KHAZIR BHAT Vs. AHMAD DAR

JUDGEMENT

(1.) THE petitioners who are plaintiffs in a partition suit have come up in revision under S. 115 of the Code of Civil Procedure to canvass the correctness of the decision of the District Judge at Srinagar who, on appeal, remanded the suit to the trial court for fresh disposal in the light of the observations made by him in his judgment and according to law.

(2.) THE parties are Muslims governed by Mohammedan Law. The plaintiffs -petitioners brought the suit for partition in the court of the Munsiff at Srinagar alleging that they are entitled to certain specified shares in the suit property as heirs under the Mohammedan Law. The defendants who are the other heirs admitted that they and the plaintiffs .are entitled to the property in suit as co -heirs, but contended that the entire property available for partition was not shown in the plaint and that the suit was consequently incompetent, being one for partial partition. The defendants also specifically mentioned in their written statement the other property which the plaintiffs ought to have included in their plaint and which also ought to be partitioned between the parties.

(3.) THE trial court as well as the appellate court (District Court) went into the question whether the contention of the defendants that certain additional property is held by them and the plaintiffs as tenants in common is true or not. This they did in spite of the vigorous contention of the plaintiffs that the additional property alleged by the defendants to be available for partition in fact belonged exclusively to the plaintiffs and that the plaintiffs did not ask for partition or any other relief in respect of it. The District Court on the footing that the property described in the plaint did not exhaust the entire property held by the parties as tenants in common directed the plaintiffs to amend the plaint sq as to claim partition of the entire properties.