Musammat Bibi Wasila @ Batashan and Another vs Syed Shah Sharafat Hussain and Another

The plaintiffs in the suit out of which this second appeal arises, instituted a suit for a declaration that a certain room belonged to the plaintiff and the defendant 1st party; that a certain other room belonged to the defendant No. 1 exclusively, and that a certain house belonged exclusively to the defendant No. 2 and that the courtyard, the latrine, the door for ingress and egress and the back door khirki were held ijara by the plaintiffs and the defendants 1st and 2nd party. The plaintiffs prayed for certain other declarations, partition and possession.

The defendants raised various objections with respect to the title and possession of the plaintiffs. The Trial Court decided most of the issues in favour of the plaintiffs but held that the plaintiffs could not claim partition of the houses in dispute as they had not brought into the hotchpot another house and, therefore, dismissed the claim for partition.

An appeal having been preferred, the learned Judge, however, came to the conclusion that the claim for partition was one which could be granted, I agree with the learned Judge that there was no reason why the house could not be partitioned simply because another house had not bean brought into the hotchpot. In my opinion, the order of the learned Judge on this point was proper. But the learned Vakil appearing on behalf of the appellants has contended that the learned lower Appellate Court omitted to make a declaration with effect to the courtyard, privy, the darwaja the khirki, and staircase. It appears that this was, as I have pointed out above especially asked for by the plaintiffs in relief No. 1 to the plaint and, therefore, it was necessary for the lower Appellate Court to decide whether the plaintiffs are entitled to that declaration or not. There being no finding by the lower Appellate Court in its judgment with respect to the courtyard etc., it is necessary to remit the case to the lower Appellate Court for a finding whether the plaintiffs are entitled to the declaration which they have sought in relief No. 1 to the plaint; and I accordingly send the case back for that finding. The record of the case will be sent down as soon as possible and the learned Judge will please some to a finding on this point and return the record to this Court within a month after the receipt of it by him. Each party will bear his own costs of the hearing of this appeal up to date.