Munshi Raza v. Kitabullah — 1969 DIGILAW 5 (ALL)

JUDGMENT Satish Chandra, J. - This is defendant's appeal. It arises out of a suit for partition of several kinds of 'properties. The plaintiff claimed a half share in house properties, brick-kiln, bullock-carts, animals, foodgrains and also sirdari holding. In defence the plaintiff's share was denied and it was claimed that the appellant was the exclusive owner of the properties in suit. The trial court held that the plaintiff has established that he had a half share in the properties. It accordingly passed a preliminary decree for partition of the plaintiff's one half share. The appellate court has confirmed the findings and the decree. 2. For the defendant-appellant it was urged that the present suit was instituted on 2nd June, 1956. The U. P. Zamindari Abolition and Land Reforms (Amendment) Act XVIII of 1956, which came into force on 28th May, 1956, had transferred the jurisdiction to entertain suits for partition of a sirdari holding from the civil court to a revenue court. With effect from 28th May, 1956, the civil courts could not entertain a suit under Section 176 of the U. P. Zamindari Abolition and Land Reforms Act for division of a holding. The present suit sought partition of a sirdari holding. To that extent items not cognizable by the civil court. The decree, in so far as it seeks to declare the shares in sirdari holding, was without jurisdiction and void. 3. Section 331 of the U. P. Zamindari Abolition and Land Reforms Act as it stood on the date of the institution, that is 2nd June, 1956, provided by sub-Sec. (1) : "331 (1) Except as provided by or tinder this Act no court other than a court mentioned in column 4 of Schedule II, shall, notwithstanding, anything contained in the Civil Procedure Code, 1908, take cognizance of any suit, application or proceeding mentioned in column 3 thereof." So, a civil court cannot take cognizance of any suit mentioned in column 3 of the second schedule of the Act except as provided by or under the Act. A suit for division of sirdari holding under Section 176 is mentioned in that schedule. So, unless there is contrary provision in the Act, the civil court cannot take cognizance of such a suit." 4. A suit for division of sirdari holding under Section 176 is mentioned in that schedule. So, unless there is contrary provision in the Act, the civil court cannot take cognizance of such a suit." 4. Section 153(1) of the Act says :- "Except as expressly permitted by this Act, the interest of a sirdar and asami shall not be transferable." 5. Section 331 (1) does not use the word "expressly". There the phrase used is "except as provided by or under this Act". It is thus apparent that the excepted provisions within meaning of Section 331 (1) need not be expressly laid down in the body of the Act. They can be inferred by implication of the other provisions of the Act. Sub-Sec. (2) of Section 331 provided that "except as hereinafter provided no appeal shall lie from an order or decree passed under any of the proceedings mentioned in column 3 of the schedule aforesaid". The phrase "except as hereinafter provided" was construed by a Division Bench of this Court in Jamuna Das v. Gulab Rani, 1965 ALJ 616 to mean that there was no absolute bar against the appeal. 6. Section 332-B was added to the U. P. Zamindari Abolition and Land Reforms Act by Section 64 of the Amending Act XX of 1954. It provided that if in any suit relating to land instituted after the commencement of the U. P. Land Reforms (Amendment) Act of 1954 or pending on that date a question whether any party to the suit was a sirdar, adhivasi or asami of the land arises, the civil court shall frame an issue on the question and submit it to the Collector for the decision of that issue only. Section 332-B was repealed by Section 79 of the U. P. Amending Act XXXVII of 1958. Between 1954 and 1958 the Legislature clearly contemplated that question as regards title to an agricultural holding as a sirdar may also arise before the civil courts. It is admitted that till 28th May, 1956, the civil court had jurisdiction to entertain suits for division of holdings under Section 176 of the Act. This jurisdiction was taken away from the civil courts and given to the revenue courts by the Amending Act with effect from 28th May, 1956. But Section 332-B remained till 7-11-1958. It is admitted that till 28th May, 1956, the civil court had jurisdiction to entertain suits for division of holdings under Section 176 of the Act. This jurisdiction was taken away from the civil courts and given to the revenue courts by the Amending Act with effect from 28th May, 1956. But Section 332-B remained till 7-11-1958. Section 182-A was added to the Act by Section 34 of the Amending Act XX of 1954 which came into force on 10th October, 1954. It provided that the provisions of Section 54 and Order XX, Rule 18, Code of Civil Procedure, 1908, shall apply to a suit for partition of a holding under Section 176. This provision was repealed by Section 47 of the Amending Act No. XXXVII of 1958 with effect from 7th November, 1958. The Amending Act of 1954 introduced Section 182-B also. Under it the actual division of a holding could be done only by the Collector. The Amending Act