1. This is an appeal by the third defendant in a suit for partition of joint property, situated in the district of Sylhet and subject to the operation of the Assam Land and Revenue Regulation, 1886. In the trial Court, an objection was taken that the suit could not be entertained by the Civil Court and an issue was framed accordingly; but no argument was addressed on the question of jurisdiction. The suit was tried on the merits and a preliminary decree was made in favour of the plaintiff. On the present appeal the objection has been urged that the Civil Court has no jurisdiction to entertain the suit under Section 154 of the Assam Land and Revenue Regulation. There is no room for controversy that the point though abandoned in the trial Court, can be raised here; Meenakshi Naidu v. Subramanya Sastri  11 Mad. 26 and Mahaprasad Singh v. Ramanimohan Singh A.I.R. 1914 P.C. 140. In the case last mentioned, the Judicial Committee observed as follows : 'Seeing that it is a question of jurisdiction which depended on no disputed facts, their Lordships are of opinion that they could not decline to entertain it, though not specifically raised on the appeal, more especially as it necessarily presented itself in argument.'
2. Section 154 of the Assam Land and Revenue Regulation provides that except when otherwise expressly provided in the Regulation or in rules issued under the Regulation, no Civil Court shall exercise jurisdiction in any of the matters mentioned. The subjects thus specified include the claims of persons to perfect partition and the claims of persons to imperfect partition except in cases in which a perfect partition could not be claimed from, and has been refused by the revenue authorities on the ground that the result of such partition would be to form a separate estate liable for an annual amount of revenue less than five rupees. The terms 'perfect partition' and 'imperfect partition' are defined in Section 96 in these terms.
Partition is either perfect or imperfect. Perfect partition means the division of a revenue-paying estate into two or more such estates, each separately liable for the revenue assessed thereon. Imperfect partition means the division of a revenue-paying estate into two or more portions jointly liable for the revenue assessed on the entire estate. The term 'estate' is defined in Clause (6) of Section 3. It is not contended that the present suit is a suit for perfect partition. The plaintiff does not seek to effect a division of a revenue-paying estate into two or more such estates, each separately liable for the revenue assessed thereon. The contesting defendants urge, however, that the suit is in essence one for imperfect partition; in other words, that the plaintiff really seeks a division of a revenue-paying estate into two or more portions jointly liable for the revenue assessed on the entire estate.
3. The true scope of Section 154 has been the subject of judicial decisions by no means easy to reconcile. But before we consider them, we may describe the scope of the suit. The property in dispute admittedly belonged to one Khusal Raj; he left two sons, each of whom obtained one-half share of the taluk. The plaintiff claims to have acquired an interest to the extent of two annas and ten gandas of the disputed property at a sale in execution of a decree on a mortgage granted by the descendants of the second son of the original owner. The plaintiff alleges that by virtue of his purchase at the mortgage sale, he acquired an interest in a tract of land which is described in Schedules (1) and (2) attached to the plaint. Schedule (1) sets out the boundaries of an area of 580 acres 3 rods and 16 poles. Schedule (2) sets out the boundaries of an area of 15 hals, which, we are informed, corresponds approximately to 45 acres. The plaintiff asserts that he acquired title, not to all the lands in Schedule (1) but only to such of the lands comprised therein as are not included in Schedule (2); in other words the lands in Schedule (2) have to be excluded from the lands in Schedule (1) in order that we may ascertain the precise area claimed by the plaintiff by virtue of his purchase. There is a third schedule annexed to the plaint, which describes an area of 1 hal or 3 acres within certain boundaries. This area, however, is not situated in the same village as the lands of Schedule (1). The lands of Schedule (1) and consequently the lands of Schedule (2) are situated in village Hizla, whereas the land of Schedule (3) is situated in village Badahura. The plaint narrates the history of the disputed lands and makes out that the specific lands covered by the mortgage represent a demarcated plot, corresponding to a specific share in the taluk. The case for the plaintiff consequently is that the specific area which he invites the Court to divide as between himself and the contesting defendants represents a share of the taluk. What is asserted is, not that there was a previous partition of the taluk but that the persons interested in all the lands of the taluk have by mutual arrangement, held possession of specific lands' as corresponding, more or less approximately, to the shares held by them in the entire property. The question arises, whether Section 154 of the Assam Land and Revenue Regulation bars the partition of lands, in these circumstances, by a Civil Court, merely because the lands are comprised in a revenue-paying estate. The defendants have invited us to hold, on the authorities which will be presently mentioned, that the question should be answered in the affirmative and that the only remedy of the plaintiff is by a proceeding before the revenue authorities for partition of the disputed tract.
