Kulwant Sahay, J.This is an appeal against a final decree in a partition suit. The plaintiffs brought the -suit for partition of certain lands which were left common in the previous Collectorate partition and in the plaint the Survey numbers, katha numbers and khasra numbers of the land sought to be partitioned are set out. There was a preliminary decree by consent as against the defendants Nos. 16 to 20 and ex parte as against the other defendants, and by that decree the learned Subordinate Judge ordered a Commissioner to be appointed to effect the partition as amongst the parties under the terms of the judgment of the nth August 1919. It appears that, in conformity with the preliminary decree, a Commissioner was appointed and he effected the partition and submitted his report upon which objections were taken by the plaintiffs as well as by the defendants. The learned Subordinate Judge has now dismissed the suit entirely on the ground that the lands which were claimed to be joint lands in the plaint are not the lands which have been partitioned by the Commissioner. In this the Subordinate Judge appears to be completely wrong. A preliminary decree for partition having been passed it was not open to the learned Subordinate Judge at a later stage to dismiss the suit altogether. It was, no doubt, open to him to come to a decision as to what were the lands which were ordered to be partitioned by the preliminary decree and to effect a partition of those lands but it was not open to him to dismiss the suit altogether on the ground that the lands which were partitioned, by the Commissioner were different from the lands ordered to be partitioned under the preliminary decree. The case must go back to the learned Subordinate Judge in order that he may cause the lands which were ordered to be partitioned under the preliminary decree to be partitioned by the Commissioner.

2. A preliminary objection has been taken to the hearing of this appeal by the learned Counsel for the respondent on the ground that the value of the plaintiffs share of the properties sought to be partitioned is below Rs. 5,000 and, therefore, the appeal ought to have been filed before the District Judge; and he relies upon a decision in the case of Dukhi Singh v. Harihar Shah 58 Ind. Cas. 236 : 1 P.L.T. 595 : 5 P.L.J. 540 : (1921) Pat. 89. The facts of that case are clearly distinguishable from the present case. In that case there had been a previous compromise decree for partition during the minority of the plaintiff who challenged the validity thereof and brought the suit for an adjudication that the compromise partition decree was not binding upon him and that he was in joint possession with the defendants of the ancestral properties and for a declaration of his one-eighth share in the entire properties and of his right to effect a partition thereof. It was held that the suit was one for declaration and with consequential reliefs and was governed by Section 7, Clause (iv)(o) of the Court-Fees Act and not by Article 17, Clause (vi) of Schedule II of the Act. Their lordships held that, having regard to the nature of the suit and the reliefs asked for, the value of the suit for the purposes of jurisdiction was the value of the plaintiffs share in the properties and not the value of the entire joint family property. No doubt, in considering the question as to whether the appeal in that case lay to the High Court or to the District Court, their Lordships considered the broad question as to the value of suits in partition cases, but to my mind there is a distinction between suits for partition pure, and simple where the plaintiff is in joint possession of his share and there is no dispute as to his title or share, and suits where the plaintiff seeks for an adjudication of his title or extent of share and for partition after such adjudication. In the latter case, it is the value of the plaintiffs share which will determine the jurisdiction of the Court and not the value of the entire property. In the present case there is no question as regards the title of the plaintiffs, the only question before the Court was as regards partition; therfore, the value of the whole of the properties sought to be partitioned must be the value for the purposes of jurisdiction. This view is supported by the fact that in a suit for partition, the Court does, often on the application of the defendants, effect a partition of the shares of the different defendants also amongst themselves, and, therefore, in such a case the value, for the purposes of jurisdiction, cannot be the value of the plaintiffs share because the Court deals with the entire estate and effects partition not only of the plaintiffs share but of the defendants share also. Moreover, a decree in a partition suit is engrossed on a stamp paper required by Article 45 of the Indian Stamp Act, the stamp-duty being payable not only on the value of the plaintiffs share but on the value of all the shares separated, and this clearly shows that the value of the plaintiffs share alone cannot determine the jurisdiction of the Court. The Calcutta High Court has uniformly adopted this view and I feel inclined to follow the same. In my view the preliminary objection fails and the appeal was properly presented to this Court.

3. The result is that the decree of the learned Subordinate Judge is set aside and the case is sent back to him for disposal.

4. The appellants are entitled to their costs from the respondent No. 2 alone; hearing fee two gold mohurs.

Das, J.

5. I agree.