1. This appeal arises oat of a suit for partition. The case of the plaintiffs was that many years ago some seven persons of whom the plaintiffs represented, three took a lease of a large area of land within certain boundaries from the Maharaja of Tipperah. The parties remained in possession of distinct portions of the land by private arrangement for the sake of convenience, but that there was no regular partition of the demised land. Now, they asked that the land should be partitioned. The case of the defendants was that the lands had all. along been partitioned Now, it appears, that the actual amount of the lands purported to be demised by the patta granted by the Maharaja was some 32:. kanis of land. It is apparently the case, of both the parties that some 12 kanis. out of the demised land was sold and that they remained in possession of the remaining 20 kanis, settlement operations had since taken place and the parties were found to be in possession of some 1712 acres of land being roughly 52 kanis. As far as I cm see it is the. case of both the parties and certainly of the defendants that the land demised by the patta is oovered by certain dags. Nos. 870, 871, 879, 882, 884, 885, 887, 1326 1336, that these lands measure as I have stated 17'12 acres. There was a further case with regard to the schedule kha land with which we are not now concerned.
3. The trial Court found that there had been no previous partition of the lands covered by schedule lea and ordered that a partition should be made of it. With regard to the schedule kha land he ordered that the plaintiff's claim should be dismissed.
4. Both the parties appealed to the District Court - the plaintiff with regard to the schedule kha land and the defendant with regard to the schedule lea, land. The learned Judge dismissed the appeal of the plaintiffs regarding the schedule kha land and allowed the appeal of the defendants so far as the schedule ka land was concerned. He held that there had been a previous partition of this land and hence he dismissed the plaintiffs' suit totally.
5. The plaintiffs have appealed to this Court and they contend that the learned Judge has made out for the defendants a case which is different from that set up by the defendants in their pleadings. There the case of the defendants was that the schedule lea land was covered by the original patta, while the learned Judge seems to think that the schedule ka land comprises not only the land of the original patta but also some land which he calls the excess land and has made a new case that there was reclamation outside the boundaries of the lands covered by the patta to which the parties lay exclusive claim by adverse possession.
6. Looking at the judgment of the learned District Judge it seems to me that there is substance in this contention of the appellants. The learned Judge has found at p. 8 of the paper-book that.
in respect of schedule ka lands a partition has been made and that the two parties are in possession respectively of the land falling to the allotment of each.
7. At p. 7 of the paper-book he has found that there was a regular partition of such of the lands demised as were then fit for cultivation. Now, the schedule lea land included all the land covered by the patta which had been brought under cultivation and, therefore, obviously (included something more than the land which was partitioned before 1912. Therefore it is quite clear that the whole of the lands of Schedule ka, were not partitioned in 1912, This, I think, is quite clear from the learned Judge's own finding that what was partitioned at that time were the lands brought under cultivation. It does not seem to be anyone's case that there was no further reclamation after the year 1912. The remaining land apparently would remain ejmali. Any further reclamation of this ejmali land would obviously be for the benefit of all the co-sharers.
8. Mr. Jogesh Chandra Boy who appears for the respondents contended that the appeal must fail on this finding of fact, as there had been a partition of some of the land there could not be a partition of the whole land as was sought for by the plaintiffs. The plaintiffs, he contended, could only sue for a partition of these lands which had not been partitioned before 1912. In support of this contention he refers to the decision of the Privy Council in the case of Abdul Wahab Khan v. Tilalcdhari Lal . This decision, no doubt, supports the contention of the respondents that the plaintiffs cannot succeed in the suit as now framed because it has been found as a fact that some of the lands included in this suit have already been partitioned. In the case before the Privy Council their Lordships ordered that the suit should be dismissed and further added that this would be without prejudice to the right of the plaintiff to sue for partition of the lands which are admittedly still undivided. We think, therefore, the proper order in this case would be that the order of the District Judge should be set aside and the case should be sent back to the first Court to determine what lands had been partitioned before 1912, and these lands should be separated from the other and the partition of the remainder will be effected. If, of course, it cannot be determined what lands were partitioned before 1912 then the plaintiffs' suit has to be dismissed.
9. Costs of this appeal will form part of the costs in the suit, and costs in the suit will abide the result.
10. It will be open to the parties to adduce any further evidence that they may desire to adduce.
11. I agree.