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1965 DIGILAW 214 (ALL)

Dharam Narain v. Lalman Shukla

1965-07-07

D.S.MATHUR

body1965
ORDER D.S. Mathur, J. - This is a revision by Iharam Narain, Defendant, against to order dated 12.10.1963 of the City Munsif of Jaunpur, directing that final scree shall be prepared with regard which steps were to be taken within four days. 2. The present suit related to the partition of agricultural holding. The City Munsif not only determined the shares of the parties but directed that final partition decree shall be prepared. 3. Two decisions of this Court were brought to my notice, but they relate to the law as was in existence before the amendment of the UPZA and LR Act under U.P. Act No. XXXVII of 1958. The case of Sobh Nath v. Shri Dat and Ors. (1) (1965 A.W.R. 276) arises out of a suit instituted in the year 1957. It is not clear when final partition decree was passed in the suit. The appeal against the final decree was, however, dismissed by the Civil Judge on December 18, 1961. While laying down the jurisdiction of the Civil Court, Hon'ble S.N. Singh, J. referred to un amended Section 182B of the UPZA and LR Act and not to the section as amended under U.P. Act No, XXXVII of 1958. It can, therefore, be assumed that Sobh Nath v. Shri Datt and Ors. (supra) arose out of a suit decided prior to the commencement of the amending Act. U.P. Act No. XXXVII. of 1958 made material amendments to the UPZA and LR Act and consequently, the above cannot be treated as an authority on the amended law. 4. Similarly, Prabhu Dayal and Ors. v. The Sub Divisional Officer, Karvi, District Banda and Ors. (2) (1958 A.W.R. 715) is the case decided many months before the amendment of Section 182B of the UPZA and LR Act. 5. The present suit was instituted in 1953, and it was rightly taken cognizance of by the civil court. A court having the jurisdiction to entertain a suit can pass a final decree therein unless such power has been taken away under some enactment. 6. At the time of the institution of the suit Sections 182-A and 182-B did not exist in the UPZA and LR Act. These two sections were added under U.P. Act No. XX of 1954. Section 182-A was, however, deleted by Section 47 of U.P. Act No. XXXVII of 1958, while Section 182-B amended by Section 48 thereof. 6. At the time of the institution of the suit Sections 182-A and 182-B did not exist in the UPZA and LR Act. These two sections were added under U.P. Act No. XX of 1954. Section 182-A was, however, deleted by Section 47 of U.P. Act No. XXXVII of 1958, while Section 182-B amended by Section 48 thereof. Prior to the amendment, the partition of the holding or the separation of the share there in of a Bhumidhar or sirdar could be done by the Collector, and by no other court or authority, and the partition was to be made in accordance with the principles that may be prescribed. Since after the amendment the division of the holding or the separation of shares has to be made by the Court. The term "Court" has not been defined in the UPZA and LR Act and consequently, must be given its usual meaning and shall include the Civil Court also. Consequently, the "Court" contemplated by amended Section 182-B of the UPZA and LR Act is the Court before whom the suit for partition or division of the holding or the separation of the share therein is pending and such Court can actually partition the holding, that is, pass a final partition decree. 7. Section 54 CPC read with Order 20, Rule 18 CPC places a restriction on the powers of the civil Court. The restriction imposed is that the actual partition of an estate assessed to revenue is to be referred to the Collector and the actual partition, that is, the final decree is to be passed by the Collector and not by the civil court. An estate contemplated by Section 54 CPC and Order 20, Rule 18 CPC was the zamindari property which was abolished under the UPZA and LR Act. It has to be considered whether, after the abolition of Zamindari, the term "estate'' can include "agricultural holding" and whether Section 54 CPC and Order 20, Rule 18 CPC apply to division of agricultural holding assessed to land revenue. 8. As already mentioned above, Sections 182A and 182B were added to the U.P. ZA and LR Act under U.P. Act No. XX of 1954, and when the UPZA and LR. 8. As already mentioned above, Sections 182A and 182B were added to the U.P. ZA and LR Act under U.P. Act No. XX of 1954, and when the UPZA and LR. Act was further amended under U.P. Act No. XXXVII of 1958, Section 182-A was deleted and Section 182-B was amended giving power to the Court, and not to the Collector to partition the holding. In case Section 54 CPC and Order 20, Rule 18 CPC were to apply to a suit or proceeding for partition or division of a holding, the legislature would not have thought of deleting Section 182-A which made these two provisions applicable to a suit for partition of the holding u/s 176 of the UPZA and LR Act. Further, if Section 54 CPC and Order 20 Rule 18 were still applicable, Section 182-B would not have been amended by taking away the power of the Collector to partition an agricultural holding. 9. After the deletion of Section 182-A and the amendment of Section 182B of the UPZA and LR. Act, no other opinion can be formed except that Section 54 CPC and Order 20 Rule 18 CPC shall not apply to suits for partition or division of a holding or for the separation of shares there in and actual partition shall be done by the Court in accordance with the principles that may be prescribed. 10. A perusal of the UPZA and LR Act also makes it clear that "estate" is the property held by exzamindar, and not agricultural holding. In this view of the matter also Section 54 CPC and Order 20 Rule 18 CPC cannot apply to agricultural holding. Even if the term "estate" could be given a wider meaning to include "agricultural holding" Section 54 CPC and Order 20 Rule 18 CPC cannot, in view of deletion of Section 182-A and amendment of Section 182-B, be made applicable to suits for partition or division of the holding of Bhumidhar or Sirdar. 11. When Section 54 CPC and Order 20 Rule 18 CPC are no longer applicable, the final partition decree shall be passed in accordance with Section 182-B of the UPZA and LR Act, that is, by the Court, to put it differently, by the Court before whom the suit is pending. 11. When Section 54 CPC and Order 20 Rule 18 CPC are no longer applicable, the final partition decree shall be passed in accordance with Section 182-B of the UPZA and LR Act, that is, by the Court, to put it differently, by the Court before whom the suit is pending. The present suit was rightly instituted before the civil court and was pending before it and hence the final partition decree could be passed by the civil court in accordance with the principles prescribed under the rules. 12. Rules 156 to 164 of the UPZA and LR Rules apply to suits or proceedings for division of a holding. They also speak of the Court which would include the civil court. 13. The intention of the legislature has to be judged from the words used in the enactment, and not what may have been in their mind. Consequently, the general word "Court" must be deemed to include a civil court also and final partition decree and in a properly instituted suit, can be passed by the civil court. 14. No other point was raised before me. 15. The revision has thus no force and it is hereby dismissed. Costs or parties. Stay order is vacated.