Gulam Chand vs Dukhi Rai and Others

Das, J.—Two questions have been argued before us first, that the learned Additional District Judge erred in coming to the conclusion that the proper course for the plaintiff appellant was to apply for partition before the Collector and secondly, that the learned Additional District Judge erred in thinking that there were not sufficient materials on the record for giving the plaintiff the appropriate relief in the circumstances of the case. So far as the first point is concerned I have come to the conclusion that the argument of the learned Vakil for the appellant ought to prevail. This is not a suit for partition of revenue paying lands. The plaintiff does not ask the Court to separate the Government revenue as between the plaintiff and the defendants he invites the Court to fix the liability of the defendants in regard to the Government revenue for which the plaintiff is liable to the Collector. This is a suit of a Civil nature and I know of no enactment which prevents the Civil Court from taking cognizance of a suit of this nature. The first contention of the learned Vakil for the appellant must prevail. But so far as the other contention is concerned I am of opinion that the finding of the learned District Judge is a finding of fact and is binding on us in second appeal. The learned Judge says "there is no sufficient material for assessment of Government revenue on the basis of which the plaintiff has sued for contribution," We must assume that there were not materials on the record sufficient to enable the learned Judge to pass judgment in favour of the plaintiff. Mr. Lachmi Narain Singh contends that in order to do complete justice between the parties the learned Judge should have referred the matter to a commissioner for taking evidence and coming to a proper conclusion on the point. But in my opinion it was not the duty of the learned Judge, on his own responsibility, to issue a commission. It was for the parties to make a proper application before the learned District Judge. That course was not adopted by the plaintiff and in my opinion it is quite impossible now to give him any relief, especially as he took no trouble to place proper materials before the Court below. The appeal accordingly fails and must be dismissed with costs.

Ross, J.

I agree.