104. Effect of partitions of estates and tenancies on joint liability for revenue and rent. ––

(1) A partition of land either under this Chapter or otherwise, shall not, without the express consent of the 2 [Divisional Commissioner,] affect the joint liability of the land or of the land-holders thereof, for the revenue payable in respect of the land in estates wherein under section 54 of this Act such joint liability exists, or operate to create a new estate, and if any conditions are attached to that consent, those conditions shall be binding on the parties to the partition.

(2) A partition of a tenancy shall not, without the express consent of the landlord, affect the joint liability of the co-sharers therein for the payment of the rent thereof.

2. Substituted by Act XI of 1956 for “Commissioner”.

1 [105. Application for partition.––

Any joint holder of land 2 [x x x x] or any mortgagee with possession of the share of such holder or tenant, may apply to a Revenue Officer for partition of his share in the land or tenancy, as the case may be, if––

(a) at the date of the application the share is recorded under Chapter IV as belonging to him, or

(b) his right to the share has been established by a decree which is still subsisting at that date, or

(c) a written acknowledgement of that right has been executed by all persons interested in the admission or denial thereof.]

1. Section 105 substituted by Act VIII of Samvat 2004.

2. Certain words omitted by S.O. 3808(E) dated 26.10.2020. (For earlier amendment see Act II of Samvat 2007).

106. Restrictions and limitations on partition.––

Notwithstanding anything in the last foregoing section––

(1) places of worship, cremation and burial grounds held in common before partition shall continue to be so held after partition, unless the parties otherwise agree among themselves and record their agreement and file it with the officer making the partition ;

(2) partition of any of the following properties namely:––

(a) any embankment, water-course, well or tank and any land on which the supply of water to any such work may depend,

(b) any grazing ground, and

(c) any land which is occupied as the site of a town or village and is assessed to the land revenue,

may be refused if, in the opinion of the 3 [Revenue officer,] the partition of such property is likely to cause inconvenience to the co-sharers, or other persons directly or indirectly interested therein, or to diminish the utility thereof to those persons ;

(3) the fact that a partition on the application of a joint holder or land would render necessary the surverance into two or more parts of 1 [erstwhile tenancy] of 2 [an occupant] having a right of occupancy may, unless 3 [the occupant] assents to the surverance, be a sufficient reason for the disallowance of the partition in so far as it would affect 4 [that occupancy] ; and

(4) the fact that the landlord objects to the partition of a tenancy may be sufficient reason for the absolute disallowance of the partition thereof.

3. Substituted by Act VIII of 2004 for “Partition Officer”.

1. Substituted by S.O. 3808(E) dated 26.10.2020 for “the land comprised in the tenancy”.

2. Substituted ibid for “a tenant”.

3. Substituted ibid for “the tenant”.

4. Substituted ibid for “that tenancy”.

107. Notice of application for partition.––

The 5 [Revenue officer] shall, if the application is in order and not open to objection on the face of it, fix a day for the hearing thereof, and––

(a) cause notice of the application and of the day so fixed to be served on such of the recorded co-sharers as have not joined in the application and, if the share of which partition is applied for is a share in the tenancy, on the landlord also; and

(b) if he thinks fit, cause the notice to be served on, or proclaimed for the information of, any other persons whom he may deem to be directly or indirectly interested in the application.

5. Substituted by Act VIII of Samvat 2004 for “Partition Officer”.

108. Addition of parties to application.––

On the day fixed for the hearing, or any day to which the hearing may be adjourned, the 5 [Revenue officer] shall ascertain whether any of the other co-sharers desire the partition of their shares also, and, if any of them so desire, he shall add them as applicants for partition.

109. Absolute disallowance of partition.––

After examining such of the cosharers and other persons as may be present on that day, the Revenue officer may, if he is of opinion that there is good and sufficient cause why partition should be absolutely disallowed refuse the application, recording the grounds of his refusal.

110. Procedure on objection that partition has already been made privately.––

If it is alleged by any of the co-sharers that the land or the tenancy has already been divided by a partition made privately, the Revenue officer, notwithstanding anything to the contrary in section 32 of this Act, shall proceed as though the objection was an application under section 118 of this Act, and if he finds that private partition has in fact been made, may pass orders affirming it, and refusing the application made under section 105 of this Act.

