1. This is an appeal by the third defendant in a suit for partition of joint property, situated in the District of Sylhet and subject to the operation of the Assam Land and Revenue Regulation, 1886. In the Trial Court, an objection was taken that the suit could not be entertained by the Civil Court and an issue was framed accordingly; but no argument was addressed on the question of jurisdiction. The suit was tried on the merits and a preliminary decree was made in favour of the plaintiff. On the present appeal the objection has been urged that the Civil Court has no jurisdiction to entertain the suit under Section 154 of the Assam Land and Revenue Regulation. There is no room for controversy that the point, though abandoned in the Trial Court, can be raised here; Minakshi Naidu v. Subramanya Sastri 14 I.A. 160 : 11 M. 26 : 5 Sar. P.C.J. 54 : 11 Ind. Jur. 393 : 4 Ind. Dec. (N.S.) 18 (P.C.) and Maha Prasad Singh v. Ratnani Mohan Singh 25 Ind. Cas. 451 : 41 I.A. 197 : 42 C. 116 : 18 C.W.N. 99 : 16 M.L.T. 105 : (1914) M.W.N. 565 : 1 L.W. 619 : 20 C.L.J. 231 : 27 M.L.J. 459 : 16 Bom. L.R. 824 (P.C.). In the case last mentioned, the Judicial Committee observed, as follows: 'Seeing that it is a question of jurisdiction, and depends on no disputed facts, their Lordships are of opinion that they cannot decline to entertain it, although it is not specifically raised on the appeal, more especially as it necessarily presented itself in the argument.
2. Section 154 of the Assam Land and Revenue Regulation provides that, except when otherwise expressly provided in the Regulation or in rules issued under the Regulation, no Civil Court shall exercise jurisdiction in any of the matters mentioned. The subjects thus specified inch de the claims of persons to perfect partition and the claims of persons to imperfect partition except in cases in which a perfect partition could not be claimed from and has been refused by the Revenue Authorities on the ground that the result of such partition would the to form a separate estate liable for an annual amount of revenue less than five rupees. The terms 'perfect partition' and 'imperfect partition' are defined in Section 96 in these terms: 'Partition is either perfect or imperfect. Perfect partition means the division of a revenue-paying estate into two or more such estates, each separately liable for the revenue assessed on the entire estate.' The term 'estate' is defined in Clause (b) of Section 3. It is not contended that the present suit is a suit for perfect partition. The plaintiff does not seek to effect a division of a revenue-paying estate into two or more such estate for perfect partition . The plaintiff does not seek to effect a division of a revenue-paying estate into two or more such estates each separately Table for the re-venue assessed thereon. The contesting defendants is urge, however, that the suit is in essence one for imperfect plaintiff; in other words that the plaintiff really seeks a division of a revenue paying estate into two or more portions jointly liable for the revenue assessed on the entire estate.
3. The true scope of sector 154 has been the subject of judicial decisions by no means easy to reconcile. But before we consider them we may describe the scope of the suit. The property in dispute admittedly belonged to one Khusal Raj; he left two sons, each of whom obtained one half share of the taluk. The plaintiff claims to have acquired an interest to the extent of 2-annas and 10-gnndas of the disputed property by virtue of a sale in execution of a decree on a mortgage granted by the descendants of the second son of the original owner. The plaintiff alleges that by virtue of his purchase at the mortgage sale, he acquired an interest in a tract of land which is described in Schedules (1) and (2) attached to the plaint. Schedule (1) sets out the boundaries of an area of 580 acres 3 roods and 16 poles. Schedule (1) sets out the boundaries of an area of 15 hals which, we are informed, correspond approximately to 45 acres. The plaintiff asserts that he required title, not to all the lands in Schedule (1) but oily to such of the lands comprised therein as are not included in Schedule (2), in of her words, the lands in Schedule (2) have to be excluded from the lands in Schedule (1) in order that any ascertain tie precise area claimed by the plaintiff by virtue of his purchase. There is a third Schedule annexed to the plaint which describes an area of 1 hal or 3 acres within certain boundaries. This are however is not situated in the same village as the lands of Schedule (1) The lands of Schedule (2) are situated in village Hizia wherea as land of schedule (3) is situated in village Badapura. The plaint names the history of the title to the disputed land and makes out that the specific lands covered by the mortgage represent a demarcated, plot, corresponding to a specific share in the taluk. The case for the plaintiff consequently is that the specific area which he invites the Court to decide as between himself and the contesting defendants represents a share of the taluk. What is asserted is not that there was a previous partition of the taluk but that the persons interested in all the lands of the taluk have, by mutual arrangement, held possession of specific lands as corresponds more or less approximately, to the share hold by them in the entire property. The cuestion arises, whether Section 154 of the Assam Land and Revnue Regulation bars the partitions of lands in these circumstances 'by a Civil Court, merely because the lands are comprised in a revenue-paying estate. The defendants have invited us to hold, on the authorities which will be presently mentioned that the question should be answered in the affirmative and that the only remedy of the plaintiff is by a proceeding before the Revenue Authorities for partition of the disputed tract.
