BALIKANTA DOSS Vs. RAM TAHAL DOS

JUDGEMENT

(1.) In this case it appears that a certain land was leased to the defendant and described in the pattah as half of land enclosed within certain boundaries. The other half of the land within the said boundaries is said to have been leased to. the plaintiffs predecessors. Subsequently the landlord brought ejectment suit against the plaintiff's predecessors, and, thereafter, settled the land covered by that suit with the present plaintiff. The present plaintiff sued for partition. The defendant pleaded that the land held by him was distinctively demarcated, and formed a separate holding. He stated in paragraph 11 of the written statement,--Although for want of ability and prudence in the village people who drafted the documents, they with the object of avoiding the trouble of describing the boundaries of separate lands held by different persons within the 16 annas boundaries, gave no separate sets of boundaries in the said pattah and qabuliat for the lands, (yet) the said two chukani lands have in reality long been separate-" The parties went to trial on the issue whether the chukani holdings of the plaintiff and defendant No. 1 were separate or not. The Munsif in deciding this issue referred to the fact that the boundary given in the defendant's pattah was the boundary of the land of which only a half share had been leased to him, but he thought that that evidence in itself was not sufficient to prevail against the other evidence in the case, and his final conclusion was that the two holdings were not joint, but separate.

(2.) On appeal the District Judge accepted the facts found by the Munsif but held that on these facts the Munsif ought to have granted a decree. He based his decision on two rulings of this Court in which it was held, firstly, that undivided shares in parcels of land cannot constitute distinct holdings, and secondly, that if co-owners are in possession of different portions of a joint property by mutual arrangement a suit for partition is maintainable. But on the findings of fact arrived at by the Munsif which, as we have said, the learned Judge accepted, the holdings of the parties in this case were not undivided shares of parcels of land and they themselves were not co-owners. Accordingly the rulings cited by the learned District Judge have no application.

(3.) The learned pleader for the respondent very frankly concedes that he cannot uphold the decision of the learned District Judge as it stands, but relying on the decisions in Hemadri Nath Khan V/s. Ramani Kanta Roy 24 C. 575 : 1 C.W.N. 406 and in Sundar V/s. Parbati 12 A. 51 (P.C.) : 16 I.A. 186 he argues that partition should be allowed on equitable grounds. But neither of those cases appears to us to be any authority for holding that a partition suit is maintainable between parties amongst whom there is no existing joint interest of any kind. The findings of fact in this Case by which we are bound are to the effect that there is no community of interest between the plaintiff and the defendant, and that being so, we think that no partition is possible.