P.N. Mookerjee, J.@mdashA short but important and difficult question falls to be answered in this Second Appeal which arises out of a suit for
declaration of title and recovery of possession. The appeal is by the defendant No.1 against whom, substantially speaking, a concurrent decree has
been passed by the learned Courts below for ejectment and mesne profits. The learned Munsif decreed the suit for ejectment and also for mesne
profits against defendant No.1 from January, 1953. The lower appellate Court varied it by only splitting up the decree for mesne profits against the
two defendants Nos. 1 and 2. Defendant No.1 has appealed from the said decree and the plaintiff, in his turn, has filed a cross-objection against
the above variation or modification and also the dismissal of his claim for mesne profits for the year 1952 and for costs opf the appeal before the
Court or appeal below.
2. The plaintiff was a purchaser from one Baruneswar Banerjee, who claimed to have obtained the disputed property by inheritance and
subsequent partition. That property, which comprised a room in Holding No.222, G.T. Road, Sibpur, was part of the estate, left by Baruneswar''s
father Rai Saheb Krishnadhan Banerjee. Baruneswar was one of the four sons and heirs of the said deceased, his other three sons and heirs being
Bhubaneswar Banerjee, Kasiswar and Biseswar Banerjee. The aforesaid estate, comprising inter alia, the two holdings Nos.222 and 222/1, G.T.
Road, Sibpur, thus devolved the four persons abovenamed, each whom got an undivided one-four share therein.
3. In or about the year 1946, on September 13 of that year, to be exact, Biseswar instituted T.S. No.55 of 1946 in the Court of the 2nd
Subordinate Judge, Howrah, for, inter alia, partition of the aforesaid properties and, in the said suit a sole decree was passed on December 1,
1947, on a compromise petition filed by the defendant co-sharers. Under this decree, the aforesaid two holdings Nos.222 and 222/1 were allotted
exclusively to Baruneswar and upon the concurrent findings of the two Courts below, which are not open to challenge in Second Appeal he
(Baruneswar) also obtained khas possession of the same. Thereafter, it appears, he sold holding No.222 in its entirely to the present plaintiff who
claims to have obtained possession of the same, including the disputed room but alleges subsequently dispossession by the defendants. This
dispossession furnished the immediate cause of action of the present suit.
4. The suit is contested in the main, by defendant No.1, who claims to have been inducted in the suit room on April 14, 1948, as a monthly tenant,
at Rs.18/- per month, by defendant No.2 (who was an admitted co-sharer of the plaintiff''s vendor Baruneswar prior to the disputed partition) and
his case is that the suit property, as part of holding No.222, was the joint property of the four brothers on the said date and is so even up to now.
He avers that there has as yet been no perfect partition in respect of the said property and all that has happened is that there is a preliminary sole or
compromise decree for partition, not yet followed up by any final decree, without which no exclusive title to the aforesaid holding, which includes
the suit room, could vest in Baruneswar or could be transferred to or acquired by the present plaintiff. He thus claims to be a tenant in possession
either under defendant No.2 or under the said defendant and his co-sharers who may include the plaintiff or, under the latter alone, who, in any
view, is bound to recognise him as a tenant. He further asserts that, in the absence of a final decree for partition, Baruneswar could not transfer to
the plaintiff and accordingly, the latter claim no title to the suit property.
5. The sole decree (Ext. 13) is not disputed. There is no dispute also that, under the same, Holding No.222 was allotted to Baruneswar. Neither is
the plaintiff''s purchase from Baruneswar challenged by the defendants. What is said, however, is that the sole decree (Ext. 13) was nothing more
than a preliminary decree for partition and it could not confer exclusive title to any of the co-sharer to any of the joint properties. It is claimed
further that, even regarding it as a composite decree, both preliminary and final, and thus a final decree for partition, the same not having been
drawn up on the requisite stamp paper it could not be used as a final decree so as to confer exclusive title to Baruneswar or to his transferee, the
plaintiff, in regard to the disputed holding No.222. The plaintiff''s case of possession and dispossession, including his allegation of khas possession,
both of himself and his vendor predecessor has also been denied but as stated already that point must be held concluded against the defendant by
reason of the concurrent findings of the two Courts below. The net position thus is that there was a sole decree for partition, providing for
allotments also, but not followed by or drawn up as a formal final decree for partition on requisite stamp paper, though acted upon and followed by
amicable possession in terms thereof. The question is what on the above facts, is the true effect in law as to the rights of the parties in particular, of
the original co-sharers.
6. A final decree for partition is obviously an instrument of partition under the definition Section 2(15) of the Indian Stamp Act. It, therefore,
requires to be stamped under Schedule I, Article 45, of the said Act and must be drawn up on a stamp paper of the requisite value to operate as
an effective final decree for partition and to be admissible as such. Ext 13 is thus plainly inadmissible as a final decree for partition and, upon it or
under thus document, the plaintiff cannot claim executive title to the suit property either for himself or for his vendor Baruneswar.
7. That, however, is not of much assistance to the defendant-appellant in the present case. It is open to the parties to effect an amicable partition
and no instrument even, that is, no writing is necessary for the purpose. The mere existence of a decree, as in the present case, specifying the
shares, and even the allotments of the parties, does not take away their above right, though its exercise may have to be regulated by or made in
accordance with it. Until and unless there has been a valid and effective partition, this right of the parties subsists. If, then, the sole decree (Ext. 13)
does not constitute such a partition or is not admissible or receivable in evidence for providing the same, there has been, in the eye of law, no
partition to effect or take away the right of the parties to make an amicable partition of their properties and this they can do well upon the
allotments, contained in the sole decree, which, as a valid preliminary decree, would be final as to their shares, though, as to the allotments or title
to the same, it may not be operative as a complete partition, not being a valid final decree in law. The parties, therefore, when they make an actual
division by taking possession by metes and bounds according to the allotments, mentioned in the sole decree (Ext. 13), effect in law, a partition on
those terms, amicably and without writing, and this will be an effective partition in law as between them conferring title to the respective allotments
(Vide in this connection Tara Pada Ray Vs. Shyama Pada Ray and Others, .
8. That, indeed, is the position in the present case upon the concurrent findings of the two Court below, to which reference has been made above
and which are not open to challenge in this Second Appeal and in that view, Baruneswar must be held to have acquired exclusive title to, inter alia,
Holding No.222 long before the defendant No.1''s alleged tenancy came into existence on April 14, 1948.
9. In the premises, the plaintiff''s title to the suit property must be upheld and it must be held that defendant No.2 had no title to the same on the
date of creation of defendant No.1''s alleged tenancy nor did defendant No.1 acquire any valid tenancy from him. No question, then also arises as
to the plaintiff being obliged or compelled to recognise defendant No.1''s said alleged tenancy as it was not even a case of a tenancy, created by an
owner during the subsistence of the joint ownership.
10. In the above view, this appeal should fail and it is dismissed with costs subject only to this that the appellant-defendant will have time till the end
of the present Bengali year to vacate the suit premises.
11. As to the plaintiff''s cross objection, it is enough to say that, in view of the reasons, given by the learned Munsif and affirmed by the learned
Subordinate Judge, which seem to us to be quite cogent, we are not inclined to grant the plaintiff any decree for mesne profits for the year 1952
nor do we think that the minor modification, made by the Court of appeal below in the matter of the decree for mesne profits by splitting up the
same against the two defendants is unjustified in the facts of this particular case. We think, further, that the lower appellate Court did not in the
circumstances, which appear from the record, err in principle in refusing costs in the appeal before it. We, accordingly, dismiss the cross-objection
also, though without costs.
N.K. Sen, J.
12. I agree.