1. In this case the plaintiff obtained a decree declaring that he and the 9th defendant were each entitled to a moiety of the plaint B and E schedule properties. In this petition we are only concerned with the B schedule properties. It would appear that after that decree was passed, the plaintiff and the 9th defendant were put in possession of the B schedule properties, for a statement of the Vakil for defendants was put into Court stating 'that the plaintiff and the 9th defendant are in possession of the properties mentioned in the B schedule for the last two years, the defendants Nos. 5 and 12 have no objection to their continuing in possession and that the defendants have no objection to their taking possession through Court.' On that memo the plaintiff and the 9th defendant put in a memo, on the 19th September 1922 asking that the properties should be delivered by Court, but they asked that such of the survey numbers in the B schedule as belonged to their share exclusively should be delivered to them but as regards the survey numbers in which they had only a share they asked that B and C schedule properties should be put together and partition effected according to good and bad qualities. There was no decree for such a partition. The plaintiff in his plaint had not even hinted that the B schedule properties were not ascertainable and in the written statement it was alleged that the partition had taken place years before and that the properties had been allotted to the various sharers. In Ex. A also the plaintiff's father purported to give possession of the B schedule properties. It is, I think, abundantly clear from these pleadings that there was a partition by metes and bounds and the plaintiff's application to effect a further partition of some of the B and C schedules properties is not at all warranted. Apart from that the Court had no jurisdiction to effect such a partition. The order of the petition runs:
With the consent of the Vakil for defendants Nos. 1, 5, 7 and 12, I order Chat properties in B Schedule 1, la 16 as given in their petition be delivered to the plaintiff and 9th defendant and that a Commissioner be appointed to divide the properties in B Schedule II as suggested in their petition.
2. By ' their' I assume that the Subordinate Judge means plaintiff and 9th defendant who in their memo had divided B schedule properties into B Schedule 1,1a, 1b and II. This consent appears to be based on an affidavit filed by the 5th defendant and docketed as being on behalf of defendants Nos. 1, 5, 7 and 12. In the affidavit the 5th defendant alleged the prior partition and stated at the end of the affidavit:--
The plaintiff and 9th defendant desire to have a division. We have no objection to do so.
3. Presumably the Vakil who appeared raised no objection to the Commissioner appointed. It is on this statement of consent that the jurisdiction must be founded; otherwise the Court had no power to effect a partition which had not been ordered by the decree and for which there was no properly framed application before the Court. No consent of parties could give the Court jurisdiction in a matter like this, for the question was not pending before the Court and had never been put in issue in any proceedings. I may also observe that when the Commissioner had sent in a report, objections were ordered to be filed before the 5th January. On the 5th January, the Court was closed on account of plague. It does not appear when it was re-opened but an affidavit was filed on the day when the petition was next taken up and rejected as being out of time. It is not quite clear whether it was filed on the day the Court re-opened or not, and consequently I cannot, say that this order is incorrect, but it seems strange that this objection to a division by the 7th defendant, the present petitioner who had never consented to it specifically should have been rejected on this ground. I must set aside the Subordinate Judge's order of the 3rd March for delivery according to the partition made by the Commissioner. Respondents will pay the petitioner's costs in this petition.