1. This is an appeal by the second party defendant against the final decree in a suit for partition of joint property. According to the plaintiff, he interested in the property to the extent of two-annas share. The first defendant, the Maharaja of Darbhanga, has ten-annas share and the second defendant four-annas share. The plaintiff prayed that a partition might be effected and separate allotments made in proportion to the shares held by the parties. The first defendant did not dispute the extent of the shares, but stated that the land might be partitioned in proportion to the ten-annas share owned by him and a separate allotment made in his favour. The second defendant also took up a similar position. In these circumstances, on the 15th July 1907 a preliminary decree was made in these terms: 'There is no dispute about the shares. The defendants in their written statement allege that they have, no objection to the partition being effected. It is, therefore, ordered that a Commissioner be appointed to make the partition of the estate according to the shares of the parties in the estate stated in the plaint and found above.' Against the decree, no appeal was preferred by any of the parties. When the matter went to the Commissioner, on behalf of the Maharaja it was argued that in respect of the raiyati lands the partition should be made, not according to the shares, but according to possession. To enable one to appreciate the full effect of this contention, it is necessary to state that the total rent payable by the tenants jn respect of the raiyati lands is approximately Rs. 1,038. The sum payable out of this amount to the Maharaja, according to his share in the estate, would be Rs. 648, that payable to the plaintiff, would be Rs. 129 and to the second defendant Rs. 259. As a matter of fact, it has been proved that the Maharaja has for some time past collected more than what was payable in respect of his share, namely, Rs. 749 instead of Rs. 648. The plaintiff and the second defendant have collected less than the amount realisable in their shares. The contention before the Commissioner was that the partition of the raiyati lands should be effected not according to the shares, but according to possession. The Commissioner overruled this contention, on the ground amongst others that it was not open to the parties, so far as he was concerned, to take up a position inoonsistent with that determined by the preliminary decree. When the matter same before the Subordinate Judge, he held that the view taken by the Commissioner was erroneous and that in respect of the raiyati lands the partition should be made according to the possession actually held by the parties. He, therefore, set aside the report of the Commissioner in this respect and ordered a partition according to the directions given by him. The Commissioner has submitted his final report based on these directions of the Subordinate Judge and the final decree has been made thereon. In our opinion, the view taken by the Subordinate Judge is erroneous.
2. It was clearly not open to the successor of the Subordinate Judge who made the preliminary decree in 1907 to set aside in substance that decree. The preliminary decree was binding on the Court at all subsequent stages of the suit, and the only question open for consideration was, whether that decree had been fairly and justly carried out by the Commissioner. If authorities are needed for the obvious position, that an order made by a Judge is binding on his successor till set aside in due course of law, reference may be made to the cases of Luleet Pandey v. Byjnath Singh 14 W.R. 285; Bodun Burooah v. Abdool Gunny 19 W.R. 281; Broja v. Juggut Chunder 21 W.B. 199; Gujraj Singh v. Bijai Singh 6 N.W.P.H.C.R. 114; Suraj Din v. Chattar 3 A. 755 : A.W.N. (1881) 55; Kharng Prasad v. Durdhari Rai 14 A. 348 : A.W.N. (1892) 25; Jammalamadaku Subbalakshmamma v. Jammala Vankatarayadu 2 Ind. Cas. 525 : 32 M. 318 : 5 M.L.T. 75.
3. An attempt has finally been made to interpret, as it has been said, the preliminary decree of the 15th July 1907. But no question of construction arises. It is plain that the parties at that stage were perfectly agreed that the partition should be effected according to their shares. It was only subsequently that a now position inconsistent with the preliminary decree was taken up by one of the parties. There is thus no escape from the conclusion that the view taken by the Subordinate Judge is erroneous and his decree in list be set aside.
4. The appeal is allowed, the decree of the Subordinate Judge discharged and the case remanded to him in order that partition may be made on the basis of the fiist report of the Commissioner dated the 10th May 1908. The appellant is entitled to his costs in this Court from the Maharaja respondent. We assess the hearing fee 1st five gold mohurs.