P L D 1961 Dacca 831 (PLP)

IDRIS, J.‑This is an appeal against the ex parte decree passed by the first Additional Subordinate Judge, Chittagong, in partition suit No. 18 of 1953. The partition suit was brought by plaintiffs- respondents Nos. 1 and 2 for getting 2/3rd share of the disputed land on partition.

2. Briefly stated, the case of the plaintiffs is that the disputed land originally belonged to three persons, namely, Mahabbat Ali, Ramjan Ali and Magan Ali, in equal shares. By inheritance and also by various transfers, defendant No. 15 Muhammad Solaiman (minor) and defendant No. 16 Mariam Khatun became owners of 2/3rd share formerly belonging to Mahabbat Ali and Ramjan Ali. They possessed that 2/3rd share described in schedule ka along the northern disputed portion of the 3rd schedule land, according to conventience. The remaining 1/3rd share of the disputed land belongs to defendants 3 to 9, 17 and 18 as successors‑in‑interest of Magan Ali. Defendants 15 and 16 transferred their 2/3rd share (ka schedule land) in the disputed land by the usufructuary mort gage deed Exh. 7 on the 25th of March 1951 to the plaintiffs. Since the usufructuary mortgage, plaintiffs have been in possession of the ka scheduled land. In the revisional Settlement record the disputed land was wrongly recorded only in the name of Lal Meah, son of Magan Ali. Lal Meah died leaving a daughter Ayesha Khatun, (defendant No. 9), a son Abdul Hoque (defend ant No. 17) and a widow Full Meher (defendant No. 18). Defend ant No. 17 created a collusive deed of agricultural loan for 99 years in regard to the ka scheduled land in favour of defend ants 1 and 2 on 20‑3‑

51. On the basis of the fraudulent deed, defendants 1 and 2 had been disturbing plaintiff's possession in the ka scheduled land. Defendants 17 and 18, who are heirs of Lal Meah, have only 1/3rd share of the disputed land. They have not agreed to partition in spite of the repeated demands by the plaintiffs. The plaintiffs had been finding it inconvenient to possess the land in ejmali. So, the suit for partition and for allotment of 2/3rd share of the disputed land to them on partition.

3. Defendants 1 and 2 filed a written statement contesting the claim of the plaintiffs. Their defence, inter alia is that the suit for partition is not maintainable as the plaintiffs have no right, title and possession in the suit land and as the instance of usufruc tuary mortgages without possession, the suit for partition is not maintainable. The disputed land belonged to Lai Meah ; his name was correctly recorded in the Revisional Settlement Record as the owner of the disputed land. On his death the disputed land passed to his heirs defendants 17, 18 and

9. Defendant No. 17 settled the ka scheduled land with defendants 1 and 2 for 99 years by a patta dated 20‑3‑51 on taking Rs. 1,000 premium. Since the grant of the lease, defendants 1 and 2 have been in possession of the ka scheduled land.

4. Defendants 3 to 8 and defendants 10, 15 and 16 also filed two separate written statements but they did not challenge the claim of the plaintiffs for partition. 5. 3‑9‑53 was fixed as the date for positive hearing of this suit. Plaintiffs and defendants 5 to 8 were ready. Defendant No. l filed a petition for time on the ground of illness. The petition was supported by a medical certificate. Plaintiffs filed an affidavit stating that the statement made in the petition for time was false. The learned Subordinate Judge rejected the petition for time. Defendant No. 1 got ready through his Pleader and the learned Subordinate Judge started hearing of‑the suit. On that date P. W. 1 was partly examined. The suit was adjourned to 1‑10‑53 for further hearing P. Ws. 1 to 5 were examined and cross -examined on that date. As the mortgage deed could not be prov ed before the recess, the plaintiffs intimated the Court that they would have to withdraw from the suit in case no witness be avail able and if no time for the purpose be granted. The learned Subordinate Judge ordered to put up the matter after recess. During recess an attesting witness of the mortgage deed arrived. After recess, plaintiffs prayed for examination of that witness, but defendants 1 and 2 or their Pleaders did not appear before the Court. One of the Pleaders of defendants 1 and 2 was reported to have stated that he would not appear. The learned Subordinate Judge waited upto 4‑15 p. m. and then decreed the suit ex parte in preliminary form. On 3‑10‑53 defendant No. 1 filed all appli cation under Order 1X, rule 13 of the Code of Civil Procedure for setting aside the decree. It was rejected on contest on 2‑12‑

