SURENDRA NATH SARKAR Vs. MAHABIR ROY

JUDGEMENT

(1.) This is an appeal by the plaintiff and is directed against a judgment and. decree passed by Janab N. Ahmed, Subordinate Judge, 1st Court, Howrah, dated 12-5-1947.

(2.) The property in dispute belonged to three sisters Hedatan Bibi, Latifan Bibi and Kanij Fatema Bibi, It is not disputed at this stage that the interest of Hedatan Bibi has devolved ultimately on defendant 1 Mohabir Roy. Latifan Bibi is defendant 2. Kanij Fatema Bibi's interest was purchased by the plaintiff by a kobala on 17-6-1942. The position, therefore, was that the plaintiff had a one-third share in the disputed property. Defendant 1 had another third share and defendant 2 had the remaining one-third share. It is not disputed further that the entire property is in the occupation of defendant l Mohabir Roy as a monthly tenant. The plaintiff instituted the present suit for partition of his one-third share by metes and bounds. Defendant l Mohabir Roy raised several defences but it is necessary to state only two of them for the purposes of the present appeal. It was pleaded that the present suit being a suit for partition of the property in the possession of a tenant, no decree for partition should be made because the plaintiff has no actual possession of the premises. It was also pleaded that ad valorem court-fees had to be paid on the plaint. The learned Subordinate Judge dismissed the plaintiff's suit on these two grounds.

(3.) It may be pointed out that the learned Subordinate Judge repelled the plaintiff's allegations that the defendant Mohabir Roy had surrendered the disputed tenancy or that there was a merger of the tenancy held by defendant 1 in the superior interest held by the plaintiff and defendants l and 2. Mr. Bakshi appearing for the plaintiff-appellant has not contested the propriety of these two findings of the learned Subordinate Judge. He has contested the propriety of the two findings reached by the learned Subordinate Judge, namely, that ad valorem court-fees were payable on the plaint and that the suit for partition was not maintainable, the property being in the possession of a tenant.