Authored By : B.K. Mullick, Atkinson

B.K. Mullick, J.

1. The land in suit measures 2 bighas, 9 cottahs, 3 dhurs and the plaintiffs claim declaration of title to hold it under the defendant as an occupancy holding upon a rent of Rs. 2 per annum. The defendant was a co-sharer with the predecessors of the plaintiffs in the parent estate, from which a patti containing the land in suit has been carved out and allotted to the defendant in a partition made by the Revenue Officers. The partition commenced in 1894 and was completed in 1909.

2. On the 8th December 1897, Act VIII (B.C.) of 1876, which was the Act under which the partition was commenced, was repealed by Act V (B.C.), of 1897, which Act is now in force. In 1899 a Record of Rights under the Bengal Tenancy Act was finally published showing plaintiffs to be occupancy raiyats with a rent of Rs. 2 in the land in suit.

3. The defendant contends that section 119, Act V (B.C.) of 1897, is a bar to the suit and the partition khasra showing that the land is his zerait is final.

4. The Subordinate Judge has given effect to this plea and held that the suit is not maintainable.

5. The onus of proving that the partition which was concluded after Act V (B.C.) of 1897 came into operation was made under the Act of 1876, is upon the plaintiffs. This they have discharged by referring to a Partition Map, which curiously enough was filed by the defendant and which shows that the Collector understood that he was carrying out the partition under the old Act of 1876. Act V (B.C.) of 1897 states that if an order under section 63 of Act VIII (B.C.) of 1876 has been made before the 8th December 1897, then the Collector shall follow the procedure of the old Act. In the present case a presumption arises that there was such an order under section 63 and as the defendant has not rebutted that presumption, we are entitled to hold that the partition was concluded under the old Act.

6. If the old Act applies, then section 143 of that Act is no bar to the present suit. Under that Act no Record of Rights was to be prepared and the Collector had to make a valuation upon the basis of rentals and assets, but was not bound to ascertain the same after measurement and survey. Section 149 debarred a suit for the purpose of setting aside an order approving a partition. The Collector was only concerned to see that the allotment of lands between the proprietors and the distribution of Government revenue were fair. He was not concerned to see whether any third party had a subordinate interest in any land which was valued. Therefore, I have no doubt that the present suit is maintainable. But then the learned Vakil for the defendant-respondent contends that to allow such a suit is to declare that the value of the land is less than that which was fixed by the Collector and so to modify the partition.

7. In the first place, it has to be shown that the effect of declaring the plaintiff to be an occupancy raiyat does modify the valuation. That this is so has not been shown.

8. In the second place, the defendant was a party in the valuation proceedings and if he allowed the Collector to value as zerait land which was in reality in the possession of a tenant and for that reason of less value, then the fault was his own. Section 149 contemplates that no proprietor will be competent to sue another proprietor for the purpose of modifying the valuation. That, however, does not debar a tenant from impugning the entries in the partition papers so far as they affect him.

9. But having regard to the fact that the plaintiffs and defendant are co-sharers, a question of estoppel arises. Having allowed the Collector to enter their raiyati holding as the defendant's zerait land, can they now turn round and say that the Collector was wrong This issue has not been tried and we think the case must be remanded for its trial along with the other issue which the Subordinate Judge has not yet tried.

10. In the view that we take of the applicability of Act VIII (B.C.) of 1876, it is not necessary to consider whether section 119 Act V (B.C.) of 1897, bars the present suit. In my opinion, however, the same arguments apply to this section as to section 149 of the old Act, and the suit is maintainable even under the new Act. The fact that the tenants are now served with notice to be present at the Record of Bights, which has to be prepared under the present Act, does not affect the scope of section 119. The Collector is not empowered, under Chapter VIII of the present Act, to make any order declaring that every entry in the record so prepared is correct. The entry no doubt carries a presumption of correctness, but that is all. I have to note that it is not clear on what evidence the learned Munsif came to the conclusion that the Record of Rights in plaintiffs' favour was correct, and that the entry in the batwara khasra was incorrect. That, however, will be a question for the Lower Appellate Court after placing the burden of proof upon the defendant.

11. The order which we will make is that the judgment and decree of the Lower Appellate Court be set aside and that the case be remanded to him for the decision of the other issues as well as the following additional issue, namely, whether the plaintiffs are estopped from bringing the present suit.

12. The parties will be entitled to adduce evidence before the learned Subordinate Judge upon this issue.

13. Costs will abide the result.

Atkinson, J.

14. I concur.