P L D 1956 Dacca 127 (PLP)

IBRAHIM, J.‑The appeal arises out of a suit for partition of 9 pakhis of land appertaining to Mouja Vikara, which belong to four sets of landlords who are described as Baliati Babus. Barai Babus, the Biawas landlords, and defendants Nos. 1 to 5 who are the appellants in this second appeal. The lands have been described in five Schedules to the plaint. Schedules 1 to 3 comprise 6 pakhis and Schedules 4 and 5 comprise 3 pakhis. The shares of these landlords are as follows: Baliati Babus 2 as. 13 gds. 1 kara 1 kraut Barai Babus 11 as. 9 gds. 1 kara 1 kraut Biswas landlords and the appellants 1 a. 6 gds. 2 karas 2 krants, 0 a. 10 gds. 2 karas 2 krants. The suit lands appertain to plot No. 119 of Mouja Vikara which has an area of 134.32 acres. This plot was a river bed at the time of the settlement operation. It came out as a char in 1320 B. S. Thereafter one Ekim Mullick took settle ment of the 3 pakhis described in plaint Schedules 4 and 5 from the Barai Babus. On the 6th of May 1920, corresponding to the 23rd of Baisakh 1327 B. S., the predecessor of the plaintiffs purchased this land from Ekim Mullick. The plaintiffs' predecessor also took settlement of the 6 pakhis in Schedules 1 to 3 from the same landlords, namely, the Barai Babus. Whether at the time of settlement he got possession in the suit lands or not, is not clear. In 1934 the plaintiffs brought Title Suit No. 162 of that year in the Munsif's Court at Manikganj against several persons, including one Manik Biswas whom the learned Subordinate judge describes as a relation and a co‑sharer of defendants Nos.‑ 1 to 5 in the 10 gds. 2 karas 2 krants share. In that suit they asked for declara tion of their title and for recovery of possession. The suit was decreed. On the 28th of June 1938, they got delivery of possession in Schedules 4 and 5 lands on removal of certain huts of Manik Biswas, the defendant. Attempt to take possession of the lands of Schedules 1 to 3 was resisted by the present defendants No. 1 to 5 who were not parties to that suit. They filed a miscellaneous case (claim case), i. e., Miscellaneous Case No. 191 of 1938, and were successful as regards 4 out of 6 pakhis in Schedules 1 to

3. The plaintiffs thereafter instituted the present suit on the 29th of March 1939, against defendants Nos. 1 to 5 only, for declaration of title and khas possession in the aforesaid 4 pakhis of land. The suit was dismissed by the Court of trial 'but was decreed on appeal. Defendants Nos. 1 to 5 preferred a second appeal to the High Court (S. A. No. 1 of 1941). This appeal was heard by Henderson, J., who was of opinion that the plaintiffs could not get khas possession, and that the real point was whether they could get joint possession. As to this he said: "If the plaintiffs are entitled to joint possession with the appellants in the disputed land, the appellants are equally entitled to joint possession with the plaintiffs in the remainder of the land covered by the plaintiffs' lease which is now in the possession of the plaintiffs . . . ." And accepting the suggestion of Mr. Gopendra Nath Das who appeared for the plaintiffs, he remanded the suit with liberty to the plaintiffs, to amend the plaint and trans form the suit into one for partition after bringing the whole of the land covered by their lease into hotch potch. After the remand order, the plaintiffs took settlement of the suit lands from the Baliati Babus and the Biswas landlords. Thus the plaintiffs acquired in all 15 as, 9 gds. 1 kara 1 krant share in the suit lands. They then amended the plaint, laying claim to 15 as. 9 gds. 1 kara 1 krant share in the suit lands and impleading all their lessors excepting the Barai Babus. On the 4th of March 1943, the Baliati Babus and Biswas landlords, who together have 4 as. share, filed a petition asking for a separate Saham in respect of their shares and allotting the same to the plaintiffs, who, they said, were their tenants. The suit was contested by defendants Nos. 1 to 5 on two grounds : (1) that the suit was bad inasmuch as the entire lands of the Mouja belonging to the four sets of co‑sharers were not brought into botch potch ; (2) that the omission to implead the Barai Babus was fatal to this suit for partition. Both their contentions have been overruled by the Courts below, and they have appealed against preliminary decree. The general rule, which governs a suit for partition, is that it should include the entire joint property of the co‑sharers. The underlying reasons are stated by Mookerjee, J. in Rajert dra Kumar Bose v. Brojendra Kumar Bose (37 C L J 191) "The rule that a partition suit should embrace all the joint property is neither arbitrary nor