JUDGMENT
B.P. Saraf, J.
1. This appeal is directed against the judgment and decree passed by the Assistant District Judge No. 2, Guwahati by which the judgment and decree passed by the Munsif No. 2. Guwahati was upheld and the appeal was dismissed.
2. The respondent No. 1, as plaintiff, filed a suit before the Munsif No, 2, Guwahati, praying for declaration of her right, title and interest in the suit land and house thereon left by her father Monia Sheikh and also for a preliminary decree for partition of the suit land and house thereon. The case of the respondent No. 1-plaintiff was that she was the youngest daughter of late Monia Sheikh who had a residential house at Athgaon, Guwahati, on a plot of land measuring 1 Katha 2 Lechas. It was claimed that she was one of the heirs of late Monia Sk. along with her two brothers and two sisters and, as such, she was entitled to a share in the said property. It was also her case that she used to reside in a part of the said house even after the death of Monia Sk. in the year 1963. In 1980 her two Brothers drove her out of the said house. Thereafter the aforesaid suit was filed.
3. The suit was contested by the principal
defendants, defendants Nos. 1 and 2, sons of
late Monia Sk., who contended, inter alia,
that the respondent No. 1-plaintiff was not
the daughter of late Monia Sk. and, as such,
she was not their sister and that she never
resided in the suit land and the house thereon.
They contended that they were the sole heirs
of late Monta Sk.
4. The trial Court framed various issues, examined witnesses and considered the documents and came to a finding that the respondent No. 1-plaintiff was the daughter of late Monia Sk. and she was one of his heirs. On the basis of the aforesaid finding the trial Court held that she had right, title and interest over the suit property left by late Monia Sk. The trial Court also decided the claim of the plaintiff for partition and held that she was entitled to one-seventh share in the suit property and passed a preliminary decree declaring her title over 3.14 Lechas of the suit land.
5. An appeal was filed against the aforesaid judgment and decree passed by the trial Court and the learned Assistant District Judge No. 2, Guwahati, who heard the appeal, upheld the finding of the trial Court that the respondent No. 1 -plaintiff was one of the legal heirs of late Monia Sk. and accordingly she had right, title and interest over the property left by him. The learned Assistant District Judge also upheld the preliminary decree for partition of the suit land passed by the learned Munsif declaring that the plaintiff was entitled to one-seventh share in the property left by her father and hence she had title over 3.14 Lechas of the suit land.
6. Aggrieved by the aforesaid appellate order, the present appeal has been filed, challenging the judgment and decree passed by the Courts below on both counts, namely, declaration of right, title and interest of the plaintiff over suit land and the preliminary decree for partition holding that the plaintiff had one-seventh share in the suit property and she was entitled to 3.14 Lechas of land out of the suit property.
7. I have heard the learned Counsel Mr. K. Sarmafor the appellants and Mr. P. C. Deka for the respondent No. 1. So far as the first ground of appeal is concerned challenging the decision of the Courts below that the respondent No. 1-plaintiff was the daughter of late Monia Sk. and one of the legal heirs having right, title and interest over the property left by him, I find that the aforesaid conclusion is based on concurrent finding of fact. The trial Court after examining the evidence of the witnesses, perusal of the documents filed and considering the arguments of the parties came to a finding of fact that the respondent No. 1-plaintiff was the daughter of late Monia Sk. The Appellate Court upheld the said finding of fact. No material has been placed before me to justify interference with the aforesaid concurrent finding of fact of both the Courts below. The contention of the appellants on this score, therefore, is rejected. The finding of the Courts below that the respondent No. 1-plaintiff was the daughter of late Monia Sk. and had right, title and interest in the property left by late Monia Sk. is, therefore, upheld.
8. So far as the second contention is concerned, Mr. K. Sarma, learned Counsel for the appellants, submitted that the preliminary decree for partition was not tenable in law as it was not in terms of Order 20, Rule 18 of the Civil P.C. Order 20, Rule 18 is quoted below :
” 18. Decree in suit for partition of property or separate possession of a share therein –where the Court passes a decree for the partition of the property or for the separate possession of a share therein, then, —
(1) if and insofar as the decree related to an estate assessed to the payment of revenue to the Government, the decree shall declare the rights of the several parties interested in the property, but shall direct such partition or separation to be made by the Collector, or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with such declaration and with the provisions of Section 54,
(2) if and insofar as such decree relates to any other immoveable property or to move-able property, the Court may, if the partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree declaring the rights of the several parties interested in the property and giving such further directions as may be required;”
9. From a perusal of the aforesaid Rule, it is clear that in a partition suit by one co-sharer, the Court has to pass a preliminary decree declaring the rights of the several parties interested in the property. It cannot pass a decree for the plaintiff’s share only. In the instant case, there were four sharers other than the plaintiff, who were entitled to a share in the property. Two of them were brothers and other two sisters of the plaintiff. From the judgment and decree in the instant case, it appears that the trial Court in the suit for partition gave a decree only for the plaintiff. He did not consider the shares of other heirs of late Monia Sk. who were interested in the property. Such order is not tenable in law in view of the clear provisions of Order 20, Rule 18 of the Civil P.C.
10. Besides, in the instant case the suit property is a plot of land on which a house is constructed. In case of such a property, it is difficult to declare right of any one party in one-seventh portion of the land without taking into account the house standing thereon.
11. In view of the aforesaid, the judgment and oder passed by the Courts below so far as Issue No. 4 is concerned is set aside. The matter is remanded back to the trial Court to decide the same afresh in terms of the provisions of Order 20, Rule 18 of the Civil P.C.
The appeal is allowed to the extent indicated above. Parties to bear their own costs.