Judgment:
Susanta Chatterji, J.
1. The present First Appeal of the year 1979 is at the isntance of defendant No. 1 in a suit for partition. Plaintiff-respondent No. 1 filed title suit No. 7 of 1978-1 in the Court of the Subordinate 'Judge at Anandpur seeking partition of her undivided 1/8th share in the suit property. The suit was contested by the defendants and ultimately the trial court decreed the suit in the preliminary form in part on contest against defendants 1,9,11,12, 13 and 15 and ex parte against other defendants. The share of the plaintiff was determined as 1/12th and there was a direction to the civil court commissioner to effect partition by metes and bounds except the dwelling house. The learned trial Judge in deciding the suit for partition framed issues, namely : --
'1. Is the suit maintainable?
2. Is there any cause of action?
3. Is the suit barred by law of limitation?
4. Is the suit bad for misjoinder of parties?
5. Is the plaintiff entitled to any share?
6. Is the share claimed by the plaintiff excessive?
7. To what relief, if any, is the plaintiff entitled?
8. Is defendant No. 15's father Karuna the adopted son of Mari Sahu, D-l?
9. Is D-9 the adopted son of Pany Sahu of Soilong?
10. Has defendant No. 14 been given away in adoption in another family?
11. Is defendant No. 14 entitled to any share in suit properties?'
2. The learned trial Judge has answered the issues and in particular deciding issue No. 8 has held inter alia that the factum of adoption as claimed by defendant No. 15 has well been proved and there is implied admission as to such adoption by defendant No. 1. The other issues have also been considered and by a reasoned judgment the suit has been decreed in the preliminary form.
3. Being aggrieved by and dissatisfied with the aforesaid preliminary decree, defendant No. 1 has preferred the present First Appeal. The learned advocate appearing for defendant-appellant No. 1 has raised a short but interesting point, inasmuch as the learned trial court in deciding the suit for partition and decreeing the same in preliminary form has decided the dispute between defendants 1 and 15 inter se which is neither relevant nor permissible in law. He has developed his argument by drawing attention of the Court to the decision reported in AIR 1953 Hyd 170 (Lakshmamma v. Someswar Rao and another). In para 24 of the said decision, a Division Bench of Hyderabad High Court has observed inter alia that it had to consider whether it was necessary to frame an issue regarding the fact of the adoption of defendant No. 1 and the gift deed and the will. These questions were not pertinent or relevant to the adjudication of the plaintiffs claim. In that case, admittedly defendant No. 1 was in possession of the property. If the plaintiff established her claim, she would be entitled to the possession of the property. The question whether defendant No. 1 was the adopted son or did not become material and it was not necessary for the adjudication of the plaintiffs claim, Those were questions 'inter se' between the defendants. The introduction of the said question and the framing of the issues regarding them, would in the opinion of the Court, complicate matters and raise controversies which did not arise for decision in that case.
4. Getting inspiration from the aforesaid observations of the Division Bench in AIR 1953 Hyd 17.0 (supra) argument is made that in the present case such a question as to dispute between defendants 1 and 15 was neither relevant nor pertinent and the decision of the trial Court with regard to issue No. 8 is bad in law. Framing of the issue itself was not necessary and adjudication thereof has unnecessarily complicated the issue. Attention is further drawn to another decision reported in AIR 1958 Mad 496 (P. R. M. K. Muhammad Abdul Rahiman Mara-kayar v. Peer Muhammad). In the said decision it was observed that undoubtedly it is true that in a suit for partition properly so-called, the shares of the several parties should be ascertained, a preliminary decree declaring their shares should be passed and a final decree effecting a division should be made. By referring to a decision reported in AIR 1940 All 399(A) (Noor Mohammad v. Zaimul Abdin), it was recorded by the learned single Judge:
'It is necessary for me to draw attention once again to the fact that this is a partition suit. There is no mystery about a partition suit. It is simply a suit in which persons who are jointly entitled to an undivided property set in motion the processes of the Court to obtain a division of it in severally among themselves.'
