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Judgment
Macpherson, J.—These four cases relate to the same litigation and the parties being the same, they have by consent been heard together. In mahal Jalalpur which includes mauza Tuturkhi the appellants in Appeal No. 112 of 1932, who are the applicants for revision in the other three cases, hold a six annas dar-mukarrari interest while the opposite party, Nos. 1 to 4, who may be designated the Solanos, hold six annas of the dar-mukarrari interest in all the nine villages except Changhaila where, besides the four annas mukarrari, they hold only two annas of the dar-mukarrari interest, the remaining four annas being held by respondent 5.
The appellants sued in suit No. 190 of 1917 for partition of their dar-mukarrari share and a preliminary decree was passed. During the actual partition the raiyats of a large area in Tuturkhi applied u/s 40, Ben. Ten. Act, for commutation of their bhaoli rents to nakdi payments. The pleader commissioners nevertheless allotted those lands extending to 583 acres to the Solanos at a raibandi of Rs. 9,537 9-9 and the Solanos made serious objection protesting that, in the circumstances those lands in Tuturkhi should be partitioned proportionately and the final decree be stayed until the commutation cases had been disposed of.
But on 23rd October 1922, the Subordinate Judge accepted the proposal of the pleader commissioners and added:
If the nakdi rental of village Tuturkhi as found in the commutation cases be less than the jamabandi on which the present partition has been made, parties will be at liberty to reopen the partition if there be material loss to any of them. This applies also to commutation in other villages under partition. The reservation is meant for bona fide loss without the fault of any party and no party who has wilfully allowed the rental to be improperly commuted will be entitled to claim advantages under it.
The final decree bears data 22nd December 1922, and delivery of possession of the takhtas was given to the parties on 16th March 1923.
The commutation proceedings did not terminate until 3rd February 1926. The final order of the Board of Revenue, so far as material was that the rent of the lands in Tuturkhi should be commuted to cash rent with effect from 1331 F. (corresponding to September 1923) and at an aggregate of Rs. 5,737-3-9 only. The difference between the income as computed by the pleader commissioners and the actual commuted rent was thus no less than Rs. 3,800-6-0. On 18th January 1927, the Solanos applied to re-open the partition. The order to re-open was made in the High Court on 1st August 1928; but the present appellants kept the proceedings pending upon an application for review and then a Letters Patent Appeal in which they obtained a stay of proceedings, until 1st December 1930.
The application out of which the present appeal and the Civil Revision Case No. 264 of 1932, have arisen, was made on 1st December 1931, and was
to order restitution of joint possession as it existed prior to the Court''s dakhaldehani under the decree reversed by the High Court, and also to have compensation at the rates stated below (Rs. 3,800 a year) ascertained for the period commencing from the date of delivery of separate possession under the reversed decree aforesaid (the beginning of 1331) up to the date of restitution of joint possession as prayed for in this petition and to get the same realized from all of those of the opposite parties found liable and paid to your petitioner.
and for alternative reliefs if the prayer for restitution of joint possession was not granted.
The plaintiffs-appellants raised before the learned Subordinate Judge the two objections: (1) that as there had been no appeal against the final decree of December 1922, the application is not maintainable; and (2) that the final partition decree having been set aside by the order of the High Court on 1st August 1928, the applicants were only entitled to compensation from that date. The learned Sub. ordinate Judge overruled the objections pointing out that no appeal was possible as the proceedings (or commutation only terminated in February 1926, and that the defendants in the partition suit having suffered loss and the plaintiffs secured undue advantage from the final decree set aside, the Court had even u/s 152, Civil P.C., an inherent right to rectify the untoward consequences of its error.
He also held that the loss having begun from the beginning of 1331 F., at which the commuted rent came into operation, compensation was payable from that date and not from 1st April 1928, (or any other date) when the order to re-open the partition was eventually made. The appeal is preferred by plaintiffs and as the Subordinate Judge referred also to Section 151, Civil P.C., they have presented the application in civil revision as an alternative to the miscellaneous appeal. The Court also granted without any objection on the part of plaintiffs the prayer of the Solanos for joint possession with the plaintiffs of all the villages which were the subject matter of the partition suit and such possession was taken from 11th April 1932, the date of the order of the Court below. As the learned Subordinate Judge pointed out in the judgment under appeal, the actual partition had been by a previous order postponed until the pending collectorate partition of Belkhara mahal which includes the property in suit, is completed. Civil Revision No. 326 is preferred against the order staying the partition on this ground. Civil Revision No. 88 impugns the order of the Subordinate Judge refusing to make an absolutely new raibandi of all the lands in mahal Jalalpur.
M.A. No. 112 of 1932 and Civ. Rev. No. 264 of 1932.--The first point urged on behalf of the appellants is that Section 144, Civil P.C., has no application to the circumstances.
It is urged that the partition having been set aside in virtue of a provision in the decree itself providing for a certain contingency which has occurred there has been no variation or reversal of the decree on appeal by the judgment-debtor such as, he contends, is necessary to bring Section 144 into operation. In my opinion, Section 1a4 is not confined to cases where the decree is varied or reversed on appeal. The legislature did not contemplate that a narrow significance should be attached to the words of the section. The contention fails for that reason. But in any case the power of the Court to grant restitution is not confined to the cases covered by the provisions of the section. It extends to cases which do not come strictly within the provisions of Section 144. The Court has inherent power u/s 151 to grant restitution.