53. Then on 14‑4‑53 the present appeal was filed against the ex parte decree.

6. The first point pressed on behalf of the appellant is that, the suit for partition is not maintainable at the instance of the usufructuary mortgagees who are not in actual possession of the mortgaged land and that, as such, the decree should be set aside. According to the evidence of P. W. 5 Abdul Motaleb the plaintiffs mortgagees are out of possession of the mortgaged land the mortgagors (defendants 15 and 16) were also not in possession of the mortgaged land prior to the mortgage. But for the fact that the mortgagees are out of possession of the land, it cannot be held that the suit for partition is not maintainable at their instance. According to section 44 of the Transfer of Property Act, a usufruc tuary mortgagee of a share of an immovable property acquires his transferor's right to joint possession and he is entitled to bring a suit for partition.

7. In the case of Hariharayyar and another v. Ahammad Unnai and others (A I R 1940 Mad. 491), it was held that under section 44 of the Transfer of Property Act, not only the transferee of a share but also of any interest therein can sue for partition but the section imposes a limitation that it must be necessary to give effect to the transfer. In the present case, the question for consideration is whether it is necessary to have a partition to give effect to the transfer, that is, the mortgage in favour of the plaintiffs. The mort gage in the present case is a usufructuary one and so, the plaintiffs are entitled to possession of the mortgaged property. Partition is therefore, necessary for giving possession to the plaintiff mortgagees. In the case of Moti Meghaji Munwadi and others v. Amarchand Rajaram Marwadi (A I R 1933 Bom. 121), an objection was raised that a mortgagee from a so‑parcener, who is not himself in possession, could not ask for partition and possession but that his remedy was to bring the right, title and interest of the mortgagor to sale in enforcement Of' the mortgage. The High Court made the following observation in that case :‑ "The only steps he could take to enforce this right would be to get the share of his mortgagor in the family property ascer tained by partition and then claim his right of possession."

8. We are of the view that the present suit for partition at' the instance of the plaintiffs, who are usufructuary mortgagees, though without possession, is maintainable. We are also of opinion that a suit for partition is maintainable at the instance of the usufructuary mortgagee whether he is in actual possession or out of possession of the mortgaged land, provided the mortgagor is a party to the suit and the suit is necessary for giving effect to the mortgage.

9. In case the mortgagee be not in actual possession of the mortgaged land it would be necessary to pray not only for partition but also for khas possession of the share allotted to him on ejectment of other co‑sharers from that portion. But this suit has not been framed in that way. The prayer in the suit is for a partition and for confirmation of the plaintiffs' possession in the ka scheduled land on allotment of their portion to their 2/3rd share. But we have already noted this statement of P. W. 5 for the effect that the plaintiffs are out of possession of the mortgaged land. Objection has also been raised in this suit regarding title of mort gagors (defendants 15 and 16) in 2/3rd share of the disputed land. $o, the adjudication of question of title of the mortgagors in the suit land would also be necessary. But there is no such prayer, in the plaint. But it would not be proper to dismiss the suit on the ground of non‑maintainability for these reasons.

10. The learned Advocate for the respondents realising the above difficulties, made the submission that the plaintiffs could be allowed to make necessary amendments in the plaint and the appeal could be decided on the evidence on record. We are con vinced that for doing proper justice in this case plaintiffs are to be given an opportunity to amend the plaint for adding the prayer for khas possession on partition after declaration of mortgagors' and plaintiff's 2/3rd share in the disputed land. But if the prayer be allowed in this Court at this stage, then the defendants would be highly prejudiced. Moreover, no written prayer for amendment of the plaint has yet been submitted. In the circumstances, all that can be done without any prejudice to any of the parties is to send back the suit on remand to the trial Court with the direction that plaintiffs are to be allowed an opportunity to amend the plaint for khas possession on partition after declaration of mort gagors' and plaintiffs' right and title in 2/3d share of the disputed land. Defendants are also to be allowed an opportunity to file additional written statement if they consider it necessary, after such amendment.

