The appointment of a commissioner to partition properties that are not revenue-paying estate is not barred by law.

Kapur, J.

1. This is a rule directed against an order passed by Mr. Pitam Singh Jain, Senior Subordinate Judge, Ambala, dated 20-8-1952 holding that the appointment of a local Commissioner to partition the property in dispute was "not warranted by law" in regard to revenue paying estate.

2. The decision as it is put in the last paragraph of the order of the learned Judge does not set out the real question which was to be decided in the present case. In order to understand the facts of the case it is necessary to refer to the pleadings of the parties. On 23-8-1944 the Plaintiffs Rameshwar Nath and his brother Ishwar Nath brought a suit for possession by partition of the properties held by the joint Hindu family. In the schedule Alif attached to the plaint is given the list of the properties which had to be partitioned. No. 1 is a kothi in the Civil Lines, Ambala, with land and garden attached to it, No. 2 a house situate on Sapatu Road, Ambala City, No. 3 a factory called "Ladwa Ginning Factory" with the building and land attached to it situate in Ladwa, tehsil Thanesar, District Karnal, No. 4 is 1/24ths share in agricultural land, No. 5 cotton factory, shops and ghair mumkin land, (a note is added to No. 5 that in this land houses have been built and it is adjacent to the Sat Narain Ginning Factory and Motor-stand, Ambala City) and No. 6 is leasehold land on which Sat Narain Factory has been set up.

Some objections were takea in regard to the jurisdiction of the civil Court to partition these various pieces of property but it appears that ultimately the parties agreed that with the exception of No. 4 all such Properties should be partitioned by a civil Court and a preliminary decree was passed on 13-8-1945. The judgment of the Sub-Judge on the basis of which the decree was framed shows that there was agreement of parties to got those properties partitioned by the Commissioner which were not agricultural lands and agricultural lands were expressly excluded from partition by the Commissioner and were left to be partitioned by the revenue Court. It must be taken, therefore, that it was accepted by the parties that the property with regard to which the Commissioner was appointed was not property which was excepted from the jurisdiction of civil Courts. The appointment of the commissioner on 8-1-1946 to partition these properties was also by consent of parties. The Commissioner made his report to which objections were taken by the defendants. One of. the objections was that a Commissioner could not be appointed to partition "revenue paying estate". The judgment shows that it was conceded by the parties that the proparty mentioned in the application which was made by the defendants was revenue paying estate but buildings had been erected upon it. The learned Judge after referring to several cases has come to the conclusion that a civil Court could not appoint a Commissioner to partition the properties in dispute. The plaintiff has come up in revision to this Court.

3. The proceedings show that the learned Senior Subordinate Judge has misdirected himself in regard to the scope of the preliminary decree and the effect of the agreement of the parties and it is for that reason that the learned Judge failed to exercise jurisdiction in the present case.

4. The plaint and the anuexure "Alif" attached to it to which I have already made reference show that there were six properties in that annexure which were sought to be partitioned. The parties agreed that that portion which was agricultural lands subject to payment of revenue to the Government be excluded. The corollary from that is that the rest of the property was not estate assessed to Government revenue and it was not open to the defendants after having agreed that the property was not such which was not subject to jurisdiction of civil Courts to turn round and say that it was, nor should they have been allowed to do so. Nor is it clear from the order of the learned Judge as t