Durga Charan Acharjee v. Enamol Huq

1. This appeal arises out of a suit for partition and is preferred by defendant 3. The plaintiffs are the owners of one-fifth share in a certain towzi and Karim Bux, the predecessor-in-interest of the appellant, owned one-tenth share of the same towzi. In 1903, the plaintiffs and Karim Bux and other cosharers joined in bringing a suit to recover some lands from defendants 1 and 2 and they obtained a decree and were put in possession of the land. After possession had been delivered, Karim Bux sold his interest in the towzi to defendant 3, the present appellant. The plaintiffs have now brought this suit for partition of the decretal lands. They say that in addition to their 3-annas 4-gandas share in the whole towzi which extends over the decretal land they have acquired a further share of 11-annas 4-gandas in the decretal land making their total interest in that portion, 14-annas 8-gandas, and that defendant 3 as the successor-in-interest of Karim Bux owns the remaining 1-anna 12 gandas. The appellant set up a two-fold defence: one is, that the suit was one for partial partition and therefore could not be maintained, and the second, that after the suit in 1903 and before his purchase, there was an amicable division among all the cosharers, by virtue of which Karim Bux became entitled to the separate possession of certain specific plots of land, one of which was the plot obtained by the suit of 1903 and that the appellant was similarly entitled to hold separate possession of the land now in suit.

2. The first Court gave a decree for partition.

3. Defendant 3 preferred an appeal, but that was dismissed. He then preferred a second appeal and the case was remanded to the Subordinate Judge for reconsideration. The learned Judges referred to the first line of defence set up by the appellant and then turned to the second line and remarked, that if the allegation of an amicable partition were true, it might furnish a complete answer to the claim for partition and they said that the plaintiffs must establish that in respect of the land in suit they and defendant 3 were not only joint owners but were also entitled to joint possession. When the case went again to the lower appellate Court, the learned Judge said that

“in order to determine whether the plaintiffs were entitled to joint possession it must be found whether the vendor of defendant S. (that is the appellant), was entitled to exclusive possession or to joint possession. The point for determination, therefore is, was defendant 4, the vendor of defendant 3, by mutual arrangement with his cosharers, placed in exclusive occupation of the land in suit as representing his share, of the estate.”

4. After examining the evidence on this point, he came to the conclusion that there was nothing to show that the land in suit was ever in the exclusive possession of defendant 4 or that the other cosharers had any specific land in their exclusive possession, and he implied that, in consequence, the plaintiffs were entitled to joint possession. The argument now put forward on behalf of the appellant is, that the case is one in which partial partition should not be allowed. It is conceded that there is no hard and fast rule prohibiting a partial partition under any circumstances; but it is said that the present case is one in which a, partial partition should not in equity be allowed. It appears to me however that this argument has no substance in it. The learned Subordinate Judge finds with regard to this land now in suit that after the decree was obtained in the suit in 1903 all the cosharers except Karim Bux sold their interests in the lands obtained in that suit to the predecessor of the plaintiffs because he had borne the expenses of the suit and they were unable to repay him their shares. It appears therefore that the cosharers treated this decretal land as a separate entity in certain respects from the remainder of the estate, and in these circumstances, I do not think there is anything inequitable in allowing this separate portion of land to be partitioned. In my judgment the appeal should be dismissed with costs.

Buckland, J.:— I agree.

V.B/R.K

5. Appeal dismissed.