Medni Prosad vs Matadin Panda and Others

Sinha, J.—This is a plaintiff''s second appeal from the decision of the learned Subordinate Judge of Monghyr, reversing that of the Munsif of Begusarai in a suit for possession of an eight anna share in village Bharra.

The plaintiff alleged that Mahal Naokothi bearing Tauzi No. 780 comprised several villages including Mauza Bharra. Defendants 22 to 24 are the proprietors of this village. Defendants 1 to 20 are proprietors of the other villages in the mahal aforesaid, Defendants 22 and 23 executed a usufructuary mortgage bond in favour of the plaintiff as also of his father in respect of their eight anna share in village Bharra. The plaintiff has been in possession of the eight annas share in village Bharra since 1927 and his father was in possession before that time in pursuance of the sudbharna bond in his favour. The remaining eight annas share in that village continued in possession of defendant 24. The owners of the other villages in the mahal aforesaid started a partition proceeding in the Collectorate, being partition Case No. 31 of 1925-26. The proceedings were referred to one Mr. R.G. Finch for arbitration. In the record-of-rights prepared in or about the year 1902, a special khewat, being Khewat No. 18, was prepared in respect of village Bharra as in possession of defendants 22 to 24. As no mauzawar register had been prepared in respect of the estate in question, the plaintiff or defendants 22 to 24 had not been recorded in the D Register maintained by the Collector. The result was that the recorded proprietors of Mahal Naokothi, Tauzi No. 780 only were parties to the partition proceedings in the Collectorate. The plaintiff and defendant 22 made an application in the Collectorate for the preparation of a mauzawar register showing the interest of the proprietors of Mauza Bharra, which was a part of the estate under partition; but the Revenue authorities refused to prepare such a register, with the result that the partition proceeded and was concluded without the plaintiff or defendants 22 to 24 being parties to the partition. The partition proceedings ended in or about the year 1940, and delivery of possession was given in pursuance of the partition some time in 1940. By the delivery of possession aforesaid the plaintiff was dispossessed by those proprietors who had been allotted village Bharra in their takhtas. Hence the plaintiff sued for possession of his eight annas share in village Bharra on adjudication of his title to the same as the sudbharnadar of defendants 22 and 23. Out of defendants 1 to 21 only defendants 2, 4, 11, 19 and 20 filed one joint written statement, whereas defendants 7 and 8 filed another. Though defendant 21 filed a written statement saying that he had no concern with Mauza Bharra and was, therefore, not a necessary party to the suit, he did not contest the suit at the hearing. By the other two sets of written statements the defendants aforesaid contended inter alia that the suit was bad for defect of parties inasmuch as the plaintiff had impleaded even those persons to whom Mauza Bharra had not been allotted by the Collectorate partition; that the suit was barred by limitation inasmuch as the plaintiff or his predecessors-in-title were never in possession of any share in village Bharra; that the suit was not maintainable in view of the provisions of Sections 25, 27, 99 and 119, Estates Partition Act; and that the defendants to whose takhtas village Bharra had been allotted by the Collectorate partition had taken the same free from all encumbrances, assuming that there was an encumbrance as alleged by the plaintiff.

The learned Munsif decreed the suit in full, that is to say, granted a decree for possession as also for mesne profits. The contesting defendants preferred an appeal which was heard by the learned Subordinate Judge. He affirmed the findings of the trial Court on questions of fact, that is to say, he agreed with the trial Court that defendants 22 to 24 were the proprietors of village Bharra and that the plaintiff was the sudbharnadar of eight annas interest in that village representing the share of defendants 22 and 23; and that the plaintiff as also his predecessors in-title were in possession of their respective interests in the property. But whereas the learned Munsif was of the opinion that the Collectorate partition, which was concluded completely ignoring the interest of defendants 22 to 24 and the plaintiff, was not binding on them, the lower appellate Court came to the conclusion that the provisions of Sections 27 and 99, Estates Partition Act, were a bar to the suit. In that view of the matter the lower appellate Court dismissed the suit on the preliminary ground that it was not maintainable, but granted no costs to either party. The learned Subordinate Judge also noted that the suit was being dismissed not on merits but on a preliminary ground, and that, therefore, the plaintiff was at liberty to seek his remedy in a properly constituted suit, though he did not indicate as to the nature of such a suit. Hence this second appeal by the plaintiff.

