Beverley, J.

1. I concur with my learned colleague in dismissing thisappeal. Having regard to the provisions of Sections 248, 249, and 250 of theCode of Civil Procedure, it seems to me clear that until notice is issued onthe legal representative of the judgment-debtor, the Court has no jurisdictionto issue its warrant for the execution of the decree.

2. The appeal is therefore dismissed with costs.

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Gunamoni Dasi vs.Gopal Chunder Chatterjee (26.07.1892 -CALHC)



IN THE HIGH COURT OF CALCUTTA

Decided On: 24.06.1892

Appellants: Mukunda Lal Pal Chowdhry and Ors.

Vs.

Respondent: I. Lehuraux and Ors.

Honble Judges/Coram:

John Freeman Norris and Beverley, JJ.

Subject: Property

Catch Words

Mentioned IN

Citing Reference:

Affirmed

1

Discussed

1

Distinguished

1

Mentioned

3

Case Note:

Partition - Bight to prtition--Jointpossession--Coparceners--Suit by subordinate tenure-holder for partitionagainst superior landlord.

JUDGMENT

John Freeman Norris and Beverley, JJ.

1. This is a suit for partition.

2. The plaintiffs are the proprietors of a 12-anna share ina certain tenure known as taluk Banga Chandra Das, and they allege that theyare in possession of the other 4 annas of the tenure as durtalukdars; but itdoes not appear upon the proceedings, so far as we are aware, to whom theplaintiffs pay rent on account of the 4-anna share of the taluk.

3. The taluk in question consists of a 71/2 annas or a 15/32part of the rents of so much of the lands of the three villages, Deora, Bagmaraand Talagao as appertain to the estate No. 23 on the tauzi of the Collectorateof Noakhali. It appears that estates Nos. 23, 24, 25 and 26 representfractional shares in three parganas comprising some 500 villages. No butwarahas been made of these parganas, but by some private arrangement, apparently,certain lands in a village have been assigned to one estate and certain otherlands to another, some lands being kept common to all the four estates. Thusthe estates do not consist of entire villages, but of specific lands in certainvillages and a joint interest in other lands kept ijmali.

4. It is not clearly set out in the plaint who are theproprietors of these four estates; but it is alleged that the defendant No, 1,either as zemindar or as putnidar or as dur-putnidar, is in possession ofestate No. 23; and the other zemindars of that estate have been added asparties to the suit.

5. The plaintiffs, therefore, on the ground that they are injoint possession of the lands in suit with the defendant No. 1, ask for apartition of those lands as against him.

6. There is yet another complication in this intricate andcurious system of tenures that must be noted. It appears that there is anotherpermanent tenure called taluk Sobharan in this estate No. 23, which talukconsists of lands not only in the three villages in suit but in nine others. A2-anna share of this taluk is in the khas possession of the defendant: of theother 14-anna share, a 7i-anna share is held under the plaintiffs.

7. The lower Court has dismissed the plaintiffs suit onseveral grounds. In the first place the Subordinate Judge has held that theplaintiffs cannot sue for partition of the lands appropriated to estate No. 23without at the same time asking for partition of those lands that are heldcommon to all the four estates. In the next place he has held that assubordinate talukdars the plaintiffs cannot enforce a partition as againsttheir landlord. The Subordinate Judge notices other forcible objections to thesuit, and adds that, even if the plaintiffs were entitled to a partition, it isdifficult to conceive how such partition could be carried into effect.

8. In appeal it has been contended before us by Dr. RashBehari Ghose that the decision relied on by the Subordinate Judge [HaridasSanyal v. Pran Nath Sanyal I.L.R. 12 Cal. 566 [LQ/CalHC/1886/1] is not applicable to the facts ofthe present case, and that there is no rule which would compel a plaintiff,when suing for a partition of lands in which he and the defendant are jointlyinterested, to ask for the partition of other lands in which third parties arealso interested. In the case of Padmamani Dasi v. Jagadamba Dasi 6 B.L.R. 134it was held that the subject-matter of a partition must be a matter ofconvenience. On this point we are inclined to agree with the learned pleaderfor the appellants that if the plaintiffs are entitled to a decree forpartition, such a decree might be made as regards the lands specified asbelonging to estate No, 23 without reference to the lands that are held in commonas belonging to all the four estates.

9. As regards the question whether the plaintiffs aspermanent talukdars are entitled to a partition as against their landlord, Dr.Rash Behari Ghose has cited as authorities upon the point the English cases ofHobson v. Sherwood 4 Beav. 184, Heaton v. Dearden 16 Beav. 147, and Baring v.Nash 1 V. and B. 551. We are of opinion, however, that this is not a matter inwhich English cases decided under a wholly different system of law can affordus very much assistance. The authorities relied on by the Subordinate Judgeappear to be in point, and the facts in the case of Parbati Churn Deb v.Ain-ud-deen I.L.R. Cal. 577 : 9 C.L.R. 170 appear to be very similar to thosein the case before us.

10. The plaintiffs base their claim to partition upon theirjoint possession with the defendant No. 1 of the subject-matter of the suit. Wetake it, however, that joint possession alone is not a sufficient basis forsuch a claim. In order that persons may be coparceners, and so have a right topartition, it seems to us that not only must they be in joint possession of theproperty, but that that joint possession must be founded on the same title. Weare not aware of any Indian case in which a person holding a subordinateinterest in land has been held to have a right of partition as against thesuperior holder. In the present case the plaintiffs pay their rent to defendantNo. 1, who is the putnidar of the 71/2 anna share in which is the taluk BangaChandra Das; he is also the zemindar of a 1-anna share, and the putnidar ordur-putnidar of the other 71/2 annas. The nature of his possession is differentfrom that of the plaintiffs; his possession is that of a subordinatetenure-holder. Such an interest does not carry with it in our opinion the rightas against the superior landlord of compelling him to partition the lands inthese three villages, so as to assign to the taluk Banga Chandra Das anexclusive interest in certain specific lands instead of a joint undividedinterest in all the lands in these villages which appertain to estate No. 23.Such a partition could only be carried out by means of a partition between thethree shares of the zamindari, viz., 71/2 annas, 71/2 annas, and 1 anna; and itcould not properly be carried out in respect of these three villages only,without taking into consideration the other villages comprised in thezamindari. Moreover, it is possible--and indeed it is in evidence--that thereare other taluks in these villages that would be affected by such a partition,the holders of which have not been made parties to the suit.

11. For all these reasons we are of opinion that the decreeof the lower Court is correct and that the plaintiffs suit must fail.

12. The appeal is dismissed with costs.

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Mukunda Lal Pal Chowdhry and Ors. vs. I. Lehuraux and Ors.(24.06.1892 - CALHC)