The court cannot include a property for partition in a suit which was not included in the plaint, even if the property is a joint family property and has become liable for partition.

1. This application in revision is by some of the defendants in a partition suit. In 1941 the petitioners and opposite party Nos. 1 and 2 filed Title Partition Suit No. 23 of 1941 at Gaya, against the Raja Bahadur and the Rani of Amawan Estate and others, for division of the joint family properties. One of the properties in the suit was a house at Rajgir, Raja Bahadur Harihar Prasad Narayan Singh, the owner of Amawan Raj, had five sons, Raghubansmani Prasad Narayan Singh, Raghavendra Prasad Narayan Singh, Awadhendra Prasad Narayan Singh, Kaushalendra Prasad Narayan Singh and Awadheshwari Prasad Narayan Singh. The latter three are petitioners in this application and were plaintiffs in Title Partition Suit No. 23 of 1941, along with the other two, Raghubansmani Prasad Narayan Singh and Raghavendra Prasad Narayan Singh. The Raja Bahadur and his wife Rani Bhuvaneshwari Kuer were defendants along with some others. In that suit, the parties entered into a compromise and on 5-9-43 a decree in terms of the said compromise was passed. One of the terms of the compromise was that the plaintiffs, viz., the five sons, and the defendants, viz., the Raja Bahadur and the Rani Sahaba, will have equal shares in the said house at Rajgir, but it will not be partitioned by metes and bounds so long as the Raja Bahadur and the Rani Saheba remained alive. On the 19th Feb. 1951, the Raja Bahadur died. A few months later, i.e., on the 28th Sept, 1951, Rajkumar Raghubansmani Prasad Narayan Singh (opposite party No. 1) filed a partition suit at Patna which was registered as Title Partition Suit No. 90 of 1951. In this suit, he impleaded the Rani Saheba and his other four brothers as defendants. The petitioners, as stated above, are defendants Nos. 3 to 5 in the present suit.

2. The case of the plaintiff-opposite party No. 1 is that under the terms of the compromise a preliminary decree dated the 21st March, 1942, followed by a final decree dated the 5th Sept. 1943, was passed by the Subordinate Judge, III, Gaya, in the said Title Partition Suit No. 23 of 1941. According to the terms of the said compromise, the properties set out in Schedules 1 and 2 of the plaint in the present suit were left undivided, in which the plaintiffs share had been fixed as one-seventh. The Rajgir house was obviously not included in this suit because the Rani Saheba was still alive. The personal properties allotted to the late Raja Bahadur were described in Schs. 3 to 5, which were also sought to be partitioned. A preliminary decree was passed in the suit on the 12th Sept. 1958, and a pleader commissioner was appointed to divide the properties, who later submitted report on the 21st January, 1965. On the 16th Dec. 1967, the Rani Saheba also died, thus, making the Rajgir house divisible by metes and bounds between the brothers, as per decree in the earlier partition suit of 1941. On the 19th Sept. 1973, the learned Subordinate Judge II, Patna, ordered that the properties in the suit be partitioned amongst the brothers, each getting one-fifth share therein. This order, however, was passed by agreement of all the parties. On the 22nd Nov. 1973, the petitioners filed a petition before the court below for a direction to the pleader commissioner to include the Rajgir house also for partition and to the plaintiff to deposit the entire rent up to date in court, the plaintiff being in possession of the said house. The plaintiff-opposite party No. 1 objected. He admitted that the Rajgir house was a joint family property which had become liable for partition after the death of the Raja Bahadur and the Rani Saheba but since the same was not included in the plaint or in the preliminary decree of the present suit, such a direction could not be given to the pleader commissioner. The court below considered this matter and held that the Rajgir house could not be included for partition in the present suit. It is against this order that the petitioners have come up to this Court in revisi