Indian Kanoon - Search engine for Indian Law

(b) when a question of title is raised, the Revenue authorities shall not proceed with partition, and

(c) the Revenue authorities shall proceed with partition when such question of title, which is raised, has been decided by a civil suit.

7. A question of title is raised within the meaning of this proviso when the applicant's right to partition is disputed. The first ingredient is unqualified. It comes into play both when the question of title is genuine or bogus, strong or weak, bona fide or mala fide. The second requirement of the proviso is that the Revenue authorities have just to stay their hands as if they will literally shut up the case to be reopened when the question of title has been decided by a civil suit. The proviso does not empower or authorise the Revenue authorities to give any direction either as to the person who should go to the civil court or as to the reason to be given for such direction or as regards the time within which a party should approach the Civil Court, nor the consequences of non-compliance with any such direction given by any Revenue authority. Clearly enough the Revenue authorities have no jurisdiction to give any such direction. All that they have to do is to tell the parties that they could not proceed with the partition proceeding unless the question of title raised has been decided by a civil suit. That is all. It will then be up to that party which wants the revenue proceedings for partition to be reopened, to file the civil suit. However, it is not for the Revenue authorities either to direct or to advise such party to institute a civil suit. If such party is desirous that the partition proceeding be reopened, it will bring a civil suit. If it does not, there is no consequence except that the proceedings for partition before the Revenue authorities will be abortive. It cannot be dismissed on merits for the inaction, that is for not going before the civil Court.

8. Shri Chandmal Mehta, learned counsel for Mangilal, strenuously argues that unless the course adopted in Paitram's case (1968 Jab LJ 304) (supra) is followed, the section will be rendered otiose because then in every case the defendants in order to defeat the application for partition will just raise any kind of flimsy or frivolous dispute of title. In such a case the Revenue authorities could not blindly and mechanically stop the partition proceedings. There should be an application of the mind to see the nature of the dispute and whether prima facie there is any worth in it.

(v) The application for partition will in such case remain in abeyance until the question of title is decided. The Revenue authority may for statistical purpose consign the proceeding to the record room to be recalled when the decision of the Civil Court is received. The application for partition cannot be dismissed.

(vi) When the decision of the Civil Court is received, the Revenue authorities shall proceed to make the partition having regard to the decision of the Civil Court.

(vii) Paitram v. Board of Revenue (1968 Jab LJ 304) was not correctly decided in so far as it was held that a direction ought to be given to one of the parties.

16. Since the entire case has been referred to us, applying the above principles, we quash the order of the Board of Revenue and the other Revenue authorities and direct that the case shall go back to the Naib-Tahsildar to proceed with Mangilal's application in the light of this order. The parties shall bear their own costs. The amount of security deposited by the petitioner shall be refunded to him.

17. Before we leave this case we desire to say that as argued by Shri Chandmal Mehta a great hardship is likely to result to a bona fide applicant, who has a just claim for partition and who is entered in the revenue records as a Bhumiswami, if the proviso to Section 178 stands as it is. We quite see that every clever defendant, who may be in possession of the entire holding, would just raise any flimsy or frivolous dispute as to the applicant's title, thereby to defeat or delay the partition proceedings. It will not he a reasonable law that the applicant should be pushed to the Civil Court to seek a declaration of his title or to get his share determined even when the entries in the Revenue record fully support his case, nor will it be a just law that the Tahsildar should enter into any inquiry or record a finding to the effect in whose favour there is a prima facie case, and determine which of the parties should approach the Civil Court for a declaration of title. The Tahsildar should not be required to enter into a controversy regarding title which may involve the application of the mind in the light of various civil enactments. Having regard to the sanctity of the revenue record the Tahsildar would have, but for the proviso, ordinarily proceeded to make the partition according to the revenue record, and the party who would be adversely affected if the partition were made according to the revenue record, would have gone to the Civil Court. Therefore, we think that a course just and fair to all concerned would have been this : As soon as a question of title is raised, the Tahsildar should make an order staying the proceedings before him. If no civil suit is instituted within a certain specified time from the date of the stay order, the Tahsildar should proceed to make the partition in accordance with the entries in the revenue records. This, however, we cannot say by way of interpretation of the section. We have our own limitations. The Court must not arrogate to itself the functions of the Legislature. Our function is merely to interpret the law according to the principles of interpretation of statutes and to enforce the law as it is. The Legislature can in no time redress the visible hardship by a simple amendment.