It has been contended, and, in my opinion, quite rightly, by counsel on behalf of the appellant that the learned Subordinate Judge has erred in law in holding that the suit is barred either by Section 27 or by Section 99, Estates Partition Act, in the sense that the plaintiff''s suit is liable to be dismissed without any relief being granted to him. Section 27 makes reference to a suit instituted as mentioned in Section 25 of the Act. Section 27 in terms does not speak of an absolute bar to a suit. It only provides that a suit instituted in terms of Section 25 of the Act shall be in recognition of the partition proceedings and shall give effect, to the division of the parent estate into separate estates as ordered by the Collector. Section 25 itself does not contain any provisions barring a civil suit, but only provides that such a suit instituted after four months of the orders passed under Clause (a) or Clause (b) of Section 28, or u/s 29, shall not avail to affect or stay the progress of the partition proceedings. Hence it must be held that the learned Subordinate Judge misdirected himself in holding that Section 27, Estates Partition Act, was a bar to the suit. The same must be said of his conclusions with respect to Section 99, Estates Partition Act. Section 99 only gives effect to the doctrine of substituted security. It lays down that any encumbrance created by a co-sharer proprietor on a particular share in the estate or a portion thereof, will not attach to that share or portion in the event of the same being allotted to another co-sharer, and the encumbrance shall hold good as regards lands finally allotted to the share of the proprietor who had created the encumbrance. Section 99, therefore, does not speak of any bar to a civil suit. Furthermore, Section 99 cannot in terms apply as defendants 22 and 23 who created the encumbrance were not parties to the partition proceedings. Section 99 presupposes that the co-sharer who created the encumbrance was a party to the partition proceedings and had been allotted a portion of the parent estate as his separate property to which the encumbrance created by him would attach. [5] It has been found by both the Courts below that the proprietors of village Bharra were not parties to the Collectorate proceedings for the reason that they were not recorded in the Collector''s D Register. For the same reason the plaintiff also could not be a party to that proceeding. But the question is, can the partition proceedings wipe out the plaintiff''s interest in the village Bharra or the interest of the proprietors themselves in that village? The Collectorate partition had the effect of dividing the estate into several parts, but it could not have the effect of confiscating the interest of those co-sharers who were not registered in the Collectorate, or of their transferees. Though u/s 4, Estates Partition Act, it is only a "recorded proprietor" who can claim a partition of the parent estate, Section 18, Clause (d) contemplates that every proprietor, whether recorded or unrecorded, shall be a party to the partition proceedings, and the duty has been cast upon the applicant for partition to set out in the application certain particulars including "the name and address of every proprietor, whether recorded or unrecorded, of such estate." u/s 20 it is open to the Collector to reject the application or to return it for amendment if, in his opinion, it does not fulfil the requirements of Sections 18 and 19; but if the Collector decides to proceed with the partition, he is required by Section 21 to publish a notification of the application in the manner provided in that section. Section 21 also provides for service of notice of the application on such of the recorded proprietors of the estate as have not joined in the application and on any unrecorded proprietor who has been named in the application. It does not appear that defendants 22 to 24, or the plaintiff had been named in the application for partition, nor does it appear that any one of them came up to the Batwara Court at the appropriate stage for being added as a party to the proceeding. The result was that the partition proceeded without the proprietors of village Bharra, which was an integral part of the estate under partition, being party to the partition proceedings. Their existence and their interest in a portion of the estate were completely ignored, and village Bharra was allotted to the share of some of the proprietors of the parent estate who were party to the proceedings. As a result of the aforesaid allotment some of the defendants (it does not exactly appear which of them) got portion of village Bharra as part of their separate estates by the Collectorate partition. It cannot be said that the proprietors of the parent estate under partition were not aware of the interest of the proprietors of village Bharra inasmuch as as far back as 1902 their interest is recognised and recorded in the special khewat No. 18 of village Bharra. Section 19, Estates Partition Act, requires that the application for partition shall be accompanied by a specification, amongst other things, of the record-of-rights prepared for the estate under partition. Apparently, the specification in respect of village Bharra was not appended to the application for partition, and thus the Batwara Court was misled into ignoring the existence of the proprietors of village Bharra. This, in my opinion, could not have been the result of an accidental mistake. It must have been designedly so arranged by some, if not all, of the proprietors who were parties to the Batarwa proceedings. Certainly, therefore, the persons who were parties to the Batwara proceedings, namely defendants 1 to 21, could not be allowed to take advantage of their own wrong. It must, therefore, be held that the partition of the parent estate and the several allotments made in favour of defendants 1 to 21 by the partition aforesaid did not affect the interest of the proprietors of village Bharra and their transferees.

