Patna High Court
Kulada Prasad Tewari And Ors. vs Sadhu Charan Tewari And Ors. on 19 December, 1917
Equivalent citations: 48IND. CAS.107, AIR 1918 PATNA 352(2)
JUDGMENT Dawson Miller, C.J.
1. This is an appeal from an order of the Subordinate Judge of Manbhum, in which he gave certain directions to the Commissioner as to the manner in which he should proceed in carrying out a decree of the High Court at Calcutta in a partition suit. The plaintiffs were the descendants of one of four brothers who were originally co-sharers of a rent-free estate known as Mauza Kasmar, Pargana Barabhum. The defendants were the descendants of the other three brothers and those claiming through them. In 1910 the plaintiffs instituted a suit for partition before the Subordinate Judge of Manbhnm. Of the other three branches of the family only one, viz. defendants Nos. 9 to 26 offered any serious opposition to the suit. They contended that a partition had taken place between the predecessors of the four different groups some CO years earlier, when the whole of the hasil and certain other plots had been partitioned and that the parties were now in separate and exclusive possession; and further that they (defendants Nos. 9 to 26) had for many years spent money and labour in reclaiming parts of the waste land and in making new cultivable lands and had acquired a title thereto by possession and the plaintiffs' title thereto was barred by limitation. The learned Subordinate Judge decided the suit in favour of the plaintiffs. He found that no earlier partition had taken place and that exclusive possession of the joint lands did not bar the rights of the co-sharers, and ordered a partition accordingly of the whole Mauza except the Kasmar Bandh and Balladhibash lands and gave certain instructions to be followed by the Commissioner in carrying out the partition. The effect of these instructions, broadly speaking, was that the parties found in possession of bandhs and tanks and lands brought under cultivation by their own labour and at their own expense should be retained in possession of the same but that they could not retain possession of ghora and danga lands if the total area in their possession was in excess of the amount they were entitled to as their share in the partition. He further directed that the partition should be based on the map and Khatians of the Survey and Settlement Department except where proved to be incorrect.
2. On appeal by defendants Nos. 9 to 26 to the Calcutta High Court, that Court varied the lower Court's decision by finding that a partition had taken place between the four branches in equal shares some 60 years earlier of the cultivable lands, but that it was impossible on the evidence to determine the precise lands in respect of which the partition took place. The Court also found that parts of the waste lands formerly left joint had been reclaimed and brought under cultivation by the different branches of the family, which accounted for the fact that defendants Nos. 9 to 26 had apparently brought under their control and cultivation more than the share which could be allotted to them upon a partition of the entire village. The High Court agreed with the Subordinate Judge that possession in such circumstances did not give them a good title to ghora and danga lands as against the plaintiffs. The judgment then proceeded as follows;--"One direction, however, must be given in modification of the decree of the Subordinate Judge. He has rightly held that each of the parties should be retained in possession of the lands upon which they have spent capital and labour. In so far, however, as the appellants are concerned, it most be ascertained in the first instance whether they are really in occupation of more lands than they would be entitled to occupy on a partition. We, therefore, direct the Subordinate Judge to appoint a Commissioner to make a survey of all the ghora lands of the village and to ascertain they area thereof. The appellants would be entitled to one fourth share of the total area. If the area thus determined falls short of the area now in their possession they must surrender the excess." Then followed directions that any excess to be surrendered should be the land last occupied, as to which evidence was to be taken and that rather than divide a compact block, the Subordinate Judge should adjust the matter by the payment of owelty money. This direction applied only to. ghora and danga lands and no party was to be deprived of cultivated lands already in their possession.
3. When the High Court's decree came to the Commissioner for execution, a dispute arose as to how it should be carried out and he applied to the Subordinate Judge for instructions. An order was then made by the Subordinate Judge purporting to solve the doubt which had arisen as to whether the ghora and danga lands ordered to be surveyed by the High Court's decree meant those lands only which were not now in occupation or those lands as they originally existed before the partition, and he came to the conclusion that the latter interpretation was correct. But as there might be a difficulty in distinguishing those lands now, he thought the simplest method would be to ascertain first the total area of the village and then the total area in possession of defend-ants Nos. 9 to 26, and gave directions to this effect. From this order the defendants Nos. 9 to 26 appealed to this Court. A pre-liminary objection was taken by the plaintiffs that no appeal would lie from such an order ' and strictly speaking, this objection is probably well founded, but speaking for myself, it seems to me that if it should be brought to the notice of the High Court that its decree is being executed in a manner manifestly at variance with the purport and intention of that decree--and for this purpose the decree must be regarded as a decree of this Court which has succeeded to the jurisdiction of the High Court at Calcutta in this province--then I think that the High Court under its inherent powers of supervision, which are expressly saved by Section 151 of the Code of Civil Procedure, may in a case of this sort take such action for the ends of justice as may be necessary to enforce the proper execution of the decree. We, therefore, decided to examine the order of the Subordinate Judge and the decree of the High Court in order to satisfy ourselves on the point. After reading the High Court's judgment and decree it is quite manifest that whatever the exact meaning of the direction to survey the ghora lands, the whole judgment is' based upon the assumption that the appellants do not occupy cultivated lands in excess of one-fourth of the area of the whole village and that the remaining lands in possession of the appellants are ghora and danga lands. Upon this assumption the Court directed the Commissioner to ascertain first whether the whole of the lands occupied by the appellants including ghora and danga lands exceeded a fourth share of the whole village. Then there is a direction to survey all the ghora, lands which I take to include danga lands as well, and this would involve lands of this description in the appellants' control and possession. A point was raised in the memorandum of appeal that this survey was intended only to comprise ghora and danga, lands as now existing, exclusive of lands originally of this description but now brought under cultivation. The judgment is not very clear on this point. It was conceded, however, by the appellants that it was intended that the whole of the ghora and danga lands, as existing at the time of the previous partition, should be surveyed. It may not, however, be necessary to have a complete survey of these lands if the partition can be effected without this. One matter, however, is beyond dispute. Whatever be the exact intention of the High Court's decree as to the extent of the survey ordered, that decree was based upon the assumption that the appellants were not in possession of more cultivated lands than their 4-annas share which they would be entitled to on a partition, and it must be taken that any excess in their possession beyond their fourth share is to be regarded as ghora and danga lands which are liable to surrender--those last brought into possession being surrendered first. Once the lands in the appellants' occupation are ascertained, it ought not to be necessary to survey more than the amount which they hold in excess of their proper share, if any. This, however, must be a matter for the Commissioner to determine on the spot. Subject to this modification, I think the Subordinate Judge rightly interpreted the decree in the order appealed from. How the lands in possession of the appellants are to be ascertained is not stated by the High Court' and the learned Subordinate Judge directs that in order to determine this the Commissioner should first ascertain the total area of the village and the total area in possession of the appellants. This direction, however, must not be taken necessarily to involve a new survey by the Commissioner of the whole village. He should proceed as far as possible on the maps and Khatians of the Survey and Settlement Department in accordance with clause 4 of the instructions in the Subordinate Judge's judgment of the 22nd August 1910 and otherwise comply with the same in so far as it is confirmed by the High Court's decree. Each party should bear his. own costs.
Chapman, J.
4. I agree.