DELO SINGH Vs. JAGDIP SINGH

JUDGEMENT

(1.) This is an appeal by the defendant in a suit for partition. The plaintiffs brought a suit against Phalli Singh, his sons and grandsons on the basis of a hand note and obtained a decree, and on 3-1-42 in execution of that decree they brought to sale and purchased an eight anna share in one property as representing the share of Phalli, his sons and grandsons. The decree in the suit was dated 23-4-40 and the eight anna share, had been attached before judgment on 22-4-39. The defendant appellant was of the same family as Phalli Singh, and the plaintiffs sued for partition of the eight anna share purchased by them as against the defendant appellant.

(2.) The defendant appellant contested the suit on various grounds, the main allegation of fact on his behalf being the allegation that there had been a prior partition in the family of himself and Phalli Singh whereby the 16 annas of the property in suit had been allotted to him. On this question of fact, however, the decision of the lower Courts was against the appellant and that decision could not be challenged in second appeal.

(3.) Five contentions have been raised on behalf of the appellant first, that the suit was not maintainable as the plaintiffs had made no prayer for possession; secondly, that the suit was not maintainable as the plaintiffs had not included in their partition suit the entire properties which belonged to the joint family of the appellant and Phalli his sons and grandsons; thirdly, it was contended that Phalli, his sons and grandsons were necessary parties to the suit; fourthly, it was contended that the plaintiffs in execution of their decree could only purchase the right, title and interest of Phalli with or without the interest of his sons and grandsons, and that they could not themselves in their execution proceedings determine the share at eight annas, and that the share must be determined in a suit brought against the family of Phalli and the appellant; and fifthly, it was contended that as the property is in possession of sudharnadars the plaintiffs suit is not maintainable.