and that his possession over plots Nos. 3090 and 2300 may be confirmed and maintained. The learned Subordinate Judge, being of opinion that the Civil Court has no power to set aside the allotment made by the Revenue Courts under the Estates Partition Act, has dismissed the plaintiff's suit.
2. In this Court an ingenious attempt was made by Mr. P. K. Sen on behalf of the appellant to get rid of the effect of Section 119 of the Estates Partition Act. He argued that the plaintiff in no way challenged the decision of the Revenue Courts, he merely invited this Court to maintain the order passed by the Deputy Collector on the 10th October 1914. In order to appreciate the futility of this argument it is necessary to see whether the Deputy Collector had any power under the Act to pass the order which he did on the 10th October 1914.
3. It appears that the making of partitions is the duty of the Deputy Collector under the Act. He has jurisdiction to make the partition under Chapter VIII of the Apt and in making the partition he is to be guided by the provisions of Chapter IX. Under Chapter IX the Deputy Collector has power, if he finds it necessary to allot gardens and orchards belonging to one proprietor to another proprietor, to provide that the first mentioned proprietor shall retain occupation thereof upon agreeing to pay rent annually in perpetuity to the second mentioned proprietor. This he could do under Section 65 of the Act and as part of the partition proceedings. Now it seems to me that once the Deputy Collector has made the partition and has submitted the same for the sanction of the Collector, he loses all control over the partition proceedings except for the purpose of making such alterations as may be necessary in the partition paper or map in accordance with the decision of the Collector under Section 58 of the Act or preparing a new partition paper or map in accordance with the orders passed by the Collector. His further powers under Section 59 of the Act are merely for the purpose of Dairying into effect the partition already made, not for the purpose of altering anything already done by him, It will be seen that he submitted the partition proceedings to the Collector on the 26th August 1913. The Collector approved of them on the 1st October 1913 and the Commissioner sanctioned them on the 23rd February 1914 and the Board confirmed them on the 5th May 1914 and delivery of possession took place on the 25th September 1914. The only order which the Deputy Collector passed on the petition of the 26th August 1913 was this: "Put up to-morrow for orders." He clearly had no jurisdiction to deal with the matter after be submitted the partition proceedings to the Collector and in my view the order passed by him on the 10th of October 1914 was wholly without jurisdiction.
4. What does the plaintiff substantially seek in this suit P The allotment has been made and is without reservation of any kind. He now asks this Court to declare that though plots Nos. 3090 and 2300 have been allotted to the defendants, still he is entitled to retain possession of them upon agreeing to pay rent for them to the defendants. In other words, he is asking this Court to disturb the partition already effected between the parties. He relies upon the order passed by the Deputy Collector on the 10th October 1914. His argument is that the Deputy Collector is competent to pass an order under Section 65 without limitation of time. In my view this is incorrect. He can only pass an order under Section 65 during the making of partition and before he has submitted the same for the sanction of the Collector. In my view the plaintiff is clearly asking the Court to disturb the partition already effected. This Court has no power to do so.
5. The nest argument of Mr. Sen was that the parties having agreed on the 10th of October 1914 that they should be tenants of each other in respect of the plots of which they were in possession, this Court can give effect to that agreement. In the first place it may be pointed out that this is not the suit of the plaintiff. In the second place the agreement between the parties is contained in the petitions which the parties filed before the Deputy Collector on the 6th August 1913. In my opinion no oral evidence is admissible to contradict or vary that agreement as contained in their petitions. The petition of the plaintiff was to this effect: "Your petitioner's two orchards whereof plot numbers are given below have been allotted to the Takhta of Babu Hit Narayan Singh, Malik. If the Takhtas (formed by your honour) be maintained, the rent of the aforesaid numbers (plots), i. e., of both the garden be fixed and proceedings under Section 65 of the Estates Partition Act with respect to your petitioner's orchards may be taken and orders may be passed with respect to the same." It is clear, therefore, that the only agreement between the parties was that the Deputy Collector should take proceedings under Section 65, which is something quite different from the agreement pleaded in the suit. The validity of that agreement would depend on the question whether the Deputy Collector had at that time power to take proceedings under Section 65 of the Act. That question I have already decided. In my view, the plaintiff has not established that there was an agreement between them that they should be tenants of each other in respect of the orchards which are in their possession.
6. In my view the learned Subordinate Judge has taken an entirely correct view of the matter. I would accordingly dismiss this appeal with costs.
Adami, J.
7. I agree.