1. Amongst the several objections which have been urged on behalf of the appellants in this appeal, which they have preferred from a final decree in a suit for partition, there is one which, in our opinion, is of considerable substance.
2. The appellants were the defendants Nos. 6 to 9 in the suit. The Commissioner found that the total value of the subject-matter of partition was Rs. 4,22,974-6 6 and that each of the three sets of persons (the second and the third sets being mutawallis of wakf estates) amongst whom the property was to be divided, namely the plaintiffs, the defendants Nos. 1 to 6 and the defendant Nos. 4 to 9, was to get properties worth one-third of the said amount, that is to say, Rs. 1,40,991-7-6. So far as the set consisting of the defendants Nos. 4 to 9 are concerned, the Commissioner allotted to them the following properties.
Lots III, III (a) and III (6) of Plot No. 1.
Lot III of Plot No. 2.
Lot III of Plot No. 3, and Lots III and III (a) of Plot No. 4.
3. Defendants Nos. 6 to 9, the defendant No. 6 being common in the second and the third sets, put forward several objections before the Commissioner, one of which was that a quantity of land lying on the north of Hari Mohan Basu Road and east of Dobson Road and comprising an area of 3 bighas 10 cottas was lease-hold and not free-hold, and that therefore the same should be treated as land with disputed title. Defendants Nos. 1 to 3 filed a petition supporting the defendants Nos. 6 to 9 in respect of the aforesaid matter. According to the defendants Nos. 6 to 9 this area would correspond to Lot III and part of Lot III (a) of Plot No. 1 both of which Lots were given in their entirety to the said defendants in spite of their objections aforesaid. The Commissioner overruled the objection mainly on the ground that it was not taken before the Court before the preliminary decree was passed.
4. The objection was repeated before the Judge after the report of the Commissioner was submitted. The learned Judge has dealt with the objection in a manner which is not quite comprehensible. He has said:
It is neither necessary nor fair to express any opinion in regard to the merits of the controversy on the point. It seems to me that for the purpose of the present proceedings 15 cottas 12 chittaks of land of the southern portion of that Lot (meaning Lot III of Plot No. 1) may be treated as disputed and a third share of it allotted to the plaintiff.
5. In accordance with this order an area of 5 cottas 4 chittaks of Lot III of Plot No. 1 has been carved out and allotted to the plaintiff.
6. We do not understand on what basis this redistribution 'rests and the respondents have not been able to explain or justify it.
7. It appears that there was a suit for rent (Money Suit No. 316 of 1929 of the Local Third Court of the Munsiff) in respect of 2 plots of land measuring 2 bighas 16 cottas 88 chittaks and 15 cottas 12 chittaks, respectively--aggregating 3 bighas 12 cottas 4 chittaks instituted by a lady against the plaintiffs and the defendants in the present suit, and the appellants had claimed a free-hold interest in the lands in that suit, but such claim was negatived. And we are told that an appeal taken in that suit from the trial Court's decision has been unsuccessful. The learned Judge in the present case has taken only the second plot in the rent suit consisting of 15 cottas 12 chittaks as being a plot with a disputed title ; and omitted the first one. Why he has done so, we cannot find out.
8. We regret very much that we are obliged to interfere in this case in which a very protracted investigation has already been held by the Commissioner and an enormous amount of expense had already been incurred by the parties. But we do not see how we can let the decree stand in such an unsatisfactory state. Some time was given to the parties to try and arrive at a settlement, which they easily could have done without upsetting the entire partition. But apparently they are not mindful of their own interests or the interest of the endowments they represent. In such circumstances, we feel we have no other alternative than to interfere even though such interference may mean the undoing of all that has been done.
9. We accordingly allow the appeal and setting aside the decree appealed from order that the case do go back to the Court below wherein a proper investigation will be held on the question as to how much of the lands allotted to the defendants Nos. 4 to 9 are covered by the decree in the rent-suit aforesaid, and the whole of the area so found included will then be divided equally amongst the three sets of parties. Such other redistribution as will be necessary in consequence of the re-adjustment, if any, of the allotments in Lot No. 1, as the result of the investigation aforesaid, will also have to be made thereafter.
10. The above is the only point to be considered and dealt with on the remand.
11. The appellants will get their costs of this appeal, hearing-fee being assessed at ten gold mohurs from the plaintiff-respondent in the final decree which the Court below will ultimately make, such order as to costs in that Court as may be necessary or just will have to be made by that Court.