Beverley, J.

1. This was a suit for the partition of a revenue-payingestate mouza Kazi Chuck, rakba Macharam Katarwa, being No. 3237 on the touzi ofthe Gya Collectorate, and bearing a sudder jumma of Rs. 100. The plaintiff,having purchased a 9 annas share of this estate from the defendant, found somedifficulty in collecting his rents, and he accordingly applied to the CivilCourt to have his share of the estate partitioned and separated by metes andbounds. The defendant did not appear, and the Court having come to theconclusion that the plaintiff was entitled to a decree for partition, appointeda Commissioner to make that partition, and ultimately on the 18th of December1893 directed that the plaintiff should be put into possession of the 9 annasshare as defined by the Commissioner.

2. It is objected before us on appeal by the defendant thatunder Section 265 of the Civil Procedure Code the learned Subordinate Judge hadno power to appoint a Commissioner to make a partition of this property; butthat, inasmuch as it was an estate paying revenue to Government, he was boundunder that section to have the partition made by the Collector according to thelaw for the time being in force for the partition of estates.

3. We are of opinion that this contention must succeed. Wethink that the section in question is imperative in its terms, and we are notaware of any case in which it has been held that a Civil Court is at liberty toproceed in any way other than that therein prescribed. The case of Debi Singhv. Sheo Loll Singh I.L.R. 16 Cal. 203 [LQ/CalHC/1889/9] has been brought to our notice; but thatcase clearly differs from the present. That was a case in which the plaintiffsheld a certain share in proprietary right and another share in mohararri rightin a certain village, which village formed a portion of a revenue-paying estate,and they asked the Court to define the portion of the village from which theymight collect the rents they were entitled to, without in any way carrying outa partition of the estate itself. That case, we think, is quite distinguishablefrom the present, and affords no ground for holding that a Civil Court is notbound by the distinct provisions of Section 265 of the Code.

4. We accordingly allow the appeal, set aside the finaldecree of the lower Court of the 18th December 1893, and direct that the SubordinateJudge do proceed in accordance with the provisions of Section 265 of the Codeof Civil Procedure. As the defendant did not appear in the lower Court, wherehe might have raised this objection, we make no order as to the costs of thisappeal.

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Meherban Rawoot vs. Behari Lal Barik (16.04.1896 - CALHC)