DURGA CHARAN ACHARJEE Vs. KHUNDKARENAMAL HUQ

JUDGEMENT

(1.) THIS is an appeal by the third defendant in a suit for partition of joint property. The lands are comprised in three plots and are included in an ayma estate within the Hooghly Collectorate. The case for the plaintiffs is that they have acquired a nine tenths share of the lands and the third defendant has acquired the remaining share. The plaintiffs accordingly seek to have these lands partitioned. One of the defences is that this is really a suit for a partial partition and is consequently not maintainable. The Court of first instance overruled this contention, on a ground, which cannot be sustained and which need not he examined for our present purpose. Upon appeal, the Subordinate Judge has confirmed the decree of the Trial Court but the reasons assigned by him in support of his conclusion are not intelligible. He sets out the first question for determination in these terms; namely, whether the suit is one for partial partition and whether it is maintainable. But his discussion of the point is difficult to follow. The third defendant has purchased the lands in suit from the fourth defendant and the recital in the conveyance shows that according to the vendors of the appellant he had a certain share in the entire estate and that the lands conveyed were in his occupation as representing that share. THIS is not admitted by the plaintiffs. If the allegation is true, it may furnish a complete answer to the claim for partition: Mahomed Fazlur Rahman v. Mahomed Fayzur Rahman 10 Ind. Cas. 354 : 15 C.W.N. 677., Burugapalli Sriramulu v. Nandigam Subbarayadu 10 Ind. Cas. 57 : 10 M.L.T. 313., Sris Chandra v. Mahima Chandra 33 Ind. Cas, 17 : 23 C.L.J. 231. If the fourth defendant, who was interested in all the lands of the estate, was, by mutual arrangement with his co-sharers, placed in exclusive occupation of the lands now in controversy, as representing his share, that arrangement cannot equitably be disturbed by the plaintiffs, unless they seek a partition of all the lands comprised in the estate. In the present suit, however, they have limited their claim to the disputed lands which form only a small part of the entire land of the estate. Consequently the plaintiffs rhnst establish that, in respect of the lands in suit, they and the third defendant are joint owners and entitled to joint possession. In order to determine whether they are entitled to joint possession, it must be found whether the vendor of the third defendant was entitled to exclusive possession or to joint possession. THIS point has not been investigated by either of the Courts below, and till the point has been determined, the validity of the claim for partition cannot be decided. It is essential in a suit for partition that the plaintiffs should establish that they and the defendants are not only joint owners but are also entitled to joint possession, because the object of the suit is to transform the joint possession into possession in severalty Atrabannessa Bibi v. Safatullah Mia 31 Ind. Cas. 189 : 22 C.L.J. 259 : 43 C. 504.

(2.) THE result is that this appeal is allowed, the decree of the Subordinate Judge set aside and the case remanded to him for re-consideration. Costs will abide the result.