RADHA KISHUN Vs. BHOLA CHAUDHURI

JUDGEMENT

(1.) This is an appeal by defendants 23 and 29 against the final decree in a suit for partition of Touzi No. 7543. The preliminary decree specified the shares of the various parties. An appeal was preferred against the preliminary decree and dismissed by this Court. It was then found that the shares given in the decree totalled more than 16 annas. They were therefore corrected according to Register D, giving a total of slightly less than 16 annas. Against this amendment these defendants moved this Court. They succeeded on the ground that the lower Court had no jurisdiction to alter the shares given in the preliminary decree after it had been confirmed in appeal by this Court. Boss, J., in allowing the application of these appellants on that occasion observed that it will be open to the parties to apply as they may be advised to the High Court either by way of appeal or revision, whichever course may be applicable in the circumstances.

(2.) Neither of these courses was however adopted by any of the parties. Ultimately the final decree was drawn up by the lower Court on the commissioner's report, after disposing of the objections made by these defendants-appellants, and the order passed on that occasion is the basis of the present appeal. The objections that were taken by the defendants were threefold, one relating to khata 196, another to plot No. 3513, and the third to three other plots.

(3.) The lower Court found that there was no substance in any of these objections. Mr. Mitra for the appellants began his argument by urging that the appellants had since obtained a Collectorate partition and that the partition made by the civil Court ought to be replaced by the partition made by the Collector. He represented that this would save confusion, and he went on to argue that Section 54, Civil P.C., left the civil Court no option to effect the partition decreed by it through any agency other than the Collector. This last contention must clearly be overruled. The point was considered by a Full Bench of the Calcutta High Court as long ago as 1897 in Jogodishury Debea V/s. Kailash Chandra Lahiry (1897) 24 Cal. 725 when it was ruled that Section 265 (now Section 54), Civil P.C., does not apply to a suit for partition of a revenue paying estate when no separate allotment of revenue is asked for.