1. This appeal arises out of a suit for partition and ispreferred by the third defendant. The plaintiffs are the owners of one fifthshare in a certain town and Karim Bux, the predecessor in interest of theappellant, owned one tenth share of the same touch. In 1903, the plaintiffs andKarim Bux and other of sharers joined in bringing: a suit to recover some landsfrom, defendants Nos. 1 and 2 and they obtained a decree and were put inpossession of the land. After possession had been delivered, Karim Bux sold hisinterest in the touzi to defendant No. 3, the present appellant. The plaintiffshave now brought this suit for partition of the decretal lands. They say thatin addition to their share in the whole towzi which extends over the decretalland they have acquired a farther share of 11 annas-4-srawias in the decretalland making their total interest in that portion, 4 grandas, and that thedefendant No. 3 as the successor in-interest of Karim Bux owns the remainingLanna-12-Grand.

2. The appellant set up a two-fold defence; one is, that thesuit was one for partial partition and, therefore, could not be maintained, andthe second, that after the suit in 1903 and before his purchase, there was anamicable division among all the combaters, by virtue of which Karim Bux becameentitled to the separate possession of certain special plots of land, one ofwhich was the plot obtained by the suit of 1903 and that the appellant wassimilarly entitled to hold separate possession of the land now in suit.

3. The first Court gave a decree for partition. DefendantNo. 3 preferred an appeal, but that was dismissed. He then preferred a secondappeal and the case was remanded to the Subordinate Judge for re-consideration.The learned Judges referred to the first line of defense set up by theappellant and then turned to the second line and remarked, that if the allegationof an ami sable partition were true, it might furnish a complete answer to theclaim for partition and they said that the plaintiffs must establish that inrespect of the land in suit they and the third defendant were not only jointowners but were also entitled to joint possession. When the case went again tothe lower Appellate Court, the learned Judge said that in order to determinewhether the plaintiffs were entitled to joint possession, it must be foundwhether the vendor of the third defendant (that is, the appellant), wasentitled to exclusive possession or to joint possession. The point fordetermination, therefore, is, was defendant No. 4, there vendor of defendantNo. 3 by mutual arrangement with his 80 sharers, placed in exclusive occupationof the land in suit as representing his share of the estate." Afterexamining the evidence on this point, he carne to the conclusion that there wasnothing to show that the land in suit was ever in the exclusive possession ofdefendant No. 4 or that the other of sharers had any specific land in theirexclusive possession, and he implied that, in consequence, the plaintiffs wereentitled to joint possession.

4. The argument now put forward on behalf of the appellantis, that the case is one in which a partial partition should not be allowed. Itis conceded that there is no hard and fast rule prohibiting a partial partitionunder any circumstances; but it is said that the present case is one in which apartial partition should not in equity be allowed.

5. It appears to me, however, that this argument has nosubstance in it. The learned Subordinate Judge finds with regard to this landnow in suit that after the decree was obtained in the suit in 1903 all the ofsharers except Karim Bux sold their interests in the lands obtained in thatsuit to the predecessor of the plaintiffs because he had borne the expenses ofthe suit and they were unable to repay him their shares. It appears, therefore,that the co-sharers treated this decretal land as a separate entity in certainrespects from the remainder of the estate, and, in these circumstances, I donot think there is any thing inequitable in allowing this separate portion ofland to be partitioned.

6. In my judgment the appeal should be dismissed with costs.

P.L. Buckland, J.

I agree.

.

Durga Charan Acharjeevs. Khandakar Enamol Huq and Ors.(24.06.1920 - CALHC)