AMBIKA PRASAD SINGH Vs. PERDIP SINGH

JUDGEMENT

(1.) This appeal arises out of a suit for the partition of a mouza called Patailia in which the parties have different shares. The defendant No. 1 appeals against the final decree, on two grounds: first, that the allotment of shares is improper; and, secondly, that the costs before the preliminary decree should not have been decreed in favour of the plaintiff.

(2.) As regards the first point, we think that the appellant has a good ground for complaint. The commissioner, allowed Mm one block to the north; but the learned Judge has split that block up into three and allotted him the one farthest from his house. We think that he should have his portion of the northern block as near as possible to his house, that is to say, he will have his northern block from the north-east commencing from Nos. 1852, 1860, 1861, 1862 and go west-wards so as to make this block equal in value to the block which has been allowed him to the north-west. Defendant No. 5 will get the block to his west and defendants Nos. 2 to 4 will got the block to the west of defendant No. 5. The appellant will retain his eastern and south-western blocks and the allotment of blocks will be altered accordingly.

(3.) The next question is as to the costs. It is contended that the costs before the preliminary decree should not have been allotted to the plaintiff and the cases of Shama Soondaree Debia v. Jardine Skinner Skinner & Co. (1869) 12 W. R. 160. and Dildar Ali Khan v. Bhawani Sahai Singh (1907) I. L. R. 34 Calc. 878. are quoted in support of this contention. As the appeal is by one of the defendants only, it is contended that, under Order XLI, Rule 4, of the Civil Procedure Code, we can make a decree in this respect that will enure to the benefit of all the defendants.