XXXVII of 1958 substituted the word "court" for the word "collector" in Section 182-B. 7. Thus, between 10th October, 1954, and 7th November, 1958, the scheme of the Act was that suits for partition under Section 176 were to be governed by Section 54 and Order 20, Rule 18, C. P. C., and the actual division was to be done by the Collector, and after 7-11-1958 by the court. It only restricted the civil courts from conducting the actual division of an estate. Section 182-A was expressly enacted to make it clear that the mentioned provisions were applicable equally to a partition of an agricultural holding. It is true that the jurisdiction to entertain a suit under Section 176 of the Act was transferred to the revenue court on 28th May, 1956, but Section 182-A was retained on the statute book till 7th November, 1958. Till that date Section 182-B authorised the Collector to do the actual division. This shows an intention that suits for division of a holding could continue to be adjudicated by the civil court till 7th November, 1958. If it is held that the effect of the change in the rules, which transferred jurisdiction to entertain suits under Section 176 from civil courts, was to absolutely bar the civil court from entertaining or deciding such suits, the continuance and existence of Section 332-B and 182-A in the Act would become redundant. If it is held that the effect of the change in the rules, which transferred jurisdiction to entertain suits under Section 176 from civil courts, was to absolutely bar the civil court from entertaining or deciding such suits, the continuance and existence of Section 332-B and 182-A in the Act would become redundant. It is well settled that no part of a statute is to be treated as a surplusage or redundant. To avoid such a curious result the legislature appears to have deliberately used the words "except as provided by or under this Act" in sub-sec. (1) of Section 331. 8. In the present case the trial court passed the preliminary decree on 24th November, 1956. On that date it could not proceed to frame the final decree by partitioning the sirdari holding by metes and bounds. That could be done only by the Collector under Section 182-B. The civil court had to transfer the matter in view of Section 182-A. 9. In Sobh Nath v. Shri Dat,1965 ALJ 445 a suit for partition of a bhumidhari holding under Section 176 was filed in 1957. It was held that the civil court was competent to pass a preliminary decree for partition. 10. It is thus-clear that till 7th November, 1958, the civil court could entertain a suit for division of holdings under Section 176 of the Act. 11. For the plaintiff-respondent it was urged that Section 176 of the Act contemplates a suit for division of a holding simplicitor. It does not govern suits for division of other kinds of properties. So, if in a suit partition of several kinds of properties including a sirdari holding is sought, such a suit cannot be treated as a suit under Section 176. It was further urged that in several decided cases it has been held that if a part of the subject-matter of the suit is outside the purview of the revenue court, the civil court can entertain the entire suit. Since I have held that the suit in so far as it related to the partition of the sirdari helding was also competent in the civil court it is unnecessary to resolve this controversy. 12. On merits the finding that the plain-tiff had a half share in the properties was challenged on the ground that the parties in the instant case were Muslims. 12. On merits the finding that the plain-tiff had a half share in the properties was challenged on the ground that the parties in the instant case were Muslims. The principles of Hindu joint family property and the acquisition by a Karta being treated to be for the benefit of the entire family, could not be applied in this case. There is, in my opinion, no substance in this submission. The courts below have not applied the principles of the representative capacity of the Karta to the present case. It was admitted that the properties were joint at one time. There was a partition between sardar and Idu. The properties now in dispute fell in the share of Idu who was the ancestor of both the present parties. The plaintiff claimed that he had a half share in the assets left by Idu and the other half belonged to the defendant. The defendant on the other hand claimed that after the partition between sardar and Idu there was another partition between the various members of the family of Idu, and under the latter partition, the proper-ties in suit were allotted to the defendant. This subsequent partition set up by the defendant was not established to have been proved. The defendant did not challenge the allegation that the properties in suit did come to the share of Idu the common ancestor of the parties. The courts below on evidence held that it was customary in this family to acquire property in the name of Ghafoor but the acquisition was for the benefit of the whole family. This finding has been given on the basis of the evidence on record and has not arisen out of any incidents or the Hindu joint family. There is no merit in this submission. 13. The appeal has no merits and is accordingly dismissed with costs.