W. Comer Petheram, C.J.
1. This is a suit brought by the plaintiff against the defendants to obtain certain declarations, and the facts of the case are, that the plaintiff and the defendants are co-sharers in a mehal called Mehal Soa, and that the defendants had taken proceedings before the Collector for the purpose of having that mehal partitioned amongst the co-sharers. The plaintiff objects to these proceedings on the ground that the mehal in question has already been partitioned, and he has accordingly brought this suit.
2. There are six prayers to the plaint. They are: (a) that it be declared that the lands of Mehal Soa have, from before, been separately in possession of the puttidars according to private partition; (b) that it be declared that the defendants, the applicants for the butwara, have no right to get it partitioned by the Collectorate; (c) that the orders of the Revenue Court,, the last of which was passed by the Board of Revenue on the 8th April 1886, be set aside; (d) that a rubocar be sent to the Collectorate of this district for stopping the butwara proceedings till the disposal of this case by the Court; (e) that such other relief be granted by the Court as the plaintiff may be entitled to; and (f) that costs be awarded against the contending defendants.
3. The Subordinate Judge who tried the case has practically granted all the prayers of the plaint, and the District Judge before whom the matter came on appeal has reversed his decree and has dismissed the suit, on the ground that, the whole claim is barred by Section 26 of Beng. Act VIII of 1876.
4. It is not necessary for us to say anything in this case with reference to any of the prayers in the plaint, except prayer (a), because they are practically abandoned, and with reference to (a) the judgment of the Subordinate Judge is. a short one. With reference to that prayer, he declares that there is a private partition in the mehal.
5. As I said just now the District Judge has dismissed the suit on the ground that it is barred by limitation by Section 26. As to that I think it is enough for us. to say that we do not agree with the Judge in his view of the section. That section does not, in my opinion, bar the right to bring an action; it only limits, the effect of the decree, unless the action is brought within a certain time. But, although we do not agree with the Judge in the reasons for which he dismissed the suit, we think he was right in dismissing it.
6. As I said just now, the only prayer of the plaint which is pressed upon us-is the part which declares that there has been a private partition among the co-sharers in the mehal. That being so, it follows that this is a suit brought under the provisions ot Section 42 of the Specific Relief Act. That section states: 'Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief.'
7. In this case the plaintiff has brought this suit for the purpose of having it declared that there has been this [120J partition, and that by this partition he is entitled to some portion of the property in severalty; and if what he had done had been to bring a suit to declare that he was entitled in severalty to some specific portion of property, then no doubt he would have been entitled to that relief if he proved it. But then he would have had to prove much more than he has proved in this case. He would have had to prove that there had been a private partition, and he would have had to prove that under that partition he was entitled to, and was in possession of, some specific area within this mehal. But he is not entitled, I apprehend, to any declaration unless it affects his right to some specific property. In this case, the decree falls short of that; because it only declares that there has been a private partition which does not carry the matter far enough, and in addition to that it professes to affect the rights of other parties who were net litigating those rights. The only thing the plaintiff was entitled to was a declaration with reference to his own property, and his own property according to his own case is some specific area within this mehal, not indicated by this decree.
8. The question then arises whether we can remand this case so as to enable the parties to get their rights tried. If we remanded the case we should have to remand it for fresh evidence to be taken, and for the case to be tried on different lines, and for a finding to be come to as to what specific pieces of land the plaintiff is entitled to under the alleged partition. That would not only involve the taking of fresh evidence and a fresh trial but also an amendment of the plaint. We do not think that any good purpose would be served by our adopting such a course, because all the costs which have been already incurred would be thrown away, and in fact it would be the same as if a fresh suit had been brought. Under these circumstances we think that the judgment of the District Judge dismissing the suit was right.
9. Our attention has been called to the case of Khoobun v. Wooma Churn Singh 3 C.L.R. 453 as showing that such a suit as this can be maintained, although the specific land to which the plaintiff claimed to be entitled is not declared. But in that particular case the specific land does not seem to have been in dispute, The fact there was that all the co-sharers in the village were admittedly in possession of specific pieces of land, and the only question between the parties was whether the partition had given them the title to the partitioned land. This distinguishes that case from the present one, and therefore in our opinion that case does not conflict with our decision in the present case.
10. For the reasons then which I have given we think that the judgment dismissing the suit was right, although we do not agree with the reasons which the District Judge has given for dismissing it. In the result this appeal must be dismissed with costs.