1. The plaintiff, here appellant, has sued for ascertainment; by division of his share of the property, which he and defendant are at present holding in common and for ejectment of defendant from that sharp, on the basis that defendant is in possession of it as a non-occupancy tenant. The lower Appellate Court returned the plaint for presentation to a Revenue Court.
2. This disposal would, no doubt, be appropriate, if the prayer for ejectment could be regarded separately and if that remedy were authorised by the Madras Estates Land Act in the circumstances. But the Act provides for the grant of relief only in respect of holdings; and the definition of holding in Section 3 (3) by reference to parcels entails, in our opinion, that only ascertained holdings are contemplated. This is consistent with Chapter X and is supported by the interpretation plated on the similar provision of the law in Bengal in Parbatty Debya v. Math w a Nath Banerjee 15 Ind. Cas. 453C. 29., Until the plaintiff has had the holding, in reaped of whith he asks for ejectment, ascertained it will be meaningless for him to approach a Revenue Court; and this is the real substance of the complaint he makes against the lower Court's direction to him to do so, that a Revenue Court cannot grant partition.
3. We may at this point observe that the, opinion of the Fall Bench in Gadadhara Das Banaji v. Suryanarayana Patnaik 64 Ind. Cas. 317., would appear on the pleadings to he fatal to plaintiff's prayer for ejectment. That however, is no reason why he should be refused the other relief to whith he appears to be entitled.
4. The course we take is accordingly to set aside the decision of the lower Courts, to allow the plaintiff to amend his plaint by withdrawing the prayer for possession and to remand the suit to the District Munsif's Court for re-admission and disposal as a suit for ascertainment of plaintiff's share in the property, which, he alleges, is held by himself and defendant as tenants-in-common. Plaintiff must, of course pay the deficient stamp duty on the prayer for partition within a reasonable time to ba fixed by the District Munsif, since he has not paid duty on that amount already.
5. Each party will bear his own costs in this and the lower Appellate Court to date, Costs before the District Munsif will he costs in the cause.