Coxe and Teunon, JJ.
1. This is a suit for partition of the lands described in the two schedules attached to the plaint. It is admitted that the plaintiff is co-owner with the defendants of the lands described in schedule 2; but his title to, and possession of, any interest in the lands described in the first schedule to the plaint is denied.
2. The suit was decreed by the Subordinate Judge, and a preliminary decree for partition was passed.
3. The defendants appealed to the District Judge. The District Judge came to no clear finding on the principal question in the suit, namely, whether the plaintiff was entitled to partition of the lands described in the first schedule. He regarded the suit as one to obtain a declaration of the plaintiff's title and possession, under the garb of a suit for partition; and he considered that the court-fee payable should be calculated ad valorem on the property in suit and the case retried as a suit for declaration of title and recovery of possession. This view appears to have been accepted or, at any rate, acquiesced in, by the plaintiff's pleader; and he agreed to amend his plaint, so as to make it one for a declaration of the plaintiff's title as well as for partition and to pay the necessary Court-fee. The learned District Judge thereupon directed that the case should go back to-the Subordinate Judge, apparently for retrial.
4. Against this order the plaintiff appeals, and it is argued on his behalf that this order of the District Judge remanding the case, is not justified by law.
5. It appears to us that this contention ought to prevail. No doubt it was incumbent on the learned District Judge, before he could affirm the preliminary decree for partition passed by the Subordinate Judge, to come to a clear and definite finding that the plaintiff had title to the property which is the subject of this appeal, that is to say, the property described in the first schedule to the plaint. Unless the plaintiff can make out His title to the property, he clearly has no right to partition of it. But, as regards the question of possession, it appears to us that, if the plaintiff has title to the property and is a co-owner of that property with the defendants, the doubts felt by the learned District Judge with regard to his possession did not justify him in refusing the relief sought. The learned District Judge does not explain how this case is distinguishable from that of Bidhala Rai v. Ram Chariter Rai (1907) 12 C.W.N. 37, which was cited and relied upon by the Subordinate Judge. So far as the facts have been laid before us that decision appears to be applicable. It has been argued that as the property described in the first schedule is totally different from the property described in the second schedule, that ruling is inapplicable. To this contention we are not prepared to accede. If the plaintiff and' the defendants are, as a matter pf fact, co-owners of the land described in both schedules, and the plaintiff's possession is admitted in the lands described in the second schedule, which appear to constitute the more valuable portion of the property, the fact that the lands in the first schedule are situate in a different village, and are entirely different properties from those contained in the second schedule, does not in our opinion, take the case outside the scope, of the decision which we have quoted. We think, therefore, that the proper course for the District Judge to have adopted on this occasion was to have come to a distinct finding as to whether the plaintiff had succeeded in proving his title to the lands comprised in the first schedule attached to the plaint. He was not entitled to remand this point for retrial to the Subordinate Judge. If he found it against the plaintiff, there was an end to the case, so far as that property was concerned. But if he found it in favour of the plaintiff, then his finding in respect of possession did not debar him from affirming the preliminary decree for partition, and did not justify him in remanding the case to the Subordinate Judge for retrial.
6. It has, however, been argued on behalf of the respondent that the plaintiff is now precluded by his own conduct from contesting the propriety of the District Judge's decision. It appears that he acquiesced in that decision and amended his plaint; that the defendant subsequently filed a written statement and that fresh issues were framed. But no authority has been shown us for holding that the plaintiff is precluded by this conduct from filing an appeal within the time allowed by limitation, if, on reflection, he thinks that the action he has taken is injudicious.
7. Accordingly the case must go back to the learned District Judge, in order that the appeal may be reheard on the pleadings as they stood before the amendment. He must come to a decision as to whether the plaintiff had a subsisting title at the time of the institution of the suit; and if he finds that in favour of the plaintiff, he must then come to a decision as to whether the Subordinate Judge's preliminary decree for partition, so far as regards the property described in the first schedule to the plaint, should or should not be affirmed.
8. As regards the property described in the second schedule to the plaint, it is admitted by both sides that that ought to be partitioned.
9. The costs will abide the result.