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Calcutta High Court
Jogendra Chandra Shaha Chowdhury vs Srish Chandra Shaha Chowdhury And … on 17 February, 1909
Equivalent citations: 1 Ind Cas 10
Bench: Brett, Fletcher


In this appeal, we are of opinion that the view taken by the lower Courts cannot be maintained. The plaintiff brought a suit for partition against the defendants and claimed that certain lands held by him and the defendants in their entirety should be divided amongst them. The defendants said that they and the plaintiff held some other pieces of land jointly with some other parties and they contended that, in consequence of that fact and the fact that the plaintiff had not included those other lands in his application for partition, the suit must fail. Both the lower Courts have accepted this contention and have dismissed the suit. In our opinion, both the lower Courts are wrong. The plaintiff was certainly entitled to bring a suit for partition of the lands held jointly in their entirety by himself and the defendants and there is no reason why he should be compelled to include in that suit lands held by him jointly with the defendants and other persons. If the defendants think that any inconvenience is likely to result if the shares held by them and the plaintiff in the other lands are not brought into partition, the remedy lies with them to institute a suit to have those other lands partitioned and to pray that, pending the decision of that suit, the proceedings in this partition may be stayed so that it may be possible to bring into partition in this suit the share in the other lands which, on partition in the other suit, may be found to belong to them and the plaintiff jointly. The result, therefore, is that we set aside the judgments and decrees of the lower Courts, decree this appeal and direct that the case be sent back through the lower Appellate Court to the Court of First Instance in order that that Court may proceed to try the plaintiff’s suit. The plaintiff is entitled to his costs in this Court as well as in the lower Appellate Court.

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