Gursahai Mahton vs Muhammad Saiyad and Others

Sen, J.—The petitioners and the opposite party are parties to a partition proceeding now pending before the Collector. It appears that the petitioner raised an objection u/s 7 of the Estates Partition Act, setting up a previous partition and possession by the parties in pursuance of such previous partition. This objection was disallowed by the Revenue Court and the application for partition was admitted; and the Collector went on with the partition proceedings. The opposite party also participated in the partition proceeding for about four or five years. Ultimately a suit was filed by the petitioner in the Civil Court in which he again pleaded the previous partition and asked for a declaration that the Revenue Court had no jurisdiction whatsoever to proceed with the partition. An application was then put in before the learned Subordinate Judge asking for an injunction staying the partition proceedings till the determination of the civil suit. The learned Subordinate Judge dismissed the application on the ground that the applicant had been for a long time taking part in the partition proceedings and could not be allowed at such a late stage to turn round and say that the Collector had initially no jurisdiction to go on with the partition.

On appeal against this order refusing stay the learned District Judge has come to a different conclusion. He has granted the stay on grounds of equity and convenience, holding that it is desirable that the subject matter of the suit should be maintained in status quo until the decision of the civil suit. This is a matter entirely discretionary with the Court and it does not appear that the parties will be put to any inconvenience or be prejudiced on account of such a stay. It is clear that by taking part in the partition proceedings one could not possibly confer jurisdiction on the Revenue Court. The matter is now open for decision by the Civil Court as to whether the Revenue Court had jurisdiction or not. In the meantime it seems to be in the interests of all parties concerned that the partition proceedings should be stayed.

I do not think that we can interferes with the discretion that has been exercised by the learned District Judge in this matter. The application is dismissed with costs; hearing fee one gold mohar.

Ross, J.

I agree.