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Judgment
Das, J.—This appeal arises oat of a suit for partition instituted by the plaintiff-respondent. Sudarshan Ram Tewari, against the appellants The plaintiff on the 10th February 1914 obtained a conveyance from one Palta Kuer and her son Ram Surat Suktl. Palta Kuer, acsording to the case of the plaintiff, inherited the share which was of Ram Yad. According to the casa of the plaintiff Ram Yad was separate from the predecessors in-title of the defendants. The defendants resisted the Snit on the ground that Ram Yad was joint with their predecessors-in-title and that on Ram Yad''s death, the interest whish was of Ram Yad survived to them and did not vest in Palta Kuer, the predecessor-in-title of the plaintiff. The Courts below have concurrently held that Ram Yad was separate from the predecessors-in-title of the defendants, and that his share vested on his death in his widow, Sheo Tahla Kuer, and that on her death it vested in her daughter Palta Kuer. On this finding the plaintiff was entitled to a degree for partition if in fast he had obtained joint possession of the property on the execution of the conveyance in his favour by Palta Kuer and Ram Surat Sukul.
In this Court it has been igeniously argued by Mr, Shivesh war Dayal on behalf on the defendants appellants that Palta Kuer not being sited in the action as a defendant, the plaintiff is not entitled to a decree for partition. The argument of Mr, Shiveshwar Dayal is this: that upon the finding of the Court that Ram Yad was separate from the defendants'' predecessors-in-title, it is open now to Palta Kuer and to her son Ram Surat Sukul to institute a suit for partition as against them and he says that in order to prevent Palta Kuer and her son Ram Surat Sukul from harassing them, the Court should have insisted upon the plaintiff bringing Palta Kuer and her son in the record as parties defendants. I quite agree that Palta Kuer and Ram Surat Sukul would be proper parties to an action for partition, hut I. am not prepared to say that they were necessary parties to the action. In my opinion, the appellants would be entitled to succeed on this point only if it could be shown that on the judgments of the Courts below or on the admission of the plaintiff there was an interest which was outstanding in somebody else and was not represented in the action. Now, that is not the conclusion at which the Courts below have arrived. Their conclusion is that the interest of Palta Kuer has properly vested in the plaintiff; there is, therefore, no interest according to the decision of the Courts (sic)balow outstanding in any body who is not a party to the suit. The Courts cannot possibly prevent Palta Kuer from instituting a suit if she likes against the parties to the suit.
The only question which we have to decide is this: is Palta Kuer a necessary party to the suit? In my opinion she is not, and the argument of Mr. Shiveshwar Dayal on this point must fail.
It was then argued that the plaintiffs are not entitled to a decree for possession since the Court of first instance has come to the conclusion that Palta Kuer is in possession of some of the properties in suit. It has been argued that in order to succeed in a suit for partition there mast not only be the unity of title but that there must be unity of possession and that if, on the finding of the Court balow, the plaintiff is not in possession of the properties ha is not entitled to a decree for partition, Tint is true, bat still the plaintiff would be entitled to a decree for joint possession and for partition. That argument is really an argument on Court-fees and does not (sic)affest the merits of the case. If, indeed, Palta Knar h still in possession of the property, the plaintiff may have soma difficulty in enforcing the decree which he has obtained, but we have nothing to do with that question. The qusstion is one of technicality without any merit to recommend it.
I would dismiss this appeal with costs
, Coutts, J.
I agree.