(From previous issue)
20. Admittedly, Samadullah died leaving behind four sons and 2 daughters. The plaintiffappellants became co-sharers in the disputed jote left behind by Samadullah by purchase. Defendant Nos. l and 2 claimed that they also became owners in the disputed jote left behind by Samadullah by purchase and inheritance. The plaintiff-appellants claimed title to the disputed jote left behind by Samadullah without impleading the admitted co-sharers to the suit. While seeking declaration of title in an undivided jote, the plaintiffs should have prayed not only for declaration of title but also for partition as a consequential relief as envisaged in the proviso to section 42 of the Specific Relief Act. If declaration of title is allowed to the plaintiffs in the undivided jote left behind by Samadullah, the other co-sharers, who are not impleaded in the suit are likely to be affected. Admittedly, many co-sharers and successive co-sharers of Samadullah were not impleaded in the suit for declaration of title filed by the plaintiff-appellants. In a suit for partition, the share of each of co-sharer is determined and such determination is necessary so that at the time of calculation of shares, the share of none of co-sharers is affected or reduced. If declaration of title is allowed to the plaintiff-appellants in the absence of other co-sharers, the left out co-sharers are likely to be affected.
21. In this connection, reliance may be placed on the case of Enjaheruddin Mia alias Md Enjaheruddin Mia, (1998) 18 BLD (AD) 77 = 50 DLR (AD) 84 where it has been held as under:
“The proviso to section 42 of the Specific Relief Act, 1877 (Act 1 of 1877) provides that no court shall make any declaration as to the plaintiff’s legal character or his right to any property where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. So far as the instant case is concerned the plaintiffs could have asked for either joint possession or partition as a co-sharer of the defendants in the disputed land, but they did not take any such stand in the lower appellate Court or even before the High Court Division. In such view of the matter it will not, at all be fair to put blame either upon the lower appellate court or the High Court Division that they did not declare plaintiffs’ title to the part of the suit land.”
22. Reliance may also be placed on the case of Mrs Shabiha Khanam vs Jaitun Bibi@ Mrs Syed Moazzem Hossain being dead her heirs: Syed Nurul Hasan, (1998) 3 MLR (AD) 15 = 3 BLC (AD) 175 where it has been held as under:
It must however be said that in the absence of any evidence of partition of CS plot No. 42 the plaintiff-petitioner is not without right and title to his portion of purchased land. Admittedly his purchase is through a co-sharer. But he cannot claim declaration of title simpliciter unless he claims a partition for determining the respective shares of the four brothers in CS plot No. 42 and thereafter his own share of 0.13 acres therein. Hence although the suit has ultimately been dismissed the issue is still open and the plaintiff is free to agitate the. question of his title and entitlement to specific portion of 0.13 acres from CS plot No.42 in a properly framed partition suit.”
23. Reliance may also be placed on the case of Tayeb Ali vs Abdul Khaleque, 43 DLR (AD) 87 where it has been held that the suit being one for declaration of title to an unspecified share of an undivided plot of land is not maintainable without prayer for partition.
24. The principle expounded in the cases is that in the absence of partition of the undivided jote the plaintiff cannot pray for simple declaration of title without praying for partition by impleading all the co-sharers. The plaintiff appellants in the case in hand could have asked for joint possession in the disputed undivided jote left behind by Samadullah but they omitted to do so at any stage of the suit. Thus they are not entitled to declaration of title within specific boundary in the undivided jote left behind by Samadullah in the absence of left out co-sharers.
25. The plaintiffs without impleading all the heirs of Samadullah prayed for declaration of title in the undivided jote left behind by Samadullah. The plaintiffs should have prayed for not only declaration of title but also for partition impleading all the co-sharers of Samadullah. The appellate Court was, however, justified in decreeing the suit in part holding that since the plaintiffs were not impleaded in previously filed Title Suit No. 30 of 1998 for partition, they were not bound by that decree. The appellate Court was perfectly justified in giving the above declaration. The plaintiff-appellants are, however, entitled to file a properly framed suit if so advised and the question of limitation will not stand on the way.
In the light of the findings made before, we do not find any substance in this appeal. Accordingly, this appeal is dismissed without any order as to costs.
(Concluded)