technical; it is founded on sound and weighty reasons. If the rule were not recognised and firmly applied, multiplicity of litigation would be the inevitable result. If suits for partition were allowed to be instituted in fragments, the jurisdiction of the trial Court and the forum of appeal might be altered ; it might be of paramount importance to a party litigant whether he should have a first appeal or a second appeal to the High Court, and whether he should at all be permitted to seek the judgment of the Judicial Committee with regard to the matters in controversy. The rule further ensures a just partition; parties might otherwise be greatly prejudiced as regards equitable distribution, relation of possession, liability for improvements, and adjustment of accounts." This rule has been occasionally relaxed in such cases as where different parts of the joint property lie in different jurisdictions, or where some portion of the property is incapable of partition or is, from its nature impartible or is held jointly with others who cannot be made parties to a joint suit for partition, and sometimes in favour of an alienee from a co‑sharer. In this case I am concerned with the case of an alienee, and the question is, whether, and if so, to what extent the rule can be relaxed 'in favour of an alienee. In Tarini Charan Chakrabutty and another v. Debendra Lal Dey and others (39 C W N 1044) Nasim Ali, J. upheld the partition decree obtained by a purchaser from a Hindu widow, observ ing that though the ordinary rule is that a partition suit must embrace all joint properties, there is also a supplementary rule that a suit for partition cannot include the ‑property in which each of the parties does not claim any interest. In Sris Chandra Datta Chaudhuri and others v. Mahima Chandra Datta Chaudhuri and another (23 C L J 231). Mookerjee, J. decided the case on the principle stated in the head‑notes 'Two properties A and B were jointly owned by X and Y. By mutual arrangement X held possession of A while Y of B, but no final and definite partition was effected between the parties. Y, though in possession of B, trans ferred to Z his one‑half share in A : Held that Z was entitled to claim partition as against X." In this case the transferee was a permanent tenure-holder. In Parbati Churan Deb v. Ain‑ud‑Deen and others (I L R 7 Cal 577) partition was refused to a holder of a Mokarary lease in a small portion of the joint land, from 12 as co‑sharer. Garth, C. J. observed "If the plaintiff, was entitled to compel a partition as against the defendants of an area of two drones only, the defendants might, in respect of the same estate, be subjected to forty or fifty claims for partition at the suit of forty or fifty different persons, each of whom is in the plaintiff's position, and might be put to great expense in consequence of his estate being divided into forty or fifty separate areas," I do not think any inflexible rule can be laid down either that a transferee front a co‑sharer cannot maintain a suit for partition in any case, or that he can maintain such a suit in every case. As observed by Nasim Ali, J. in Tarini Charan's case, the general rule is a rule of equity and convenience and can be relaxed and a partial partition allowed, where it is not proved that the parties will be prejudiced or inconvenienced by such partition,' He decided that case on this principle, observing: "In the present case, it has not been proved that the defendants would be in any way prejudiced or inconveni enced if the application of the general rule be relaxed and partial partition be allowed." That, to my mind, is the true question that has to be asked when a transferee from a co‑sharer sues for partition of a portion of the joint property. The principle on which Mookherjee, J. decided Sris Chandra's case, cannot, in my opinion, be accepted as a rule of universal application. Sup posing, in the hypothetical case discussed by Mookerjee, J. at page 233 of the report, Y had divided his interest into several parts and transferred each to a different person, what would be the position of X, if the principle enunciated were applied ? X would be subjected to several partition suits. In such a case it would be unequitable to relax the rule in favour of those transferees. In the present case I find that the learned Subordinate Judge has taken a mistaken view of the law in this respect. He has relied on the decision on Nasim Ali, J, in Tarani Charan's case, but has overlooked that Nasim Ali, J. did not mean to lay down that a transferee from a co‑sharer is entitled to maintain a suit for partition irrespective of the question of prejudice or inconvenience to the co‑sharers of his transferors. Defendants