111. Procedure on admission of application.––

If the 1 [Revenue officer] does not refuse the application under the two last foregoing sections, he shall ascertain the questions, if any, in dispute between any of the persons interested distinguishing between––

(a) question as to title in the property of which partition is sought, including question as to the property to be divided ; and

(b) the mode of making the partition.

111-A. Objection raising question of title. ––

(1) If any objection is made by a recorded co-sharer involving a question of proprietary title which has not been already determined by a Court of competent jurisdiction, the 1 [Revenue officer] may either––

(a) decline to grant the application until the question in dispute has been determined by a competent Court, or

(b) require any party to the case to institute within three months a suit in the Civil Court for the determination of such question, or

(c) proceed to enquire into the merits of the objection.

(2) When the proceedings have been postponed under clause (b), if such party fails to comply with the requisition, the 1 [Revenue officer] shall decide the question against him. If he institutes the suit the 1 [Revenue officer] shall deal with the case in accordance with the decision of the Civil Court. (3) If the 1 [Revenue officer] decides to enquire into the merits of the objection, he shall follow the procedure laid down in the Code of Civil Procedure for the trial of original suits.

1. Substituted by Act VIII of Samvat 2004 for “Partition Officer”.

112. Collector’s decrees equivalent to decrees of Civil Court.––

All decrees passed under sub-section (3) of the preceding section shall be held to be decrees of a Court of civil jurisdiction of the first instance and notwithstanding anything contained in section 11 shall be open to appeal to the District Judge or High Court, as the case may be, under the rules applicable to appeals to those Courts.

112-A. Stay of partition pending decision of appeal.––

The Appellate Court may issue a precept to the 1 [Revenue officer] directing him to stay the partition pending the decision of the appeal, whether the appeal is pending from a Civil Court under section 111-A (1) (b) or from the Court of the 1 [Revenue officer] under section 111-A (3).

113. Disposal of other questions. ––

(1) When there is a question as to the mode of making a partition the 1 [Revenue officer] shall, after such enquiry as he deems necessary, record an order stating his decision on the question and his reasons for the decision.

(2) An appeal may be preferred from an order under sub-section (1), and when such an appeal is preferred and the institution thereof has been certified to the 1 [Revenue officer] by the officer to whom the appeal has been preferred, the 1 [Revenue officer] shall stay proceedings pending the disposal of the appeal.

(3) If an applicant for partition is dissatisfied with an original or appellate order under this section, and applies for permission to withdraw from the proceedings in so far as they relate to the partition of his share, he shall be permitted to withdraw therefrom on such terms as the Revenue officer thinks fit.

(4) When an applicant withdraws under the last foregoing sub-section, the 1 [Revenue officer] may, where the other applicants, if any, desire the continuance of the proceedings, continue them in so far as they relate to the partition of the shares of those other applicants.

114. Administration of property excluded from partition.––

When any such property as is referred to in section 106, clause (2), is excluded from partition, the Revenue officer may determine the extent and manner to and in which the cosharers and other persons interested therein may make use thereof, and the proportion in which expenditure incurred thereon and profits derived therefrom, respectively, are to be borne by and divided among those persons or any of them.

115. Distribution of revenue and rent after partition. ––

(1) The amount of revenue to be paid in respect of each of the holdings into which land has been divided on a partition, and the amount of rent to be paid in respect of each of the portions into which a tenancy has been so divided, shall be determined by the 1 [Revenue officer] making the partition.

(2) The determination of the 1 [Revenue officer] as to the revenue to be paid in respect of each holding shall, where the estate in which the holding is situate is subject to a fixed assessment, be deemed to be an order under section 49, sub-section (1).

(3) Where new estates have been created at a partition and the land revenue has been fraudulently or erroneously distributed among them, the 1 [Divisional Commissioner] may, at any time, within 3 years of the confirmation of the partition, order a new distribution of the land revenue among the several estates, on an estimate of the assets of each estate at the time of partition, to be made conformably to the evidence and information procurable respecting the same.

1. Substituted by Act VIII of Samvat 2004 for “Partition Officer”

1. Substituted by Act XI of 1965. 

116. Instrument of partition.––

When a partition is completed the Revenue officer shall cause an instrument of partition to be prepared, and the date on which the partition is to take effect to be recorded therein.

117. Delivery of possession of property allotted on partition.––

When the order of partition has become final the officer making the partition shall put the parties entitled to separate possession into possession of such properties.