11. The second point urged is that the judgment and ex parte decree are liable to be set aside as the mandatory provisions of law relating to judgment were not complied with by the learned Subordinate Judge. Order XX, rule 5 of the Code of Civil Procedure provides that in suits in which issue have been framed, the Court shall state its findings or decisions with reasons thereof upon each separate issue. In this suit ten issues were framed five witnesses were examined but the learned Sub-ordinate Judge did not discuss the evidence of these witnesses and did state his finding with reasons thereof with regard to any of these issues The learned Subordinate Judge merely noted that claim of the plaintiffs was proved and that they would get an ex parte decree for partition. As the mandatory provisions of Order XX, rule 5, of the Code of Civil Procedure have not been complied with, the judgment and decree are liable to be set aside.

12. The third point urged is that as there was a proposal for withdrawal of the suit of the plaintiffs, there was a justification for non‑appearance of the defendants 1 and 2 and their Pleader after recess. We do not consider it necessary to enter into this' question, as we are bf opinion that the appeal is to be allowed and the case is to be sent back on remand to the trial Court. The learned Advocate for the respondents Nos. 1 and 2 sub mitted that the appeal is not maintainable after dismissal of the miscellaneous case under Order IX, rule 13 of the Code of Civil Procedure and in support of this contention reference was made to the case of Rifaqat Hussain v. Bibi Tawaif (I LR39All.393). The ex parte decree in the present case was passed on 1‑10‑

53. The miscellaneous case under Order IX, rule 13 of the Code of Civil Procedure for setting aside the ex parte decree was filed on 3‑10‑

53. It was dismissed on contest on 2‑12‑

53. The present appeal was filed on 14‑1‑

54. In the case reported in I L R 39 All. 393 there was at first an appeal to the District Judge to set aside the ex parte decree passed by the Munsif. While the appeal was pending, an application under Order IX; rule 13 of the Code of Civil Procedure for setting aside the ex parte decree was filed before the Munsif. The appeal was dismissed for default. Then the Munsif dismissed the miscella neous case under Order IX, rule 13 of the said Code on the ground that no miscellaneous ease under Order IX, rule 13 of the Code of. Civil Procedure would be maintainable after the appeal had been dismissed. Against that order of dismissal there was an appeal to the District Judge who allowed the appeal, set aside the ex parte decree and sent the suit back on remand for hearing on merits. Against that order there was the appeal to the high Court. The High Court held that the dismissal of an appeal for default against an ex parte decree would be no bar to the maintain ability of an application under Order IX, rule 13 of the Code of Civil Procedure, though an appeal heard on merits would bar such an application. But in the present case, the position is quite the' reverse. The miscellaneous case was dismissed on merit before the filing of the appeal. It is nowhere laid down in the above‑men tioned case that the dismissal of the application under Order IX, rule 13 of the Code of Civil Procedure would stand as a bar to the appeal. In the case of Ghsnendra Mohan Bhadury and another v. Profullananda Goswami and others (32 C W N 101), it has been held that where a suit has been decided ex parte the reme4 by way of appeal against the decree as well as the remedy by way of Application under Order XI, rule 13‑of the Code of Civil Procedure were both open to the person against whom the decision was pass ed and in an appeal in such a case it is open to the appeal to urge that he was prevented by sufficient cause from appearing when the suit was called on for hearing. So the contention that the appeal is not maintainable because of the order of the dismissal of the application under Order IX, rule 13 of the Code of Civil Procedure, cannot be accepted..

13. The appeal is allowed, the judgment and ex parte decree are set aside and the suit is sent back on remand for fresh hearing according to law after allowing the plaintiffs an opportunity to amend the plaint and after allowing the defendants an opportu nity to file additional written statements if they so consider necessary. It may be added here that on such amendment of the plaint for khas possession on partition additional Court‑fee would be apparently required. The suit is already too old. In the circumstances, it is desirable that the hearing of the suit should be expedited on receipt of the records on remand. Plaintiffs should make the prayer for amendment of the plain within a month from the date of the receipt of records by the trial Court. In case no prayer for amendment is made within this above period, the suit will proceed afresh in the present form according to law at the risk of the plaintiffs. Parties will bear their respective costs in this appeal. HAMOODUR RAHMAN, J. ‑I agree. A. H. Case remanded.