JUDGMENT
1. This is an appeal by Ram Prasad, Karan Singh and Ram Chander, who are defendants in a partition application filed by one Mithan Lal under Section 107 of U. P. Act 3 of 1901. Mithan Lal,”who is a co-sharer in khewats Nos. 1 and 2, mahal Hoti Lal in mauza Band Abdulhaipur in the district of Aligarh, applied for perfect partition of his share in the mahal. Notice of this application was issued to all the recorded co-sharers in the mahal. Among others notice was served upon the appellant, and the appellants in the connected appeal filed objections to partition. They claimed to be the separate and exclusive owners of the portions of the mahal which they were in possession of on the ground that about 50 years ago, by a private partition between the co-sharers, they had got the land, and on the ground of adverse possession also, They pleaded that even the inhabited area had been separated by the co-sharers and each co-sharer was in possession of his separate portion, and had built separate houses, but that only one haveli and a room were joint, and four cultivated plots in the outlying land and several uncultivated plots were also joint. The learned Assistant Collector, by his order of the 12th of March, rejected these objections on the ground that they were quite frivolous on the face of them. The objectors appealed to the learned District Judge of Aligarh, The learned District Judge has rejected the appeal on the ground that no appeal lay to him. He has in his judgment stated as follows:
I may say at once that in view of several rulings of the Board of Revenue and of the Honourable High Court, it can be said, almost with certainty, that the objections did in fact raise questions of proprietary rights, but it is also clear that the learned Assistant Collector did not treat them as raising any such questions. We treated the applications as objections with regard to separate possession of land in which there was a joint proprietary right.
2. The objectors have come up in appeal before us and Mr. Panna Lal, on behalf of the appellants has submitted that the order of the Assistant Collector rejecting their objection whether on good, bad, or indifferent ground, was a decision of the question of title which had been raised by them, and that the learned District Judge ought to have disposed of the appeal on the merits. The learned vakil for the respondents has urged that the question raised by the objectors does not amount to a question of proprietary title, and in any event upon the objection, the partition officer will have to partition the mahal and allot portions to each of the co-sharers, and therefore it is of no moment whether the Assistant Collector did or did not decide that particular areas belonged to particular co-sharers. He has relied on the case of Nand Ram v. Brahm Khayal [1914] 22 I. C. 949 and Mohammad Nasarullah Khan v. Ishaq Khan [1910] 32 All. 523 and has submitted that when a co-sharer claimed to be in possession of a particular plot of land and claims that particular plot of land, it cannot be said that any question of proprietary title has been raised and therefore no appeal lay to the District Judge.
3. Whether a question of proprietary title is raised or not depends on the exact objections raised by an objector and when an objector claims to be in possession of any particular plot of land by adverse possession, that certainly raises a question of title. Whether there is any force in the objection raised is a different matter altogether. We think that when an objection is raised as to the proprietary title there are three courses open to the Assistant Collector, namely: (1) to decline to grant the application for partition until the question in dispute has been determined by a competent Court; (2) to require any party to the case to institute a suit in the civil Court; (3) to proceed to enquire into the merits of the objection. In this case, when the learned Assistant Collector went on to say in his order that the objection on the face of it was frivolous, we think that he must be deemed to have chosen to decide the question raised in the objections on the merits, Therefore an appeal lay to the learned District Judge. When a question of proprietary title is decided by the revenue Court, or when that Court directs a party to go to the civil Court to have his rights declared, it is impossible to say that no question of proprietary title has been raised.
4. In the case of Ram Narayan v. Jagan Nath Prasad [1916] 38 All. 115 a Bench of this Court held that when an Assistant Collector directed a party to have his right declared in civil Court upon objections raised to the partition, a question of proprietary right had been raised in the case. We think that the case of Bhagwan Dut v. Brij Bhukan A.I. Rule 1924 Oudh. 317 lays down the correct procedure to be followed in cases where objection to partition is made before an Assistant Collector, We are therefore of opinion that this appeal and the connected appeal must be allowed and the case sent back to the learned District Judge of Aligarh to decide the appeal of the appellants before him on the merits. The question that the learned Judge will have to consider upon the materials on the record is whether there had been a previous partition and whether the parties were in possession of their respective shares, as owners. Costs will abide the result.
