DURGA CHARAN ACHARJEE Vs. KHANDAKAR ENAMOL HUQ

JUDGEMENT

(1.) This appeal arises out of a suit for partition and is preferred by the third defendant. The plaintiffs are the owners of one fifth share in a certain town and Karim Bux, the predecessor in interest of the appellant, owned one tenth share of the same touch. In 1903, the plaintiffs and Karim Bax and other of sharers joined in bringing: a suit to recover some lands from, defendants Nos. 1 and 2 and they obtained a decree and were put in possession of the land. After possession bad been delivered, Karim Bux sold his interest in the touzi to defendant No. 3, the present appellant. The plaintiffs have now brought this suit for partition of the decretal lands. They say that in addition to their share in the whole towzi which extends over the decretal land they have acquired a farther share of 11 annas-4-srawias in the decretal land making their total interest in that portion, 4 grandas, and that the defendant No. 3 as the successor in-interest of Karim Bux owns the remaining Lanna-12-Grand.

(2.) The appellant set up a two-fold defence; one is, that the suit was one for partial partition and, therefore, could not be maintained, and the second, that after the suit in 1903 and before his purchase, there was an amicable division among all the combaters, by virtue of which Karim Bux became entitled to the separate possession of certain special plots of land, one of which was the plot obtained by the suit of 1903 and that the appellant was similarly entitled to hold separate possession of the land now in suit.

(3.) The first Court gave a decree for partition. Defendant No. 3 preferred an appeal, but that was dismissed. He then preferred a second appeal and the case was remanded to the Subordinate Judge for re-consideration. The learned Judges referred to the first line of defense set up by the appellant and then turned to the second line and remarked, that if the allegation of an ami sable partition were true, it might furnish a complete answer to the claim for partition and they said that the plaintiffs must establish that in respect of the land in suit they and the third defendant were not only joint owners but were also entitled to joint possession. When the case went again to the lower Appellate Court, the learned Judge said that in order to determine whether the plaintiffs were entitled to joint possession, it must be found whether the vendor of the third defendant (that is, the appellant), was entitled to exclusive possession or to joint possession. The point for determination, therefore, is, was defendant No. 4, there vendor of defendant No. 3 by mutual arrangement with his 80 sharers, placed in exclusive occupation of the land in suit as representing his share of the estate." After examining the evidence on this point, he carne to the conclusion that there was nothing to show that the land in suit was ever in the exclucive possession of defendant No. 4 or that the other of sharers had any specific land in their exclusive possession, and he implied that, in consequence, the plaintiffs were entitled to joint possession.