It was further held that the said suit did not properly fall within the definition of the expression 'partition suit. 'That was not a suit by a person whose title to a share in some, at any rate, of the plaint properties is admitted and whose share in such properties has to be separated in order that such separate share might be put in his possession. It was found in that case that where both sets of defendants wound up their written statements with the prayer that the plaintiffs suit should be dismissed and did not ask for a determination of their own shares, the trial Court acted with material irregularity in the exercise of its jurisdiction in framing an issue necessitating the determination of the dispute which appear to exist inter se as between the defendants.
5. It is thus argued before this Court that in the present case neither defendant No. I had asked for determination of his share in the suit for partition brought at the instance of plaintiff-respondent No. 1. The dispute by defendant No. 15 is as regards adoption. Besides, defendant No. 15 has not claimed any independent right nor his claim can be entertained unless defendant No. t claims for partition. In this context, framing of issue No, 8 and/or adjudication thereof to determine the question of adoption by defendant No. 15 of defendant No. 1 is neither necessary nor pertinent, nor called for.
6. The learned advocate for plaintiff-respondent No. 1 in supporting the judgment of the learned trial Court has submitted inter alia that dehors such adjudication of issue No. 8 and notwithstanding the dispute between defendants 1 and 15, there is no bar as to maintainability of the suit by the plaintiff as framed nor any exception is taken as to the judgment of the trial Court decreeing the suit in preliminary form. It is well settled before this Court that the plaintiff does not take any exception to the 1/ 12th share as determined by the learned trial Court and the learned advocate for him supports the judgment so far as the rights of plaintiff-respondent No. 1 is concerned. The learned lawyer for defendant No, 15 seeks adjournment of the case. There is no earthly reason to delay the matter which is pending since 1979. On perusal of the pleadings of the parties and after going through the judgment of the learned Court below and considering the submissions on behalf of defendant No. 1 and defendant No. 15 this Court is of the view that in a suit for partition the position of plaintiff and defendant is the same. In a suit for partition either the plaintiff or the defendant can ask for declaration of the respective shares of the parties in proper perspective. There may be more than one preliminary decree in a suit for partition. But regard being had to the materials on record, It is found that in the present case the plaintiff has prayed for a preliminary decree to the extent of his 1 / 8th share. It is stated that as a female heir, claim is made to the properties other than the residential house. The finding of the trial Court has neither been challenged by the plaintiff-respondent No. 1 nor defendants 1 and 15. All their grievances are focussed at the adjudication made by the trial Court so far as issue No. 8 is concerned. If neither defendant No. 1 nor defendant No. 15, nor any other defendant take exception to declaration of any share, there is no necessity for this Court to consider any other issue which may be incidentally required to be gone into. The claim and / or counter-claim, as regards the issue of adoption of defendant No. 1 and defendant No. 15, is neither relevant nor pertinent so far as the claim for partition by the plaintiff is concerned. If there is no claim for partition or declaration of the share of defendant No. 1 it is not appreciated by this Court why suo motu the trial Court would decide in the suit the dispute between defendant No. 1 and defendant No. 15, There is sufficient force in the submission of the learned advocate for defendant No. 1 in this regard. This submission on behalf of defendant No. 1 is neither refuted by the learned advocate for respondent No. I nor controverted on behalf of defendant No. 15 also. If any time in future such dispute arises, certainly it would be open to the parties to raise such issue and the same shall be decided by the Court in proper way. All that this Court observes in the present context that in this suit for partition, framing of issue No. 8 was unwarranted. If such decision was not relevant, the decision made was neither comprehensive nor proper and the exception taken by defendant No. 1 appellant is well justified.
7. For the foregoing reasons, the appeal isallowed to the extent that the judgment of thetrial Court so far as issue No. 8 is concerned is set aside. With such modification the judgment of the trial Court is sustained. There will be order as to costs.