-:RULINGS ABOUT PARTITION SUIT OF EJMALI PROPERTY:-

1. A complicated question of title is involved in the suit which can not be settled
in a simple suit for partition without claiming declaration of title.
[Jotirmoy Dutta.......Vs......Dilip Ranjan Dutta. 16 B.L.T (2008) HCD 446]

2. The trail court & the court of Appeal held the present suit is a simple suit for
declaration of title in respect of 10.47 acres of land out of 13.14 acres of land is not
maintainable, as from the evidence of PWS, it is clear that the suit land is Ejmali
property and without a prayer for partition, the suit is barred by s. 42 of S.R Act.
[Abdul Quddus Matbar....Vs.....Yousuf Ali Bayati. 17 BLT (2007) AD 45]

3. Possession of one co-sharer is the possessions of all-not confer any title by adverse
possession- Record in the name of one co-sharer not raises inference of exclusive
possession.
[ 14 BLC (2009) AD 29, 14 MLR (2009) AD 10, 3 exfile plus (2010) AD 2]

4. Suit for partition & allotment of shaham. Purchaser having purchased land in
excess of share of his vendor is not entitled to get shaham.
[Abdul Ali Bhuiyan....Vs....Johora Khatun. 58 DLR (2006) AD 225, 11 MLR (2006) AD 143]

5. Suit for ejectment against trespasser-

Maintainable by one co-sharer without impleading other co-sharers. Co-sharer can
not, however get possession of land in excess of share- can have recourse to
partition suit for exclusive possession.
[Hossain Ali Mondal....Vs....Khoka Mulla. PLD 1964 (Dacca) 739]

6. Co-sharer’s exclusive possession- right to possess. Co-sharer in exclusive

possession of specific land- entitled to retain the same until partition.
If disposed by another co-sharer, he has got the right to recover possession of
the land he has disposed.
[Haradan Sen...Vs....Sunil Ch. Sarker. 14 BLC (2009) HCD 372 (Para-10).
Ref. Ahmed Miaji...Vs...Eakub Ali Munshi. 12 DLR 708.]

7. Partition Suit-s. 12 CPC- Bar to further Suit- or.7 r-11 and or r (a) 9 (1), s. 19 of
Limitation Act.
It is an admitted legal position that there is no limitation for a suit for partition and
unless there is a total ouster of the right of a co-sharer from the ejmali property he
shall be deemed to be in ejmali possession of the properties sought to be partition,
if not partition earlier by metes and bounds.
[ Harmuj Sikdar...Vs...Ayub Ali Sikdar. 61 DLR (2009) HCD 429.]
Maintainability hearing under or-7 r-11 in r/o barred by law and limitation to
be given first and not to be decided after taking evidence.

8. Partition family arrangement- Exclusive possession-

Purchaser entitled to be put in possession of the exclusive portion. When by private
arrangement amongst co-sharers, one of the is in exclusive possession of a certain
portion of the ejmali land, a purchaser of the right, title and interest of the
latter is entitled to be placed in the position as his vendor.

A person is not entitled to oust his co-sharer from a plot of land in exclusive
possession of the latter on the plea that he has got title to every inch of the
joint property. If he fells that his co-sharer is in possession of some lands in
excess of his share his remedy, lies in a suit for partition.

9. Partition Joint property:- Determination of the value of the suit- jurisdiction of

court- and court fee – when not in possession –advolarem court fee – forum of suit
and appeal.
 Partition suit- Plaintiff claiming joint possession in suit property and asking for a
separate share of his fixed court fee is payable but value of plaintiff’s share
determine the forum both of the suit and appeal.
If the object of the suit is partition the entire property, value of the entire property
will determine the forum of the suit and appeal.
[Khayertullah Mondal...Vs....Kamala Kanta Saha. 12 DLR (1960) 329.]

10. Co-sharer out of possession- remedy- suit for joint possession and may claim
menses profits.
[Elijan Bewar.....Vs..........a. Samad, 17 DLR (1965)- Dac- 563]

11. Partition- Co-sharer- Stranger purchaser- Joint Possession- One co-sharer

out of possession.
Every co-sharer is entitled to enjoy a joint property and if he enjoys to the
exclusion of the other co-sharer and in excess of his own sharer, he can not be
forcibly evicted from the joint land though he is liable to pay compensation for
use and occupation of the land in excess of his own share to the other co-
sharer. The remedy of the co-sharer not in actual possession is to bring a suit for
partition and get a decree for possession of his specific share on partition.

Remedy of a co-sharer out of possession of the joint property is by way of

partition, and he can get a decree for joint possession.
[Kutijan Bibi....Vs.....Zulmat Khan. 19 DLR (1967)-Dac-20.]

12. Necessary parties not impeded- decree in a partition suit- no court will pass such
infructous decree as it will run into jeopardy being not binding upon them.
[INFRACTION:- A breach, violation, or infringement; as of a law, a contract,
a right or duty. In French law, this term is used as a general designation of all
punishable actions.]
[C. Juri Talukdar...Vs....C. Magni, 40 DLR- 532.]

13. Partition SuitL- Land transferred during pendency of partition suit- hit by the
doctrine of lis pendense. [Section 52 of TP Act.]
[Wazed Ali....Vs.....Sudir Ch. Das, 20 DLR (1968)- 489.]

