William Comer Petheram, C.J.

1. This is an appeal from a decision of the SubordinateJudge of Gya, in a suit brought by the plaintiffs against the defendants topartition the plots of land, contained in a revenue-paying estate among thepersons entitled to the estate, but there is no claim in the plaint to have theestate or the revenue payable to Government partitioned, in the sense that itshould be turned into several revenue-paying estates.

2. The Subordinate Judge has decreed the suit, and hasdirected that the Civil Court Amin shall give effect to it, and the only groundof appeal here is, not that the decree is wrong, but that the decree must begiven effect to, not by the Civil Court Amin, but by the Collector of thedistrict, and various cases have been cited before us in support of that view.It is said that, by Section 265 of the Code of Civil Procedure, whenever theestate, in respect of which partition has taken place, is a revenue-payingestate, that partition must be carried out by the Collector. But it seems to usthat the meaning of that section is, that where a revenue-paying estate has tobe partitioned into several revenue-paying estates, that partition must becarried out by the Collector, because the revenue is affected, and it is forthe Collector to say how much revenue shall be assessed upon each portion ofthe estate, so that there may be a proper security for that revenue, and wethink that that is the view which was intended to be taken by Mr. JusticePrinsep and Mr. Justice Pigot in the case of Zahrun v. Gowri Sunkar I.L.R. Cal.198.

3. In that case, the learned Judges say-" Section 265of the Code of Civil Procedure of 1882, which is generally a re-enactment ofSection 225* of the Act of 1859 evidently contemplates the existence of thejurisdiction of the Civil Courts to try suits for partition of estates, or forthe separate possession of the share of all undivided estate paying revenue toGovernment, but at the same time it leaves it to the Collector only to give dueeffect to any order passed by a decree of a Civil Court." And then they goon to say,-" The effect of Section 29 of the Butwarrah Act, as we understandit, is, that the rights of the parties as between themselves in respect to anyportion of the estate may be determined by the Civil Court, but that any decreeof the Civil Court will not affect the joint liability of the sharers inrespect to the payment of the entire revenue assessed on the estate until theCollector has taken proceedings in accordance with that Act."

4. It seems to us that the meaning of the learned Judges inthat case was to say, that the Civil Courts might deal with the matter andmight give effect to their decisions, so long as they did not attempt to affectthe joint liabilities of the sharers in respect of the whole estate as it stoodbefore. That decision we think does not differ from the various decisions whichhave been cited before us, in which it seems to us that the learned Judges,when speaking of the partition of revenue-paying estates were speaking of thepartition of such estates into several revenue-paying estates. That is atotally different thing from the partition of the lands within an estate asbetween the sharers leaving the whole estate liable for the whole revenue,which is the case before us.

5. For these reasons we think that this case is concluded bythe case of Zahrun v. Gowri Sunkar I.L.R. Cal. 198 which I have cited, and withwhich we entirely agree, and this appeal must be dismissed with costs.

* Division of estate or separation of share how to be made.

[Section 225: If the decree be for the division of anestate, or for the separate possession of a share of an undivided estate,paying revenue to Government, the division of the estate or the separation ofthe share shall be made by the Collector under the orders of the Court,according to the rules in force for the partition of an estate paying revenue toGovernment.]

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Sheo Lall Singh and Ors.vs. Debi Singh and Ors.(21.01.1889 - CALHC)