A suit for partition of joint property is maintainable only if the property has not been partitioned earlier.

Narayan, J.

1. This appeal arises out of a suit for PARTITION. The plaintiffs sought the parti-lion of their eight annas proprietary share in village Tilakpura, bearing tauzi No. 1053, this proprietary share having been held by them since the year 1874. It was stated by the plaintiffs that the lands of the village are still joint and that the proprietors had been cultivating the bakasht lands according to convenience in cultivation and that they had been making collections of rent according to their respective shares.

2. The suit was contested by some of the defendants on two pleas; firstly, that the suit was bad on account of misjoinder and nonjoinder of parties, and, secondly, that all the lands of the mauza had been divided between the different co-sharers who were separately cultivating the lands allotted to them.

3. The learned Subordinate Judge decreed the suit after repelling the contentions put forward by the defendants and the defendants have, therefore, preferred this first appeal.

4. The defendants are the descendants of two brothers named Jagdeo Missir and Baldeo Missir who had jointly purchased this village. On 25-3-1873 the said Baldeo Missir and Jagdeo Missir executed a deed of partition by which, they divided the mauza and two blocks were made out of it. The western block was allotted to Jagdeo and the eastern block to Baldeo. Soon after this partiton, that is in the year 1874, Jagdeo and Baldeo transferred to the plaintiffs by two separate sale-deeds four annas out of their separate eight annas share, and the recitals in these two sale-deeds go to show that they were in separate possession of the block allotted to them under the deed of partition. Though the partition of the year 1873 is not mentioned in the plaint and the plaintiffs appear to have framed their plaint in a manner which indicates that they were claiming partition of eight annas share in the entire tauzi, the partition of the year 1873 was not disputed by the plaintiffs at the trial, and when it was contended before the learned Subordinate Judge that this suit was not maintainable because the plaintiffs had, instead of claiming partition of the two pattis, separately, brought one partition suit for the entire mauza, the learned Subordinate Judge disposed of this contention by making the following observation :

"The survey record of Khewat Nos. 1/1 and 1/2 having been prepared in accordance with the partition deed (Ext F) and the plaintiffs having admittedly purchased four annas share in each patti by the two kebalas (Exts. 2 & 2 (a)) and there being no dispute between the parties on these points, it matters little whether the plaintiffs state these facts in detail in the plaint or whether they claim that they have purchased eight annas share in the whole village for which they are entitled to get a separate takhta of their eight annas share."

The learned Advocate-General, who has appeared on behalf of the plaintiffs-respondents before us, has also conceded that the plaintiffs will have the partition of their four annas pokhta share, equivalent to eight annas kham share, in each of the two blocks instead of having one partition of eight annas share in the entire tauzi. Separate khewats and khatians have been prepared with regard to the pattis which had been, formed under the partition deed, and it will appear from a perusal of the entries in the survey record-of-rights that the lands of one patti have no connection with the lands of the other patti. Khewat No. 1/1 is the khewat with regard to the patti of Jagdeo Missir and khewat No. 1/2 is the khewat with regard to the patti of Baldeo Missir. There is. however, a shamilat khewat (No. 1/3) of these two khewats, and the lands of this shamilat khewat will have to be partitioned in this partition suit if the suit can be decreed.

It is, thus, an incontrovertible position in this case that if the plaintiffs will have any decree, that will be a decree for the partition of their ejght annas shar