SHASHI BHUSHAN BEED Vs. JOTINDRA NATH ROY CHOWDHRY

JUDGEMENT

(1.) This is a suit for partition of the lands described in the two schedules attached to the plaint. It is admitted that the plaintiff is co-owner with the defendants of the lands described in schedule 2; but his title to, and possession of, any interest in the lands described in the first schedule to the plaint is denied.

(2.) The suit was decreed by the Subordinate Judge, and a preliminary decree for partition was passed.

(3.) The defendants appealed to the District Judge. The District Judge came to no clear finding on the principal question in the suit, namely, whether the plaintiff was entitled to partition of the lands described in the first schedule. He regarded the suit as one to obtain a declaration of the plaintiff s title and possession, under the garb of a suit for partition; and he considered that the court-fee payable should be calculated ad valorem on the property in suit and the case retried as a suit for declaration of title and recovery of possession. This view appears to have been accepted or, at any rate, acquiesced in, by the plaintiff s pleader; and he agreed to amend his plaint, so as to make it one for a declaration of the plaintiff s title as well as for partition and to pay the necessary Court-fee. The learned District Judge thereupon directed that the case should go back to-the Subordinate Judge, apparently for retrial.