HARI SAHU ALIAS HARIHAR SAHU Vs. JANHA SAHU

JUDGEMENT

(1.) THE present First Appeal of the year 1979 is at the instance of defendant No. 1 in a suit for partition. Plaintiff -respondent No. 1 filed title suit No. 7 of 1978 - I in the Court of the Subordinate Judge at Anandpur seeking partition of her undivided 1 /8th share in the suit property. The suit was contested by the defendants and ultimately the trial Court decreed the suit in the preliminary form in part on contest against defendants 1, 9, 11, 12, 13 and 15 and ex parte against other defendants. The share of the plaintiff was determined as 1/12th and there was a direction to the Civil Court Commissioner to effect partition by metes and bounds except the dwelling house. The learned trial Judge in deciding the suit for partition framed issues, namely :

(2.) THE learned trial Judge has answered the issues and in particular deciding issue No. 8 has held inter alia that the factum of adoption as claimed by defendant No. 15 has well been proved and there is implied admission as to such adoption by defendant No. 1. The other issues have also been considered and by a reasoned judgment the suit has been decreed in the preliminary form.

(3.) GETTING inspiration from the aforesaid observations of the Division Bench in AIR 1953 Hyd. 170 (supra) argumen is made that in the present case such a question as to dispute between defendands 1 and 15 was neither relevant nor pertinent and the decision of the trial Court with regard to issue No. 8 is bad in law. Framing of the issue itself was not necessary and adjudication thereof has unnecessarily complicated the issue. Attention is further drawn to another decision reported in AIR 1958 Mad. 496 (P. R. M. K. Muhammad Abdul Rahiman Narakayar v. Peer Muhammad and Ors.). In the said decision it was observed that undoubtedly it is true that in a suit for partition property so -called, the shares of the several parties should be ascertained, a preliminary decree declaring their shares should be passed and a final decree effecting a division should be made. By referring to a decision reported us AIR 1940 All 399 (A) (Noor Mohammad v. Zainul Abdin), it was recorded by the learned single Judge :