KANHAIYA Vs. LLLABAI
LAWS(MPH)-1967-8-14
HIGH COURT OF MADHYA PRADESH
Decided on August 02,1967

KANHAIYA Appellant
VERSUS
LLLABAI Respondents

JUDGEMENT

- (1.) THIS revision is by the plaintiff.
(2.) THE plaintiff had filed a suit claiming to be the adopted son of Puhup singh against the daughter of Puhup singh for declaration, partition and separate possession of certain property described in the schedule attached to the plaint. THE property in suit is assessed to land revenue. THE prayer clause in the plaint was to the following effect: "It is prayed, therefore, that the Court be pleased to:- (i) Declare that the plaintiff is the adopted son of late Puhupsingh. (ii) Order partition of the Bhumiswami holding detailed in the schedule attached with the plaint. (iii) Put the plaintiff in separate possession of his own share of the land. (iv) Award costs of the suit; and (v) Award such other relief as the Court may deem just and p\roper," Realising that the prayer clause was not in consonance with the provisions of the law. the plaintiff applied for amendment of the prayer clause to the following effect: "To add the following at the end of clause (i):- and holds 2/3rd interest in the land detailed in schedule (A) of the plaint'. (ii) To add at the end of clause (ii):- '......in accordance with the provisions of section 54 of the Civil Procedure Code'." If the amendment is allowed, the prayer clause would read thus: "(i) Declare that the plaintiff is the adopted son of late Puhupsingh and holds 2/3rd interest in the land detailed in schedule (A) of the plaint. (ii) Order partition of the Bhumiswami holding detailed in Schedule attached with the plaint in accordance with the provisions of section 54 of the Civil Procedure Code." The trial Court, by its order dated 19-10-1966, allowed the amendment of the first clause only. The amendment of the second clause was refused on the ground that under section 178 of the M. P. Land Revenue Code the jurisdiction for partitioning the land revenue paying properties was conferred exclusively on the revenue Courts and that under section 257 of the Code the jurisdiction of the civil Courts was barred in that matter and hence no direction could be issued to the revenue Courts to partition the property by the civil Court. The plaintiff has challenged in this revision the above said order.
(3.) SHRI Dharmadhikari, learned counsel for the applicant, urged that the provisions of section 178 of the M. P. Land Revenue Code are only enabling. Even the proviso to section 178 makes it clear that where the question of title is raised, until such question has been decided by a civil suit, the revenue authorities cannot proceed to partition the property. He, therefore, urged that under section 178 itself the jurisdiction of the civil Court to entertain a suit to decide the title of the parties and even to partition the property is implicit. SHRI Pandey, learned counsel for the non-applicant, on the other hand, urged that though in section 178 the expression 'may' is used, it means 'shall' and that it is wrong to interpret section 178 as an enabling section. He conceded that in various clauses under section 257 there is no reference to section 178; but he urged that even in the absence of such reference, the case is covered by the general provision to be found in the first part of section 257 wherein it is stated that 'except as otherwise provided in this Code, or in any other enactment for the time being in force, no civil Court shall entertain any suit instituted or application made to obtain a decision or order on any matter which the State Government, the Board or any Revenue Officer, is by this Code, empowered to determine, decide or dispose of......'. Section 178 of the Code is in the following terms: "178. Partition of holding.- (1) If in any holding which has been assessed for the purpose of agriculture under section 59, there are more than one Bhumiswami, any such Bhumiswami may apply to a Tahsildar for a partition of his share in the holding: Provided that no such partition shall be made, if any question of title is raised, until such question has been decided by a civil suit. (2) The Tahsildar, may, after hearing the co-tenure-holder, divide the holding and apportion the assessment of the holding in accordance with the rules made under this Code. (3) Omitted. (4) " (5) " Explanation 1- For purposes of this section any co-sharer of the holding of a Bhumiswami who has obtained a declaration of his title in such holding from a competent civil Court shall be deemed to be a co-tenure-holder of such holding. Explanation 2- Omitted." ;


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