1. In this case, the plaintiff brought his suit alleging that he and defendant 1 were brothers. As regards the property of Schedule 1, it was alleged that that was their ancestral property and that the two brothers were in possession thereof in equal shares. That property was said to be of the market value of some Rs. 16,000. As regards Schedule 2 property, the plaintiff's case was that it was acquired by the joint family fund when defendant 1, was the karta. This appears to be a residential house in the suburbs of Calcutta and its value is put down as Rs. 84,000. The plaintiff's case is that he had been actually living in that house when the events which I am about to mention happened. He says that defendant 1 mortgaged the whole of Schedule 2 property ---I omit all reference to the property of Schedule 1--'to defendants 2 to 4 on the footing that defendant 1 was the sole owner of the house and he also executed a subsequent encumbrance in favour of defendant 5.
2. The first mortgagees brought a suit to which defendant 5 was made a party and got a mortgage decree for sale and, in the mortgage sale, the property was purchased by defendant 6 brother of defendant 5. Now, when the plaintiff brought his suit, ho alleged that these mortgages by defendant 1 were all fraudulent--apparently fraudulent--on the part of the mortgagor and the mortgagees, and he said that the suit and the execution sale and everything else he could think of were fraudulent. Ho further alleged that the sale in execution had thrown a cloud upon his title and that he was threatened with being evicted from possession of the house by process under the mortgage sale; and, as is usually the case in the mofussil, he asked for various forms of relief, particularly, declaration of title and permanent injunction restraining the mortgagee defendants from taking possession of the plaintiff's share. That suit has been dealt with by the trial Court. As regards Schedule 1 property, the trial Court has declared the plaintiffs title to an eight annas share and has decreed that the plaintiff is to get possession of it after partition. So far as that part of the decree is concerned, the plaintiff makes no complaint at all.
3. As regards Schedule 2 property, the plaintiff's claim has been simply dismissed and the plaintiff brings this appeal. The appeal is clearly concerned only with Schedule 2 property. The grounds mentioned in the body of the memorandum of appeal are all grounds concerning the question whether this Schedule 2 property was really joint property in which the plaintiff had an interest or was the sole property of defendant I. But, under the cause title, the plaintiff put the following:
Appeal valued at Rs. 100,000 for declaration of tile and partition and at Rs. 100 for injunction.
4. Accordingly, the Stamp Reporter and the learned Registrar have been occasioned a great deal of difficulty in finding out the proper court-fee payable on this appeal. Before me the learned advocate for the appellant very clearly says that it would be quite sufficient for his purpose to get a decree for partition in respect of Schedule 2 property. It matters nothing to him, he says, whether defendant 1 has or has not validly parted with his own half-share. Defendant 1 and also defendant 6 are parties to this suit. Declaration of title is a pure empty thing in the circumstances and a claim for injunction is a pure empty claim and the learned advocate comes in with the suggestion that, if this appeal is limited to a complaint against the decree of the Court below only in so far as it refuses to the plaintiff partition of Schedule 2 property, it seems perfectly clear that the court-fee already paid is sufficient. I have therefore to see whether there is any objection to the appellant having leave to amend his memorandum of appeal and taking the course which he proposes.
5. Now, if this were a case in which the plaintiff was according to his own showing out of possession, I do not suppose that it would be right to allow him to appeal merely upon the question of partition. A person is not entitled to partition unless and until he is in possession) of his share. But, if he is out of possession of his share, the Court does not require him to bring two suits. He can bring a suit in which he may claim to recover possession of his share and he may also claim to have that share partitioned by the same decree. If it appears that he is out of possession according to his! own showing, then he has to bring a suit to get possession of his share; and it is perfectly true that, in that case, he would have to pay court-fee on the market value of that share. It is not a question of declaration or declaration with consequential relief. He would have to pay court-fee as in a suit for possession. That I take to be the meaning of what was said by Garth, C. J., in the case of Kirty Churn Mitter v. Annath Nath Deb  8 Cal.757 and also by Chakravarti, J., in Rajani Kanta Bag v. Rajabala Dasi : AIR1925Cal320 .
6. In the latter case, the principle applicable seems to be laid down with great clearness. The present case, in my judgment, is a case where the plaintiff is now claiming partition of a residential house on the footing that he is actually sitting there and living there and has been doing so for some time. That being so, it is entirely unnecessary to make him pay court-fee upon a claim to recover possession. In my judgment, it is a clean case of partition and is not converted into a case of claim to possession because the defendant brother or the defendant mortgagees went to set up that the house is not joint property and that the plaintiff has no title to it. It is quite true that these considerations would not be applicable to a plaint drawn as this plaint was drawn because whatever reliefs the plaintiff required to ask for he did ask for various reliefs declaration, injunction and so forth. But when the case is disposed of and he comes before the Court again as an (appellant, he is not obliged to appeal against any part of the decree that he does not want to appeal against and, in my judgment, he is quite entitled to say in this appeal:
I made all sorts of unnecessary claims (they may be wrong claims) in the Court below; but one claim of mine was right, namely; that 1 was entitled to partition and I shall confine my appeal to that.
7. The learned advocate for the appellant taking that view and being willing to confine his appeal purely to the question whether or not he is entitled to partition, I am of opinion that he ought to be allowed to do so; and, on the memorandum of appeal being amended in the sense which I have referred to, it is quite clear that the court-fee already paid is sufficient. That is the order which I propose to make upon this matter.