H.N. Seth, J. - (1.) THIS is a Plaintiff's second appeal. He brought a suit for partition of trees standing on grove No. 217 A, 217B and 217 area 3.34 acres. The Plaintiff claimed 192/334 share in the trees. The Defendant contested the suit inter alia on the ground that a suit for partition of the trees alone is not maintainable. The learned Munsif held that the suit for partition of the 'trees alone was maintainable and that the Plaintiff had 175.8/334 share in the trees in dispute. It decreed the Plaintiff's suit for partition accordingly. Plaintiff accepted the decree passed by the trial court, but the Defendant feeling dissatisfied went up in appeal before the, lower appellate court. The share of the Plaintiff as determined by the trial court was not disputed by either of the two parties. Lower appellate court, however, came to the conclusion that although there was no specific bar in seeking partition of the trees alone, the Plaintiff's suit for partition would be bad because he sought partial partition of the properties belonging to the parties. It also held that mere partitioning the trees would lead to several complications. Lower appellate court therefore allowed the appeal and dismissed the Plaintiff's suit for partition of trees.
(2.) LEARNED Counsel for the Appellant urged that after coming to the conclusion that there was no specific bar in seeking partition of the trees alone the court below was not justified in dismissing the suit on the ground of partial partition. He contended that it is only the principle of Hindu law, under which, unless a joint owner includes all the properties in a suit for partition, the same cannot be decreed. He contends that this principle has no application to the partition of agricultural property which is not governed by the principles of Hindu Law. Learned Counsel for the Respondent however contends that the grove forms one unit of property and it is not possible to seek partition of its components alone; suit for partition of a grove lies in revenue court only and the civil court has no jurisdiction to entertain it. He therefore supports the decree passed by the lower appellate court, not on the ground that the suit is barred as being for partial partition, but on the ground that a grove is not capable of partition in such a manner that the trees alone may be divided without dividing the land underneath it. He contended that considering the nature of property, the property sought to be partitioned i.e. trees, becomes importable and Plaintiff's suit therefore cannot be decreed.
(3.) IN my opinion the argument raised on behalf of the Respondent has force. In the case of Hemadra Nath Khan v. Ramani Kanti Roy, ILR 24 Cal. 575 a Full Bench of the Calcutta High Court observed: I am of opinion that the question ought to be answered in the affirmative. As a general rule every joint owner of property should be held entitled to obtain partition, or in other words, to be placed in a position to enjoy his own right separately and without interruption or interference by his cosharer.... The general rule must therefore be taken subject to many exceptions and qualifications depending upon the nature of the thing owned jointly, the nature of the interest of the party claiming partition, the nature of the terms and condition on which the different joint owners held their respective interests and various other matters. But I do not see any good and sufficient reason for thinking that the present case should form any exception to the rule. It is not suggested that the property sought to be divided in this case is either impartible or is from its nature such that the partition asked for will impair the value of any of the shares into which it is to be divided.;