R.S. Pathak, J. - (1.) THIS is a revision application Under Section 115 of the Code of Civil Procedure against the decision of the City Munsif, Farrukhabad that he had jurisdiction to take proceedings relating to the preparation of the final decree in a suit for partition of Bhumidhari holdings.
(2.) ON 29 -11 -1957, the Plaintiffs -Respondents filed a suit in the court of the Munsif, Farrukhabad, Under Section 176 of the UPZA and LR Act (hereinafter referred to as "the Act") for partition of certain bhumidhari holdings. On 17 -11 -1958, the trial court passed a decree declaring that the parties were each entitled to a half share in the holdings. On 19 -4 -1958, it directed that the papars be sent to the revenue court for preparation of the final decree and that the case should be put up after three months. The record was sent to the revenue court and proceedings were commenced immediately thereafter by the SDO, Farrukhabad as is evident from the notices dated 20 -6 -1958 and 29 -7 -1958 issued by him. On 11 -2 -1959, he made an order carving out two Kuras of equal valuation, one in favour of the Plaintiffs and the other in favour of the Defendants. He then sent the papers back to the City Munsif, An objection to the Kuras was filed by the Defendant but was dismissed by the City Munsif by his order dated 18 -5 -1959, upon the view that in a suit Under Section 176 of the Act he was merely required to pass a decree declaring the rights of the several parties and that the actual partition had to be effected by the Collector and he relied upon Prabhu Dayal v. The Sub -Divisional Officer, 1958 AWR 715. Not -withstanding that view, by the same order he directed the preparation of the final decree. The Defendants filed an appeal and the learned Additional Civil Judge, Farrukhabad, finding that some plots had already been partitioned in consolidation proceedings, observed that it was necessary to make a further enquiry in respect of the plots remaining joint for the purpose of setting fresh Kuras. In respect of those plots he remanded the suit to the trial court for an enquiry by the Munsif into the nature of the plots. He included a direction that in case the Munsif came to the conclusion that the plots constituted an "estate" assessed to payment of revenue he should send the record to the Collector for partition. If, however, the Munsif found that the plots did not constitute such an "estate", he should proceed to effect partition of the plots himself. The City Munsif became seized of the case again and on 18 -10 -1965, he directed that the record be sent to the Collector for preparation of Kuras. On 26 -11 -1965, the Assistant Collector prepared the Kuras and made a final order partitioning the plots between the parties. The Plaintiffs appealed. The Additional Commissioner, by his order dated 20 -5 -1966, allowed the appeal, set aside the order of the Assistant Collector and directed him to return the record to the civil court. The Additional Commissioner took the view that the Civil court should have passed a final decree and the Assistant Collector should have returned the record back to the Civil court on the ground that he had no jurisdiction. No appeal was filed by the Defendants against that order. It appears that on 11 -8 -1967, the learned Additional Civil Judge deleted the direction contained in his order dated 26 -2 -1964, requiring the City Munsif to send the record to the Collector for partition in case the plots constituted an "estate" assessed to payment of revenue. It may be mentioned that against the order of the learned Additional Civil Judge dated 26 -2 -1964, the Defendants filed a review application which was rejected on 30 -8 -1967, by the learned Additional Civil Judge, who directed the City Munsif to proceed to prepare a final decree in accordance with law. A revision application (Civil Revision No. 1659 of 1967) filed there -after in this Court was dismissed on the ground that the objection as to jurisdiction could be taken in the trial court.
(3.) NOW , upon the order of the Additional Commissioner dated 20 -5 -1966, holding that the revenue court had no jurisdiction to pass the final decree, the record was once more placed before the City Munsif. The Defendants filed an objection contending that the City Munsif had no jurisdiction to pass the final partition decree and the matter should be referred to the Collector for partition of the holdings. The objection was rejected by the City Munsif by his order dated 16 -10 -1967 and against that order the Defendants have filed the present revision application.;