KAILASH CHANDHA DAS Vs. NITYANANDA DAS

JUDGEMENT

(1.) In this appeal, which is directed against a preliminary decree in-a suit for partition of joint properties, two objections have been urged on behalf of the appellant, namely, first, that the Subordinate Judge ought not to have directed a partition till the plaintiff had included in the suit properties jointly owned by the plaintiff and the defendant as well as other parties secondly, that the appellant was perjudiced as he had not Been allowed opportunity to adduce evidence.

(2.) So far as the first of these contentions is concerned, we may observe that it is opposed to a series of decisions of this Court amongst which reference may he made to those of Radhakanta Shaha V/s. Bipro Das Roy 1 C.L.J. 40 and Jogendra Chandra Shaha Chowdhary v. Sris Chandra Shaha Chowdhary S.A. No. 1788 of 1907 decided by Brett and Fletcher, JJ. These cases lay down the proposition that a suit for a partition of a portion of a joint estate; is. maintainable when such portion is the only property held jointly by the plaintiffs and defendants although the defendants may be jointly interested with persons other than the plaintiffs in the remaining portion of the estate. This is merely a recognition of the elementary principle that, a suit for partition, properly framed, does not include within its scope a property in which some only of. the parties are interested as owners. No reasons have been assigned why we should depart from this reasonable and well settled rule. The contention of the appellant, therefore, that this suit should not proceed till the plaintiff includes with in its scope that portion of the dwelling house which is owned jointly by the plaintiff, the defendant and other co-sharers not parties to this litigation, cannot be supported.

(3.) In support of the second ground, it was urged that the defendant was not allowed sufficient opportunity to establish by evidence; that there was an arrangement between the parties by reason of which no portion of the dwelling house could be partitioned except in the presence of all the parties interested therein. Our attention was invited to the fifth paragraph of the written statement in support of this objection. But it is quite clear from the issues raised in the suit that the question now suggested is not covered by any of them and we are not prepared to believe that the question was seriously raised in the Court below. In fact from an examination of the fifth paragraph of the written statement it does not appear that there was any such agreement as would be binding and conclusive between the parties. It is, therefore, too late for the appellant now to take this objection. We may add that besides this matter of the alleged agreement, it is riot explained for what other purpose evidence was required before the preliminary decree. was made. The mere suggestion that evidence, if adduced might have been of some use, is not sufficient to justify the interference of this Court. The second point also, therefore, fails.