Sulaiman and Daniels, JJ.:— This is a defendant's appeal arising out of a suit for possession of a certain share by partition of the house in dispute. At the time when the suit was instituted, proceedings in the revenue court for a perfect partition of the village were pending. One of the pleas taken in the written statement was that the suit, in view of the revenue court's partition proceedings, was not maintainable. The learned Munsif dismissed the suit on the preliminary ground that it was not maintainable. On appeal the learned District Judge has taken a contrary view and has remanded the case.
In our opinion the view taken by the lower appellate court is perfectly correct. The subject-matter of dispute in the civil suit is a residential house which is said to have belonged to the ancestor of the parties and in which the plaintiff claimed a defined share. The revenue court has no jurisdiction to partition a house, that is to say, partition the buildings at all. It can partition the site occupied by a house along with other land in a village. Of course if in making a partition it is necessary to include in the portion allotted to one 4 co-sharer the land occupied by a dwelling house or other building in possession of another co-sharer, the latter can under section 118 of the Land Revenue Act, be allowed to retain it (the land) with the buildings thereon on condition of his paying a reasonable ground rent to the co-sharer in whose portion it may be included. It is, therefore, clear that the revenue court could not have partitioned the building itself and allotted the house to any particular co-sharer. All that can be done by the revenue court in partition proceedings is that if a house is in the occupation of one co-sharer and the site is allotted to another, it would be retained by the occupier of the house on payment of a rent to be fixed. This view is supported by the case of Multan Singh v. Pudhan Man Singh , decided by a Bench of which one of us was a member.
The learned vakil for the appellant has contended before us that there was an agreement between the parties that the revenue court would allot to each co-sharer the house belonging to that co-sharer. There is, however, nothing on the record which supports this contention. There does appear however, from the partition proceedings that there was an agreement that the sites of houses belonging to co-sharers would be allotted to the persons in whose possession they were. That, however, is quite a different thing from saying that there was an agreement that the buildings also would be partitioned by the revenue court. The appeal is accordingly dismissed with costs.
Appeal dismissed.
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