If for any reason any party to a partition complains that he has not been put into separate possession of the lands to which he is entitled under the partition, he may apply to the 2 [Revenue officer] or his successor in office to put him in possession.

Such an application must be made within three years of the preparation of the instrument of partition as prepared under section 116. If an application be made after the expiry of three years the applicant shall be referred to the Civil Court to seek his relief by a suit for possession.

2. Substituted by Act VIII of Samvat 2004 for “Partition Officer”. 

118. Affirmation of partitions privately effected. ––

(1) In any case in which a partition has been made without the intervention of a Revenue officer any party thereto may apply to an Assistant Collector of the first class for an order affirming the partition.

(2) On receiving the application, the Assistant Collector shall inquire into the case, and if he finds that the partition has in fact been made, he may make an order affirming it and proceed under sections 114, 115, 116 and 117 or any of those sections, as circumstances may require, in the same manner as if the partition had been made on an application to himself under this Chapter.

3 [118-A. Partition of Shamilat lands.––

Nothing contained in sections 110, 111, 111-A, 112, 112-A, 113, 116, 117 or 118 shall apply to such lands as are recorded as Shamilat under Chapter IV of this Act.

3. Sections 118-A, 118-B, 118-C, 118-D and 118-E added by Act XII of Samvat 2005.

118-B. Procedure for dealing with applications for partition of Shamilat lands.––

If the Revenue officer does not refuse the application for partition of Shamilat land under section 109 or he is satisfied by a reference to the revenue record that the existing possession on lands recorded as Shamilat is not according to the shares of the co-sharing proprietors, he shall proceed to ascertain the individual shares of all the co-sharers and after deciding any question of title under the provisions of the next following section, make an order determining the mode of partition and specifying the area allotted to each one of such co-sharers.

118-C. Disposal of questions of title. ––

(1) If during the course of proceedings taken under the foregoing section an objection is raised by a cosharer involving a question of title, the Revenue officer shall, after such summary enquiry as may be necessary, record his decision thereon giving his reasons for such decision.

(2) An order passed by the Revenue officer under sub-section (1) shall not he appealable or open to revision but shall be subject to any decree or order which may subsequently be passed by any Civil Court of competent jurisdiction.

118-D. Completion of partition and delivery of possession. ––

(1) When partition proceedings in respect of land recorded as Shamilat are completed, the Revenue officer shall put each of the co-sharers into separate possession of the lands to which he is entitled under the partition.

(2) If for any reason any co-sharer is precluded from being put into possession as provided for in sub-section (1), he may, within one year from the date of the order passed under section 118-B, apply to the Revenue officer or his successor in office to put him into possession.

118-E. Procedure for determining mode of partition where Shamilat land held by a co-sharer exceeds the share due. ––

(1) In determining the mode of partition under section 118-B, where a co-sharer in Shamilat is found to hold Shamilat land in excess of the share to which he is entitled and upon such lands improvements of any kind have been made, he shall be given an option of exchanging an area equal to that found in excess from out of his basic holding or Shamilat for distribution amongst those who are found to hold Shamilat land less than their due shares.

(2) Where any person who is not a co-sharer in Shamilat is found to hold any Shamilat land or where a co-sharer in Shamilat refuses to avail of the option provided in sub-section (1), or after availing of such option further land in excess is found to remain in his possession, such land shall––

(a) if it contains an orchard, be allotted, in joint ownership to such cosharers as are found to possess Shamilat land less than their due sharers subject to the condition, that such land shall not be further partitioned, and

(b) if it contains trees other then fruit bearing trees, building or structure, the possessor thereof shall be given an option of removing such trees, or the material of such building or structure within a period of three months from the date the mode of partition is sanctioned].

119. Power to make rules as to costs of partition.––

The Government may make rules––

(a) for determining the costs of partitions under this Chapter and the mode in which such costs to be apportioned ;

(b) prescribing forms for use in proceedings under this Chapter ;

(c) prescribing fees and stamp duties ; and

(d) generally for carrying out the purposes of this Chapter.

1 [119-A. Proceedings.––

Proceedings under this Chapter shall be taken by a Revenue officer not below the rank of an Assistant Collector of the first class 2 [ x x x]. 

1. Section 119-A inserted by Act VIII of Samvat 2004.

2. Words “or Assistant Settlement Officer” omitted by Act III of Samvat 2008.