P.N. Mookerjee, J.@mdashThis appeal is directed against a concurrent decree for partition, passed by the two Courts below in favour of the Plaintiffs, who are the principal Respondents before us. The Appellants are some of the Defendants.
2. The suit has been decreed by the two Courts below after over-ruling the Defendants'' plea of multifariousness and after ascertaining the Plaintiffs'' share in the disputed properties as 4 annas 9 gandas and 2 karts.
3. In support of this appeal Mr. Lala has first contended that the suit should have been thrown out on the ground of multifariousness. It appears from the Plaintiffs'' case itself that, in the suit, properties were included, in which the Plaintiffs, no doubt, claimed to be interested but all the Defendants were not interested in all the items of properties. In some of the properties, some of the Defendants were interested as owners by purchase and, in some others, some of the other Defendants were interested under settlement from auction-purchasers at certain execution sales. Prima facie, there was some misjoinder of causes of action and parties, but, having regard to the nature of the suit, which was a suit for partition, the matter has to be dealt with on principles of convenience and adjustment of equities or equitable adjustment between the parties, which favour the Plaintiffs-Respondents and, as in this particular case, the above objection was not given effect to by any of the Courts below, that is, up till the first appellate stage, we are not inclined to give effect to the same, in view, particularly, of Section 99 of the Code of Civil Procedure, there being nothing on this point to affect the merits of this appeal and no question of jurisdiction either being involved.
4. Our attention in the above connection, has been drawn to the several cases reported as follows:
Syed Habibur Rasul Abul Faiz v. Ashita Mohan Ghose (1907) 12 C.W.N. 640; Ramtaran Nag Mazumdar v. Hari Charan Nag Mazumdar (1913) 18 C.L.J. 556; Srish Dutta Chaudhury v. Mahima Chandra Dutta Chaudhury (1915) 23 C.L.J. 231; Kali Charan Singha v. Kiranbala Devi (1919) 29 C.L.J. 494; Rajendra Kumar Bose v. Brojendra Kumar Bose (1922) 37 C.L.J. 191; Tarini Charan Chakravartty v. Debendra Lal Dey (1935) 39 C.W.N. 1044; Harey Harey Singha Choudhury v. Hari Chaitanya Singha Chaudhury (1936) 40 C.W.N. 1237; Kasiswar Basu v. Nakuleswar Bose (1951) 89 C.L.J. 33; Dwijapada Mondal v. Bholanath Mondal (1953) 92 C.L.J. 77; Khantamayee Debya v. Sm. Rukmini Devy (1944) 48 C.W.N. 759; and Ranjit Kumar Pal Choudhury v. Murari Mohan Pal Choudhury (1957) 62 C.W.N. 390; but we do not think that they really affect the above position or the instant case.
5. These cases appear to be clearly distinguishable on facts and, even apart from that, the principle, which has been held to underlie those decisions and which should govern cases like the present vide in particular
6. Mr. Lala also raises the contention that the decision of the Court of appeal below, in particular, is based on a finding that certain alleged rent sales were void and this finding has been arrived at in the absence of the landlords auction-purchasers and, accordingly, the same must be held to be vitiated.
7. It is clear, however, that this objection as to non-joinder of those landlords auction-purchasers was not taken in any of the Courts below and, accordingly, in the circumstances of this case, in view particularly of the provisions of Order 1, Rule 13 of the CPC and Order 2, Rule 7 of the same Code, read in the light of Order I, Rule 9 of the Code, this objection cannot be entertained at this late stage, that is in second appeal, the more so, in view particularly of the provisions of Section 99 of the Code, referred to hereinbefore.
8. It was also brought to our notice that, with regard to the kobalas, on which some of the Defendants claim title, the same were held to be void as the Plaintiffs were minors at the date of the said kobalas and they were represented by persons who were described as their natural guardians, but, under the Mohammedan law, such representation would be of no effect and the kobalas would not pass the title of the Plaintiffs. The finding, however, that the kobalas were void might be misunderstood in the sense that they were altogether void in law, or in other words, that they were void not only against the Plaintiffs but also against other persons who were vendors therein. This must be cleared up or clarified by us and it is, therefore, clearly indicated that the said kobalas, which were found to be void by the Court of appeal below, would be void only as against the Plaintiffs on the present materials before the Court.
9. There is further one sale certificate, which is Ex. 1g on the record and which relates to C.S. khatian No. 280 of mouza Goltikuri, and this auction sale, from the date of it, as appearing in the said sale certificate, must be held to have been held at a time when the Plaintiffs'' predecessor concerned, namely, Miajan was alive and, accordingly, under this sale the Plaintiffs'' interest, if any, in the said khatian must be deemed to have passed, or, in other words, the Plaintiffs must be held not to have any little in respect of this khatian in the present proceedings.
10. In the above view, we would allow these appeal only to this extent that the Plaintiffs'' claim in respect of the above C.S. khatian No. 280 must be dismissed and, subject to that, the decree of their suit as made by the Courts below must be upheld.
11. The appeal is disposed of as above. Let a fresh decree be prepared or drawn up by the learned trial Judge in term of this judgment.
12. There will be no order as to costs, either in this Court or in the Court of appeal below.
13. It must be made clear that, in this judgment, we are deciding no question inter se as between the Defendants and we only uphold the decisions of the Courts below in respect of the Plaintiffs'' rights, subject to the exception or variation made by us, namely, that the Plaintiffs'' title, if any, in C.S. khatian No. 280, has been extinguished by the sale under Ex. 1g.
14. Let these records go down as soon as possible.
A.K. Dutta, J.
15. I agree.
