Ross, J.:— First Appeal No. 119 of 1923 is an appeal by the plaintiffs in a suit for partition. There is no contest now that a partition ought to be decreed nor is there any dispute about the shares of the parties. The portion of the preliminary decree to which the plaintiffs tike objection is the direction made by the learned Subordinate Judge that in making the partition the plots Nos. 493, 500, 500-963, 506, 508 and 509 will be allotted to the patti of the defendant No. 1. It appears that these plots Were purchased by defendant No. 1 in execution of a decree which, in the written statement, is said to have been a decree for rent but which the plaintiffs say was a decree for money, and there is a dispute between the parties as to whether these lands should be treated as raiyati lands of the defendant No. 1 or as bakasht lands to which all the maliks are entitled. The question, although discussed at the trial, did not properly arise at the stage of miking the preliminary decree. No issue was framed on this point and evidence was not pone into.
2. The learned Subordinate Judge has come to his decision largely on the ground that the plaintiffs did not claim the lands as bakasht lands in the plaint; but there was no necessity for any such pleading. All that the plaintiffs were required to do was to plead their title to and possession of and share in the property that was to be partitioned. The question which has been discussed with regard to these plots will properly arise for decision when the final decided made. This will be considered by the commissioner at the time of making the Raibandi and decided by the Subordinate Judge in passing the final decree.
3. I would therefore allow this appeal and direct that the decree of the Subordinate Judge be modified by omitting the direction with regard to the plots specified above.
4. First appeal No. 147 of 1923 is directed against an order passed by the learned Subordinate Judge on the 4th of May 1923 which runs as follows:
“Plaintiff has not deposited the Commissioner's fee. His pleader says he has no instruction. Unless a commission is issued final decree for partition cannot be made. The case is therefore dismissed for non-prosecution by the plaintiff”.
5. Now it has been decided by the Judicial Committee in Lachmi Narain Marvawri v. Balmukund Marwari(1) that after a decree has once been made in a suit the suit cannot be dismissed unless the decree is reversed on appeal; and where the plaintiff fails to appear and take further steps, the Court can properly adjourn the proceedings sine die with liberty to the plaintiff to restore the suit to the file on payment of all costs and Court-fees (if any) thrown away. Similarly, in Ranjit Sahi v. Maulvi Muhammad Qassim(2) it was decided by this Court that where a preliminary decree has been passed in a suit for partition the suit cannot be dismissed altogether at a later stage. In my opinion, the learned Subordinate Judge had no jurisdiction to dismiss the suit after a preliminary decree had been passed merely because there was delay in producing the commissioner's fee. It appears that this order is not a decree and, therefore no appeal lies. But there is an application for revision which must be allowed.
6. The result is therefore that Appeal No. 119 of 1923 is decreed and the preliminary decree of the Subordinate Judge, is modified as directed above. Appeal No. 147 of 1923 is dismissed; but Civil Revision No. 356 of 1933, is allowed and the order of the Subordinate Judge, dated the 4th of May 1923 is set aside and the partition proceedings will continue. The plaintiffs will be entitled to their costs in these bases and the costs are assessed at three gold Mohurs.
7. Kulwant Sahay, J.:— I agree.
8. Decree varied.