BIR BABU Vs. RAGHUBAR BABU

JUDGEMENT

(1.) This is a petition in revision filed by defendant 1 in a partition suit against an order of the Additional Subordinate Judge, Ranchi, deciding that the onus of proof in the case lies upon him and directing him to lead evidence.

(2.) The first point which arises in whether this is a matter in which this Court has any jurisdiction under Section 115, Civil P.C. So far as we are concerned, this matter must be treated as settled in view of numerous decisions of this Court, in which it has been held that such power can be exercised to revise interlocutory orders of the Courts below in which conditions of Clauses (a), (b) or (c) of Section 115 are satisfied: vide Banke Behari V/s. Ram Bahadur A.I.R. 1918 Pat. 131, Nauratan Lal V/s. Wilford Joseph Stephenson A.I.R. 1922 Pat. 359, Kameshwar Narayan Singh V/s. Rikhnath Koeri A.I.R. 1920 Pat. 131, Mani Lal V/s. Durga Prasad A.I.R. 1924 Pat. 673 and Kunja Behari Das V/s. Chintamani Das A.I.R. 1934 Pat. 425. The principle laid down in Mani Lal V/s. Durga Prasad A.I.R. 1924 Pat. 673, after an examination of the previously decided cases, is that ordinarily an interlocutory order is not capable of revision, particularly when there is another remedy available to the injured party, but where the order complained against is such as is calculated to cause irreparable loss to the injured party and there is no right of appeal and no remedy available to the party the order may be revised.

(3.) I come now to the merits of the petition. The parties belong to the family of one Haldar Babu, who is said to have acquired the property sought to be partitioned. It is of aboriginal origin, being Mundas of the Chotanagpur Division. The plaintiffs claim that the family is governed by Hindu Law and this is a joint family property, and in this view asked for partition. On the other side, defendant 1, who is the senior member of the senior branch of Haldar Babu's family, pleads that the parties are not Hindus and have not adopted Hindu customs, and that in the matter of succession they are governed by the rule of lineal primogeniture, and so he is entitled to and is in possession of the entire property, subject to grants made by way of maintenance to junior branches of the family.