1. This appeal arises out of a suit for partition instituted by the plaintiff Jolfa Bibi to have her 3 as. 11-12/27 p. share in the lands of Schedule I and 10 as. 2 p. share in the lands of Schedule II of the plaint after partition by metes and bounds.
2. The plaintiff's case was that one Pela Gazi left 3 sons, Baksha Ali, Kamar Ali and Safar Ali, that Baksha Ali predeceased his two brothers, that defendants Nos. 1 to 8 are the descendants of Baksha Ali and Kamar Ali, that Safar Ali left a son Nijamat Ali, that Nijamat Ali died leaving a widow named Sabjan, a daughter (viz., the plaintiff) and a son who subsequently died leaving a widow, the defendant No. 9 and a daughter, the defendant No. 10, and that last of all Sabjan died. According to the plaintiff the lands of Schedule I were owned by Pela Gazi, and those of Schedule II belonged to Nijamat Ali. Defendants Nos. 11 to 26 are said to have purchased portions of the lands from some of the aforesaid defendants.
3. Of the defendants only Nos. 1, 9, 10,11, 12,13,16 and 18 filed written statements and the others did not appear in the suit. Of these again all gave up the contest except Nos. 1 and 18.
4. The main defence of the defendant No. 1 was that the lands did not belong to Pela Gazi but to Baksha Ali, that plaintiff's grandfather Safar Ali was not a son of Pela Gazi but of one Munshea, that Munshea purchased some lands of lots Nos. 1, 2 and 7 of Schedule I, that his two sons Chand Mia and Safar Ali were in possession thereof and as such the names of Makbul Ali (Chand Mia's son) and Nijamat Ali (Safar Ali's son) are to be found in the Khatians, but that the entries are not quite correct, and that, in the lands of lot No. 2 of Schedule II, Nijamat Ali's vendor Jinnad Ali had no title.
5. The defence of the defendant No. 18 was much on the same lines with that of the defendant No. 1, and he further alleged that the plaintiff was already in possession of her share in the lands that she had inherited from her father.
6. The learned Munsiff gave the plaintiff a decree declaring her right to the shares claimed and a decree for partition and mesne profits. He gave certain directions as to how the partition was to be effected without disturbing present possession as far as practicable and suggesting that equality of division was to be secured by awarding compensation if that was necessary.
7. Against this decree this defendant No. 1 alone preferred an appeal, and he implead-ed the plaintiff alone as respondent in that appeal. The learned Subordinate Judge allowed the appeal and dismissed the plaintiff's suit in its entirety. He came to the findings that Safar Ali was a son of Pela Gazi, that lots Nos. 1 to 5 of Schedule I belonged not to Pela Gazi but to Baksha Ali, that Nijamat Ali's vendor Jinnat Ali bad no title to the lands of lot No. 2 of Schedule II; and as a result of these findings he came to the conclusion that Safar Ali inherited l/6th share in lots Nos. 1 to 5 of Schedule I, and Nijamat Ali had l/3rd share in Jots Nos. 6, 7, 7 (ka) and 7 (Ma) of Schedule I and lot No. 1 of Schedule II. Apart from anything else it is difficult to appreciate on what materials this distinction is made between the properties acquired by Baksha Ali and those acquired by Nijamat Ali; at any rate none are disclosed in the judgment of the learned Subordinate Judge.
8. The learned Subordinate Judge then proceeds to observe that ' the plaintiff's title is hence found to her legal share in the said lots of the said schedules.' What ha means by this is not clear, whether the shares claimed by her which could not by correct in view of the finding that lots Nos. 1 to 5 of Schedule I were the properties not of Pela Gazi but of Baksha Ali or shares which she was entitled to under the Mahomedan Law on the footing of the findings of fact referred to above.
9. The learned Subordinate Judge has found that there was some sort of partition for convenience of possession. He has not found that any of the parties acquired any right by adverse possession; on the other hand, his findings as they stand suggest the contrary. A partition for convenience of possession such as has been found by the learned Subordinate Judge does not appear to have been suggested in the pleadings of the contesting defendants; in any case, that by itself cannot stand in the way of a decree for partition so long as it is not found that it was in conformity with the shares of the respective parties. It is Unnecessary to refer in detail to the other findings, for instance, as to some of the dags being in the possession of strangers and as to the plaintiff not having been really dispossessed of her paternal lands, and as to other matters, for they are too obscure and indefinite.
10. I have carefully considered the pleadings in this case and have also analysed the findings of the two Courts below and while on the one hand the judgment of the Court of first instance is not altogether free from comment, that of the Court of Appeal below, to say the least of it, is not less unsatisfactory.
11. The case must therefore go back to the lower Appellate Court so that the appeal of the defendant No. 1 to that Court may be dealt with afresh and disposed of in accordances with law.
12. Costs to abide the result.
13. Before parting with the case I only wish to add that it is desirable that every effort should be made to dispose of the appeal as early as possible.
14. I agree.