Mr. Khurshaid Husnain indeed contends that the conditions are not present for the exercise of the inherent power. I am unable to recall any case of which it could more certainly be predicated that restitution was essential for the ends of justice. The learned advocate urges that as there is a decree and as the decree did not provide for compensation in addition to re-opening the partition, action should not be taken which would have the effect of adding to the decree. But no decree would provide for compensation in such circumstances as it would be a matter of course. It was upon the serious objection of the Solanos that the very unusual addition was made to the decree for their benefit; in substance it provides that they are not to be losers by reasons of the commutation.
It follows that the Court contemplated that on the re-opening of the partition each party should be placed by the Court in the same position as if its infructuous decree had not been passed. The facts certainly justify the exercise of the inherent power of the Court and there is no bar of principle or precedent.
It is next urged that the application is barred either wholly or in part by limitation of three years. Reference is made to 1st August 1928, on which re-partition was ordered and to 1st December 1931, on which the present application was filed. To meet this contention it is only necessary to refer to the facts and especially to the dates which have been set out above. The application was filed within a year of the disposal of the application to re-open the partition which itself was made within a year of the Board''s final order which again took effect from the beginning of 1331 F. No provision relating to limitation bars the claim of the Solanos to restitution in this case. There arose during the hearing two subsidiary questions; first, whether sixteen annas of the loss of Rs. 3,800 per annum was debitable to the appellants or they are only responsible for the proportion of the loss corresponding to their share in the property under partition; and secondly, whether a reduction of the raibandi of lands involved in some small commutation proceedings within the takhta allotted to the appellants are to be taken into account. Really these are subsequent points to be decided by the commissioner under the order of the trial Court.
The decision must be made with reference to the provision in the decree for re-opening the partition which applies to all the villages under partition and not only to Tuturkhi. The point of view is that all the parties are to be placed in the position as regards the income of the area wherein commutation was proceeding, after the date of decree, for the period during which the infructuous decree was in operation, which they would have occupied as regards it, if the decree had not been passed. It is purely a matter of accounting. Accordingly the appeal and the accompanying application in revision fail and are dismissed with costs with consolidated hearing fee of ten gold mohurs.
Civil Revn. No. 326 of 1932.--Before the order which was the subject of the above appeal was passed the Solanos applied to the Court to strike off the partition proceedings. The High Court decided against them. They then applied to stay the partition on the ground that the Belkhara mahal of ninety-nine villages which includes mahal Jalalpur, is under the Collectorate batwara. The learned Subordinate Judge granted the application and the plaintiffs now apply for revision of his order. The ground on which he made the order, was that the partition would be u/s 99, Estates Partition Act. Prima facie that would be so; but the plaintiffs-petitioners urge that in View of the fact that their six annas darmukarrari is obtained in equal moieties from the Solanos and the nine annas Tikari Raj represented by defendant 6, the partition should be u/s 83. An affidavit is filed stating that it has not yet been decided by the revenue authorities whether the partition of Belkhara mahal will be u/s 99 or Section 83. It is accepted by the Court below that mukarrari leases have been given by different proprietors for different shares at different times.
It is conceivable in the circumstances that when the great mahal is partitioned by the Collector there may be tremendous complications which might even render the present civil Court partition infructuous or at any rate introduce confusion as great as or even greater than did the unfortunate judgment of the Subordinate Judge in 1922. Clearly if the proceedings are u/s 99, there must be a stay. But even if they are u/s 83, it may be necessary or, at any rate expedient that there should be a stay. The order therefore which we pass in this case is that in the rather unlikely event of the revenue authorities deciding to proceed u/s 83, the plaintiffs-petitioners may again raise the matter before the trial Court, but only after the point is finally decided in the revenue Courts, that is after the decision of any appeal on the point to the Commissioner or the Board of Revenue.
With this modification of the order the application is rejected. The parties will bear their own costs.
Civil Revn. No. 88 of 1932.--This application is preferred against order No. 147 dated 19th November 1931. When the partition was re-opened and pleader commissioners were appointed they considered that following the judgment of this Court they should proceed de novo and should make a new raibandi. The solanos obtained from the Court order No. 147 now impugned. That order points out that the judgment of the High Court did not direct that the old raibandi and takhtabandi should be ignored altogether. The view of the learned Subordinate Judge was that to avoid unnecessary harassment, delay and expense; the old raibandi should be acted upon unless there were good reasons for departing from it, and the present takhtabandi should only be disturbed and modified to meet the now situation caused by commutation or possibly to face new conditions in certain villages arising from some holdings having been improved or having deteriorated.
He therefore instructed the commissioners to follow the old raibandi and takhtabandi so far as practicable. His idea was that parties should indicate any points in the old raibandi which require modification and the commissioners should determine whether there was good and sufficient reason for a modification. In my opinion not only was there no material irregularity in the exercise of jurisdiction on the part of the learned Subordinate Judge, but his order is a proper one with which there is no reason to interfere in revision. The rule is discharged with costs hearing fee two gold mohurs.
Agarwala, J.
I agree.