4. In Abdul Khaliq Ahmed v. Abdul Khaliq Chowdhury 23 C. 514 : 12 Ind. Dec. (N.S.) 342 the land to be partitioned was comprised in tour estates. Before the partition could be effected, it would obviously be necessary to ascertain the land. This involved an enquiry as to what specific land out of each estate was comprised in the disputed area. In these circumstances, it was pointed out that the process involved in essence, a partition not of one estate but of each of four estates. The plaintiff could not escape from the bar of Section 155, because he sought in effect, a partition of land comprised, not in one estate, but in lour estates, each of there would, in reality, be subjected to partition in the suit.
5. In Sarat Chandra Purk yestha v. Prokas Chandra Das Chowdhury 24 C. 751 : 12 Ind. Dec. (N.S.) 1169 it was ruled that an estate does not cease to be an in the estate within the meaning of the Assam Land Revenue Regulation because a few plots of land are common to it and some other estate or because they are held jointly win other persons. It was pointed out, however, that cases were conceivable where there mi ht be imperfect partition of a definite tract where such par it ion did not involve a partition of the estate itself.
6. In Gouri Krishna v. Sabanunda Sarma 32 C. 1036 : 1 C.L.J. 121 there was difference of opinion between Mr. Justice Rampini and Mr. Justice Brett(sic) in reference to Mr. Justice Ghose Mr. Justice Ghose pointed out that whether Section 154 does or does no operate as an effective bar must depend upon the Circumstance of each litigation and that the test to be applied is, whether what was sought by the plaintiff did not in essence involve a partition of the estate. There are two other cases where the point has been recently considered namely, Brojendra Kishore Roy v. Kali Kumar Chowdhury 46 Ind. Cas. 967 : 46 C. 236 and Yasin Ali v. Radha Gobind 55 Ind. Cas. 180 : 30 C.L.J. 480 : 47 C. 354 : 26 C.W.N. 381 but neither of than helos the contention of the appellant. The question which really requires decision in the present case is whether is open to the plaintiff to seek a partition of the disputed tract which is obtained by a deduction of the land comprised in Schedule (2) from the lands comprised in Schedule (1), without a partition of the entire estate, within the meaning of the Assam Land and Revenue Regulation. We are of opinion that the answer must be in the affirmative.
7. It is well settled that a partition may be effected on the basis of possessory title, as appeals from the decision of the Judicial Committee in the case of Sundar v. Parbati 16 I.A. 186 : 12 A. 51 : 5 Sar. P.C.J. 448 : 6 Ind. Dec. (N.S.) 782. In that case possession of the estate, left by their deceased husband. was taken by the two widows of a children Hindu, who had before his death adopted 3 son to whom by a Will he bequeathed has estate. The adopted son to whom by a Will he bequeathed his estate shortly alter the testator. It was ruled that the widows had a possessory tile or interest in the estate, notwithstanding that a preferable title might exist in others through the deceased legatee, the estate this only held by them, was partible, and either widow might maintain a suit for partition. This is consistent with the principle frequently enunciated, that the object of a partition suit is to transform joint possession into possession in severalty Durga Charan Acharjee v. Khundkar Enamal Huq 45 Ind. Cas. 705 : 27 C.L.J. 441. In the case before the Judicial Committee, it was observed that the Allahabad High Court had correctly held that possession title was sufficient to justify the institution of a suit for partition; and it is precisely on this footing that the Judicial Committee held in Bhagwat Sahai v. Bipin Behari Mitter 7 Ind. Cas. 549 : 37 I.A. 198 : 37 C. 918 : 14 C.W.N. 962 : 12 C.L.J. 240 : 8 M.L.T. 228 (1910) M.W.N. 691 : 7 A.L.J. 1137 : 12 Bom. L.R. 997 : 20 M.L.T. 907 (P.C.), that partition might be effected as between co-owners, although their interests were not of equal grade, for instance, between a proprietor and tenure-holder. We are of opinion that, in the case before us, as between the plaintiff and the contesting defendants there my be a partition on the basis of possessory title; and it is for this purpose, immaterial that the title to this tract is liable to be challenged by the other co-owners of the taluk. There is, however, no possibility of such a contingency here, because the other co-owners who have been made parties have not raised objection to the proposed partition.
8. Finally, it has been urged that if this view be adopted, the suit is defective, as it does not include all the lands comprised in the taluk, and must be deemed a suit for partial partition; Rajendra Kumar Bose v. Brojendra Kumar Boss 77 Ind. Cas. 790 : 37 C.L.J. 1915 (1923) A.I.R. (C.) 501. There is plainly no force in this contention. No property can be included in a suit for partition, unless each of the parties to the suit claims an interest therein; Ram Taran Nag Mozumdar v. Hari Charan Nag Mozumdar 12 Ind. Cas. 30 : 18 C.L.J. 556 and Sris Chandra Data Choudhuri v. Mahima Chandra Datta Choudhuri 33 Ind. Cas. 17 : 23 C.L.J. 331. It is not disputed tint all the lands in which the plaintiff and the defendants are interested are co noised in this litigation, and in the land? excluded, the plaintiff has no interest, although the defendants have an interest therein along with other persons.
9. We are of opinion that the Court below his correctly held that the suit was triable in the Civil Court. As regards the merits, there is no substance in the appeal. An objection was indeed raised in the course of argument, as to the extent of the shares of the defendant's interests. That question does not appear to have been raised in the Court below and is not covered by the grounds of appeal in this Court. We must consequently decline to entertain the point.
10. The result is tint the decree made by the Subordinate Judge is affirmed and this appeal is dismissed with costs, to the plaintiff-respondent.