The question remains, what should be the form of the decree to be passed in favour of the plaintiff. The learned Munsif declared the plaintiff entitled to his eight annas share in village Bharra; he also granted him a decree for mesne profits from the date of dispossession. The ordering portion of the learned Munsif''s judgment is not clear as to from which of the defendants the plaintiff was to recover possession and mesne profits. If he meant to order that the plaintiff should recover possession, specifically of eight annas share in village Bharra, completely ignoring the separate allotments made by the Collectorate, partition, in my opinion, such a course would introduce further complications. Apart from considerations of justice and equity, it cannot be said that the plaintiff''s eight annas share in village Bharra is contained in allotment of any particular co-sharer who has been carved out a separate estate including a portion of village Bharra. As I have indicated above, all the co-sharer proprietors who were parties to the Collectorate partition were in the wrong in ignoring the existence of the proprietors of village Bharra. They have got allotments made in their favour by including the assets of village Bharra in the total assets available for partition in their favour without the proprietors of Bharra being there. Hence, in my opinion, the proper order to make in this suit is to hold that the plaintiff or the proprietors of village Bharra aforesaid are not bound by the Collectorate partition effected in their absence, but that the plaintiff is not entitled to claim possession of eight annas share in village Bharra itself from some of the proprietors to whom that village has been allotted as a result of their partition. The plaintiff should be held entitled to claim the equivalent of the assets of eight annas share in village Bharra from all the co-sharer proprietors of the entire estate amongst whom the parent estate has been divided.

It was also contended on behalf of the respondents that all the necessary parties to the suit, that is to say, all the co-sharer proprietors of the entire estate, had not been impleaded, but no such plea was taken in the Courts below. As a matter of fact, issue No. 5 in the trial Court relating to defect of parties was answered in favour of the plaintiff on the ground that it had not been specifically pleaded in the written statements of the different sets of defendants aforesaid as to which persons had been left out; nor was there any evidence led on the defendants behalf to prove that any necessary parties had been omitted. The written statements appear to have raised the plea that the plaintiff had impleaded too many persons, that is to say, persons who are wholly unnecessary parties. If any co-sharer proprietor, who has been allotted a share in the parent suit, has not been impleaded in the suit, this judgment will not be binding on him.

Assuming that all the necessary parties are before the Court, it should not be difficult to make out with reference to the partition proceedings as to what is the equivalent of the plaintiff''s eight annas share in village Bharra which has been included in the partition proceedings and distributed amongst the different co-sharer proprietors. The plaintiff will get his equivalent of an eight annas share in village Bharra, out of the different allotments made to the different sets of co-sharer proprietors. The plaintiff will get his decree for mesne profits on that basis, that is to say, from each set of co-sharer proprietors as may be determined by the Court below, in accordance with the directions given above.

As a result of these considerations the judgment and decree passed by the lower appellate Court are set aside, but the judgement and decree passed by the learned Munsif also cannot be entirely affirmed. They are affirmed in so far as the plaintiff''s title to eight annas of village Bharra is concerned. But the question of recovery of possession and mesne profits has got to be determined afresh as already indicated. For this limited purpose, the suit will have to be remitted to the Court of first instance to work out what specific portions of each separate estate the plaintiff would recover possession from the different sets of co-sharer proprietors. The plaintiff will get a decree for costs also in all the Courts recoverable from the different sets of defendants in proportion to the amounts recoverable from them. The decree against the defendants will not be a joint and several one, but only a several decree to be prepared by the Court of first instance in accordance with the directions given above.

Reuben, J.

I agree.