4. In Abdul Khaliq Ahmad v. Abdul Khaliq  23 Cal. 514, the land to be partitioned was comprised in four estates. Before the partition could be effected, it would obviously be necessary to ascertain the land. This involved an enquiry as to what specific land out of each estate was comprised in the disputed area. In these circumstances, it was pointed out that the process involved, in essence, a partition not or one estate but of each of four estates. The plaintiff could not escape from the bar of Section 154, because he sought in effect a partition of lands comprised, not in one estate, but in four estates; each of these would, in reality, be subjected to partition in the suit.
5. In Sarat Chandra v. Prokaschandra Das  24 Cal. 751, it was ruled that an estate does not cease to be an entire estate within the meaning of the Assam Land and Revenue Regulation, because a few plots of land are common to it and some other estate, or because they are held jointly with other persons. It was pointed out, however, that cases were conceivable where there might be imperfect partition of a definite tract where such partition did not involve a partition of the estate itself.
6. In Gouri Krishna v. Sarbananda Sarma  32 Cal. 1036, there was a difference of opinion between Mr. Justice Rampini and Mr. Justice Brett resulting in a reference to Mr. Justice Ghose. Mr. Justice Ghose pointed out that whether Section 154 does or does not operate as an effective bar must depend upon the circumstances of each litigation, and that the test to be applied is, whether what was sought by the plaintiff did not in essence involve a partition of the estate. There are two other cases where the point has been recently considered, namely, Brojendrakishore Ray v. Kalikumar  46 Cal. 236 and Yasin Ali Mirdha v. Radhagobind Chowdhury  47 Cal. 354, but neither of them helps the contention of the appellant. The question which really requires decision in the present case is, whether it is open to the plaintiff to seek a partition of the disputed tract which is obtained by a deduction of the land comprised in Schedule (2) from the lands comprised in Schedule (1) without a partition of the entire estate, within the meaning of the Assam Land and Revenue Regulation. We are of opinion that the answer must be in the affirmative.
7. It is well-settled that a partition may be effected on the basis of possessory title, as appears from the decision of the Judicial Committee in the case of Sunder v. Parbati  12 All. 51. In that case, possession of the estate left by their deceased husband, was taken by the two widows of a childless Hindu, who had before his death adopted a son to whom by a will he bequeathed his estate. The adopted son died shortly after the testator. It was ruled that the widows had a possessory title or interest in the estate, notwithstanding that a preferable title might exist in others through the deceased legatee, the estate thus jointly held by them, was partible, and either widow might maintain a suit for partition. This is consistent with the principle frequently enunciated, that the object of a partition suit is to transform joint possession into possession in severalty : Durgacharan Achuryya v. Khundkar Enamal Haq  27 C.L.J. 441. In the case before the Judicial Committee, it was observed that the Allahabad High Court had correctly held that possessory title was sufficient to justify the institution of a suit for partition; and it is precisely on this footing, that the Judicial Committee held in Bhagvat Sahai v. Bipin Behary Mitter  37 Cal. 918 that partition might be effected as between co-owners, although their interests were not of equal grade, for instance, between a proprietor and a tenure-holder. We are of opinion that, in the case before us, the plaintiff is competent to seek, as between himself and the contesting defendants, a partition on the basis of possessory title; and it is, for this purpose, immaterial that the title to this tract is liable to be challenged by the other co-owners of the taluk. There is, however, no possibility of such a contingency here, because the other co-owners who have been made parties have not raised objection to the proposed partition.
8. Finally, it has been urged that if this view be adopted; the suit is defective, as it does not include all the lands comprised in the taluk, and must be deemed a suit for partial partition : Rajendrakumar v. Brojendrakumar A.I.R. 1923 Cal. 501. There is plainly no force in this contention. No property can be included in a suit for partition, unless each of the parties to the suit claims an interest therein : Ramrntan Nag v. Haricharan Nag (1913) 18 C.L.J. 556, Sris Chandra v. Mahima Chandra (1915) 23 C.L.J. 231. It is not disputed that all the lands in which the plaintiff and the defendants are interested are comprised in this litigation; and in the lands excluded, the plaintiff has no interest, although the defendants have an interest therein along with other persons.
9. We are of opinion that the Court below has correctly held that the suit was triable in the Civil Court. As regards the merits, there is no substance in the appeal. An objection was indeed raised in the course of argument, as to the extent of the shares of the defendants inter se. That question does not appear to have been raised in the Court below and is not covered by the grounds of appeal in this Court. We must consequently decline to entertain the point.
10. The result is that the decree made by the Subordinate Judge is affirmed and this appeal is dismissed with costs to the plaintiff respondent.