1. This is a petition to set aside the order passed by the learned District Munsif of Ramanathapuram in I.A. No. 55 of 1956 in O.S. No. 20 of 1954 on his file.
2. The suit was for a declaration that the plaintiffs were entitled to a half of the properties described in the plaint schedule and for partition and separate possession of that half share. When the suit was instituted, there were eleven defendants. They contested the plaintiffs' claim and said that they had no title to any portion of the plaint properties, that they had not been in possession of any part of the plaint properties within twelve years before suit and that they (the defendants) had been in possession adversely to the plaintiffs, of the entire plaint properties, for over the statutory period. On these pleas, issues were framed on 8th April, 1954. Subsequently, on the plaintiff's application, defendants 12 to 24 were added. They filed a written statement in which they also pleaded that the plaintiffs were not entitled to any portion of the plaint properties and that the plaintiffs had not been in possession of the plaint properties within twelve years before suit. They prayed in their written statement just as the defendants I and 2 had prayed in their written-statements, that the plaintiff's suit be dismissed. On that written statement being filed by defendants 12 to 24, the learned District Munsif framed the following issue on 7th November, 1955: ' To what shares are the parties entitled?' Defendants 1 and 2 filed I.A. No. 55 of 1956 praying that that additional issue be deleted. The learned District Munsif held that the suit was for partition and that therefore the issue, ' To what shares are the parties entitled '. was necessary. He dismissed the application of defendants 1 and 2. Against that order, the defendants 1 and 2 have preferred this Civil Revision Petition.
3. It is undoubtedly true, that, in a suit for partition properly so called, the shares of the several parties should be ascertained, a preliminary decree declaring their shares should be passed and a final decree effecting a division should be made. The learned advocate for the respondents cites Moor Mohammad v. Zainul Abdin : AIR1940All399 , and the following passage is particularly relied on:
It is necessary for me to draw attention once again to the fact that this is a partition suit. There is no mystery about a partition suit. It is simply a suit in which persons who are jointly entitled to an undivided property set in motion the processes of the Court to obtain a division of it in severality among themselves.
4. This suit does not properly fall within the definition of the expression ' partition suit '. This is not a suit by a person whose title to a share in some, at any rate, of the plaint properties is admitted and whose share in such properties has to be separated in order that such separate share might be put in his possession. This is a suit in which the plaintiffs pray for a declaration of title to a half share as against the defendants, who, as between themselves, have disputes of their own regarding their particular interests in the properties. Both sets of defendants, viz-, defendants 1 to 11 and defendants 12 to 24, are alike interested in seeing that the plaintiffs' suit is dismissed. Each set of defendants prayed that the suit be dismissed. The learned advocate for the respondents says, however, that he is not able to conceive of a partition suit in which the shares of the several parties would not have to be ascertained. Let us take a case where A and B are the real owners of a certain piece of property. There is dispute between them as to the shares they are respectively entitled to in the property, A claiming a three-fourth share whereas B says that A has only an one-fourth share. But they are content to be in common enjoyment and are not particularly keen about the dispute being settled by litigation or about the division of the properties being immediately effected. At that stage, C who fancies he has a claim to make to ownership of a half of the property, institutes a suit for a declaration of his title to a half share and for partition and separate possession of such share. It is impossible to see, on what principle of law or equity, in a suit so instituted by C, A and B should be compelled to have their disputes adjudicated and to have their shares determined and separated inter se. That is not the kind of partition suit about which, in the words of Braund, J., there is no mystery. That, on the other hand, is the kind of suit in which the contest ought properly to be limited to a determination of the rights of C as against A and B. A and B would, in due course, after getting C non-suited, have their disputes settled out of Court, and, if that is not possible, have a suit instituted as between themselves for the determination of their rights and a division of the properties in accordance which such rights. In this case, where both sets of defendants wound up their written statements with the prayer that the plaintiff's suit should be dismissed and did not ask for a determination of their own shares, the District Munsif acted with material irregularity in the exercise of his jurisdiction in framing an issue necessitating the determination of the disputes which appear to exist inter se as between the defendants.
5. I find that the District Munsif erred in refusing to delete the additional issue framed on 7th November, 1955. The order is set aside. That issue is deleted. The suit will be tried on the following issues:
1. Are the plaintiffs entitled to a half share in the suit properties ?
2. Have the plaintiffs acquired title by prescription ?
3. Were the plaintiffs in possession of the suit properties within twelve years before suit ?
4. Is the plaintiff's suit barred by limitation ?
5. Are the defendants estopped from denying the title of the plaintiffs ?
6. To what reliefs are the plaintiffs entitled ?
6. The parties will bear their own costs in this Civil Revision Petition.