14. e›U‡bi †ÿ‡Î Amyweav `~i Kivi Rb¨ Av`vjZ Partition Act-2 aviv cÖ‡qvM Kwi‡Z cv‡ib| hLb
myweavRbK e›Ub `~iæn welq ZLb bvwjkx f~wg weµ‡qi Av‡`k w`‡Z cv‡ib| wbgv© KvR e›U‡bi †gvKÏgvq
GKRb kwiK`vi Zvnvi wbR `vwq‡Z¡ (At his risk) Zvnvi `L‡j _vKv f~wg‡Z wbgv©b KvR Kwi‡Z cvwi‡e|
hw` GB AskUzKz Ab¨ kix‡Ki fv‡M c‡o Z‡e wbgv©b `~ixf~Z Kwiqv Zvnv‡K `Lj †`Iqv hvB‡e|
[ Avjx Avnv¤§`...ebvg...‡iwRqv †eMg| 6 we.Gj.wW (nvB‡KvU©)-326]

15. Partial partition is maintainable (Question of Hotch Potch)-

Held:- Partial partition is maintainable and it will not fail for non inclusion of plot
No.-296, 297 & 300, since the plaintiff and the defendants claimed are confined
only to plot No.-298 & 299 and that they have no interest in plot No.-296, 297 &
300.
It may be noted that the defendants could not also show that for non inclusion of
said 3 plots the defendants or any of the parties in the suit will be prejudiced. Thus
I am of the opinion that the suit as framed is also maintainable.
[Most. Saleha Begum...Vs...Md. Mixanur Rahman. 18 BLT (2010)-HCD-123]
16. For partition and for recovery of khas possession in respect of the portion of the
suit land. Possession of the land of plot No.-1609 which is admitted by the
plaintiff.
[Md. Tamijuddin....Vs...Md. Mafizul Islam. 6 ADC (2009)-117]
17. Partition and Declaration- undivided and unspecified portion of land-
declaratory suit is not maintainable.
It appears from record that the suit being for declaration of title to unspecified
portion of an undivided plot of land is not maintainable without a prayer for
partition; that the plaintiff is found to be out of possession is supported by the
court’s findings on possession is supported by the evidence of records, the plaintiff
No.-3 and 4 has failed to show that they have any interest in the suit land.
[Jitendra Nath....Vs....Radakanta Sardar. 6 ADC (2009)-127]

18. Partition suit Sought for amendment in the form of declaration of title and also
made prayer that the deed is to be declared void.
It is not necessary to send it on remand as amendment can be allowed at any
stage.
[Ratan Sardar...Vs...Bishi Bapary. 7 ADC (2010)-789]

19. Partition and recovery of khas possession- Plaintiff admitted the possession of
limited possession of the defendant but his PWS admitted the possession of the
plaintiff- contradiction- lower court remarks that the plaintiffs possession proved
by PWs was serious miscarriage of justice.
[Md. Mafizul Islam..Vs....Md. Zashimuddin. 2 Exfile Plus (2009)AD 51]
20. Sister never possessed the land but inherited the land- Land possessed by
brothers- Word commissioner gave an award- alleged deed of gift forged and
fraudulent- suit is liable to be dismissed.
[Abu Yousuf....Vs...Hanif. 6 ADC (2009)-209]

21. Partition suit- Plaintiff- Declaratory suit.

Purchase through a co-sharer, but he can not claim declaration of title simplicitor
unless he claims partition for determining the respective shares of the 4 brothers in
C. S plot No.-42.
[Shahida Khanam...Vs...Jaitun Bibi. 3 MLR (AD) 15]

22. e›U‡bi †gvKÏgvq ev`x 13 kZ‡Ki Qvnvg Pvwnqv‡Qb| R.S Khatian wrongly recorded nIqvi
Kvi‡b ev`xi ¯^‡Z¡&i Dci Kvwjgv †jcb nBqv‡Q ewjqv `vex K‡ib| ¯^‡Z¡i `vex cÖwZôv bv Kwiqv e›U‡bi
Qvnvg cvB‡Z cv‡ibv| Av`vjZ Ab¨vb¨ kixKM‡bi Share we‡ePbvq bv Avbvq Ges Share ascertain bv
Kivq mwVK nq bvB|
[Jiban Chandra Sarkar...Vs...Md. Rafizuddin. 8 ADC (2011) 760]

23. Hotch Potch ( bad for defect of party).

The Plaintiff did not bring at all the properties and the schedule of
Hotch Potch. There are several parties in the jote jointly owning and
possessing the suit land but they were not made parties, as such the
suit is bad for defect of parties. There are tanks situated in khatian
nos. 202 and 291 and there are as many as 200 shares in those tanks
who were not made parties, Plaintiffs get 22. decimals of land but
the demands 44. decimals of land. This vital point of dispute can not
be resolved by a mere partition suit and to determine and resolve
this vital question of dispute the plaintiff must seek remedy in a
separate title suit.
[ 49 D.L.R (AD) 68.] [ Md. Sayed....Vs....Fozar Rahman, 29 B.L.D
(2009) HCD 457.] Case Ref:-Regarding Hotch Potch.
See-51 D.L.R (AD) 155, 47 D.L.R (AD) 511,
Regarding Defect of parties in partition suit:-
37 D.L.R (AD) 216.
24. Prior Partition onus of proof:-
In a suit for partition of joint family property where the defendant
pleads prior partition, the onus is on him to prove the alleged
partition.
[ Gooroo Prashad..Vs...Kalee Prashad, 5 WR 121. 28 J.C. 817.
[See:-SARKAR Evidence Act 4th Edition Sec-104 Page-661.]