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 the second schedule 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 plaintiffs 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 the second schedule property-- I omit all reference to the property of the first schedule--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. 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, he alleged that these mortgages by defendant 1 were all fraudulent--apparently fraudulent on the part of both the mortgagor and the mortgagees and he said that the suit and the execution sale and everything else he could think of were fraudulent. He 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 mofusil, be 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 the first schedule property, the trial Court has declared the plaintiff's title to an eight annas share and has declared that the plaintiff is to get possession of it after partition. So far as that part of the decree is concerned the plff., makes no complaint at all. As regards the second schedule property, the plaintiff's claim has been simply dismissed and the plaintiff brings this appeal, The appeal is clearly concerned only with the second schedule property. The grounds mentioned in the body of the memorandum of appeal are all grounds concerning the question whether this second schedule property was really joint property in which the plaintiff had an interest or was the sole property of defendant 1. But under the cause title, the plaintiff put the following: 'Appeal valued at Rs.l,00,000 for declaration of title and partition and at Rs.:100 for injunction.'
2. Accordingly, the Stamp Reporter and the learned Registrar have been occasioned great deal of difficulty in finding out the proper court-fee payable on this appeal.
3. 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 the second schedule 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 the second schedule 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.
4. 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 v. Annath  8 Cal. 757 and also by Chakravarti, J., in Rajani v. Rajabala A.I.R. 1925 Cal. 330. 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 clear case of partition and is not converted into a case of claim to possession because the defendant brother or the defendant mortgagees want 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 I was entitled to partition and I shall confine my appeal to that.
5. 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.
(After admission of appeal, the appellant applied for temporary injunction restraining defendant 6 from taking possession under the Court sale, till the appeal was disposed of.)
6. The petitioner was unsuccessful in a suit which he instituted and has since preferred an appeal to this Court. The part of the suit which we are now concerned with was brought on the allegation that the plaintiff's brother, defendant 1, asserting his 16 annas right to certain properties mortgaged it to defendants 2, 3 and 4 as well as to defendant 5 and that defendant 6 has purchased it at a sale in execution of a decree in a mortgage suit obtained by defendants 2, 3 and 4. The prayer in the plaint was for declaration of title to an 8 annas share in the properties, for partition of that share and also for an injunction restraining defendant 6 from taking possession under his purchase. The suit having been dismissed the plaintiff has appealed to this Court. On a question of court-foes having arisen in the appeal the plaintiff has given up his prayer for injunction as unnecessary and has confined his appeal to a declaration of title and partition. The prayer for declaration of title is only introductory to the prayer for partition, which has been asked for in the appeal on the footing that the plff. is in possession. The question involved in the present application is whether the plaintiff should have an injunction from this Court restraining defendant 6 from taking possession under his auction purchase till the aforesaid appeal has been disposed of.
7. It is quite true that ordinarily, if this plaintiff makes no prayer for a permanent injunction in a plaint, a temporary or interim injunction of a like nature should not be issued in his favour. But there may be cases in which a relief in the shape of a permanent injunction may not be necessary for the plaintiff, the other reliefs which the decree may provide for being sufficient. It is quite possible that if the plaintiff succeeds in having his title declared to an 8 annas share and in having a decree for partition to the extent of that share in the presence of defendant 6, these reliefs by themselves will stand in the way of defendant 6 as regards his getting possession under his purchase to the extent of that share. In that view the withdrawal of the prayer of a permanent injunction, such as there has been in the appeal, should not preclude the plaintiff as regards the temporary injunction he asks for.
8. A question has also been raised as regards the sufficiency of the case for an injunction in view of the provisions of Order 39, Rule 1, Civil P.C. It may be pointed out, as regards this matter, that so far as the powers of this Court in the matter of issuing injunctions on parties in an appeal pending before it are concerned, they are not circumscribed by those provisions and that any order may be made by it which ends of justice or expediency may require.
9. We have carefully taken into account the considerations that weigh in favour of as well as against the order that is applied for. We are inclined to the view that it would, on the whole be just and convenient to all parties concerned to stay the delivery of possession till the appeal is disposed of, seeing that a change of possession before that date might complicate matters adversely to the plaintiff should he eventually succeed in the appeal. We are, on the other hand, clearly of opinion that defendant 6 should be indemnified against the loss that he will suffer by being prevented from taking possession under the purchase he has made. We are told that the property is capable of producing a profit of about Rs. 200 a month and on that calculation we make the following order: That the defendant 6 be restrained till 30th June 1931 from taking possession of the property under the purchase he has made; that if within that date the plaintiff deposits a sum of Rs. 1,200 in the Court below defendant 6 will be entitled to withdraw that amount and the aforesaid injunction will continue and remain in force till 2nd January 1932; but that in default of such deposit the injunction will terminate on 30th June 1931 and there will be nothing thereafter which will stand in the way of defendant 6 from proceeding to take possession. In case the plff. succeeds in the appeal deft 6 will have to refund to the plaintiff a half of the amount so put in.
10. We further order that the preparation of the paper books in the appeal be expedited. The plaintiff-appellant must take all possible steps to get the appeal ready for hearing by the date the Court reopens after the pujah vacation when on his mentioning the case to the Court a date will be fixed for its hearing so that the appeal may be finally disposed of before the end of December 1931.
11. As it is an indulgence that we are granting to the plaintiff ho must pay deft. 6 the costs of this application hearing fee being assessed at two gold mohurs.