SASI MOHAN SAHA Vs. HARI NATH SAHA

JUDGEMENT

(1.) This appeal by the defendants arises out of a partition suit. The facts are that the plaintiff Hari Nath, Madhu Sudan and Radha Charan (father of the appellants Sasi Mohan and others) were three brothers living jointly in the common ancestral house. In 1916 the present plaintiff Harinath instituted a suit for partition of their family properties against his two brothers. In that suit a Commissioner was appointed who proposed a partition of the homestead of the parties in a certain way. The matter came up before the Court which accepted the Commissioner's report with a slight modification with which we are not concerned at present. The decree passed in the suit was in effect that the suit be decreed the Commissioner's report and map form parts of the decree, and the allotments made by the Commissioner subject to the modification noted above be the basis of the partition.

(2.) By that decree the residential portion of the homestead was partitioned but some portions were left ejmali or joint among the parties. They consisted of pathways, tanks, cremation ground, ditches &c...&c.... Subsequent to this suit the plaintiff purchased the share of Madhu Sudan and is now entitled to two-thirds of the homestead. The present suit is brought by him for partition of those portions of the homestead which were kept ejmali and joint in the former suit. Both the Courts have decreed the plaintiffs suit. They have held that the properties in suit were excluded from partition in the previous suit and hence are liable to re-partition. The learned District Judge in the appellate Court remarked: It should be noted that at the request of the parties the properties which form the subject-matter of the present appeal were excluded from partition and were subsequently held jointly.

(3.) It is proper that at this stage we should understand correctly the position in which the parties stand at the present moment. The expression used by the learned Judge that the properties in suit were excluded from partition in the previous suit should be understood as meaning that the properties in suit were by agreement of parties left out of partition and allowed to remain joint as before. Objection is taken by the learned advocate for the appellant to this remark on the ground that it is not correct to say that the properties which were left joint under the former decree were so left at the request of the parties. He has placed before us the report of the Commissioner in the previous suit and we find on a perusal of it that the objection taken to the remark that at the previous partition the parties agreed that some of the properties should remain joint is not without substance.