Nos. 1 to 5 in this suit have a small share in the taluk, namely, 10 gds. 2 karas 2 krants, and they are in possession of 4 pakhis of land only. It has not been shown that this land is more than what they are entitled to in the Mouja. The defendants allege that these are palan lands. If the plaintiffs are allowed partition, the land that would fall to their share would indeed be very small. These circumstances call for consideration as to whether this is a fit case where the general rule should give way to the com plimentary rule. The learned Subordinate Judge has paid no attention to this question. I will, however, assume, but without deciding, that the circumstances are such that the plaintiffs can have partition decree, if the suit is otherwise good. But it seems to me that they are, not entitled to maintain this suit in the absence of the Barai Babus who have been left out. The plaintiffs are not the purchasers of the interest of the Barai Babus but are their lessees ; conse quently, the Barai Babus are still the co‑sharers of the defend ants. By the transfer to the plaintiffs they have not ceased to be so. Now, if the plaintiffs obtain a decree for partition, that will not be binding on the Barai Babus, and the result of the partition, if allowed, would be that the portion allotted to the plaintiffs would be cut off from the joint property, whereas the portion allotted to the defendants would remain joint as before, liable to be partitioned at the instance of the Barai Babus, that is to say, there will be incomplete partition. I, with respect, agree with the decision in Parbah Churan Deb's case. In my opinion the suit is not maintainable inasmuch as one set of the Zemindars has not been made parties. The objection was taken by the defendants at the earliest moment. The suit must, in these circumstances, be dismissed. I first heard this appeal on the 15th and 16th of April 1953, and reserved the judgment. But before I could deliver the judgment, Mr. Anath Bandhu Bhattacharjee, appearing for the respondents, filed affidavits, alleging that respondents Nos. 7. 11, 17, 25, 30, 31, 36, 37, 39, 55‑ and 62 were dead and their heirs were not substituted in due time, and that defendant No. 48 had not been impleaded. I heard arguments afresh. I find that the heirs of respondents Nos. 7, 36, and 62 are on record and no question of abatement arises, so far as they are concerned. Respondents Nos. 11, 17, 25, 30, 31, 37, are defendants Nos. 7, 13, 21, 26, 27 and 33, respec tively. They are some of the plaintiffs lessors, as is clear from their petition filed on the 12th of December, 1942 Mr. Anath Bandhu Bhattacharjee has admitted before me that respondents Nos. 39 and 55 are also their lessors, The plaintiffs' case being that the suit is maintainable in the absence of their lessors, and in fact the decree having been passed in the absence of some of the lessors, the plaintiff: cannot now contest on the ground that the appeal is not maintainable because the heirs of some of their other lessor: have not been brought on record. Defendant No. 48 has been described as belonging to the defendants' group of co‑sharers, i.e., in 10 gds. 2 kara, 2 krants share. If that is so, the appeal is saved by Order XLI, rule 4 of the Code of Civil Procedure so far as this defendant is concerned. It was faintly contended ‑at one stage that Order XLI, rule 4 does not apply unless the non‑appearing defendant or plaintiff is brought on record. I do not think that this argument is sound. In order to apply this rule, it is not necessary that the non‑appearing plaintiff or defendant should be impleaded in the appeal. See Satulal Bhattacharjee and others v. Asiraddi Sheikh (38 C W N 743), Abdul Rahman and others v. Girjesh Bahadur Pal and others (A I R 1938 All, 235), Yadali Choudhury v. Benoy Kumar Acharjya Choudhury and others (54 C W N 2 D R 280) and Girija Prasanna Deb Gupta v. N. M. Khan and others (46 C W N 227). Mr. Anath Bandhu Bhattacharjee argued that defendant No. 48 would be benefited by the partition decree, and that the appeal could not be heard as he was not brought on record. I do not understand this absurd argument. I do not see how, if the partition decree is set aside, any of the co‑sharers of defendants No's. l to 5 in the 10 gds, 2 karas 2 krants share can be injuri ously affected. The deceased respondents Nos. 11, 17, 25, 30, 31, 37, 39 and 55 should be shown in the memorandum of appeal as dead. In the result, this appeal is allowed with costs throughout; the judgments and decrees of the Courts below are set aside; and the suit is dismissed. Leave to appeal under clause 15 of the Letters Patent is asked for and is granted. K. B. A. Appeal allowed.