A counterclaim in a partition suit is to be construed as a plaint, and the plaintiffs have the right to contest it. The court is required to fix a time for the plaintiffs to file a written statement in response to a counterclaim.

P.K.Deb, J.

1. This appeal has been preferred against the judgment and decree dated 9th August, 1983 passed by the IVth Additional Subordinate Judge, Ranch! in Partition Suit No. 13/17 of 1978-82 by which the respondent Nos. 1 (a) to 1 (d) 5 counter claim has been allowed ex parte while dismissing the plaintiffs-appellants suit for partition.

2. A short point is involved in this First Appeal. Plaintiffs filed the suit being Partition Suit No. 13/17 of 1978-82 for getting partition of their 14 Annas Share in the Municipal Survey Plot No. 1701 having Municipal Holding No. 825 New and 1255 old situated in Ward No. III within the Ranchi Municipality. The description of the property in detail were given in the Schedule B of the plaint. In the plaint, the title of the plaintiffs added with their predecessor has been traced out. I am not going into those matters of tracing out of title etc. as the matter is only in respect of counter claim being allowed by the impugned judgment.

3. The respondents 1(a) to 1(d) were the heirs of original defendant No. 1. They contested the suit by filing written statement denying the title of the plaintiffs over the suit land as contained in Schedule-B of the plaint. On denial of the same they have also set up a counter claim in respect of their three annas and odd share in respect of the property mentioned in Appendix I to the written statement. In the Appendix of the written statement, properties have been described by boundary alone without the specifications of the holding number etc. But, it appears that Appendix I property is different from the property for which partition have been sought for as per Schedule B of the plaint by the plaintiffs. The suit proceeded and different witnesses from the side of the plaintiffs and defendants were being examined. At the time of examination of DW-10, the learned Counsel for the plaintiffs in the lower Court wanted to put question on the counter claim as made in the written statement but the same was disallowed by the leaned Subordinate Judge and passed an order on 29.8.1980 in which it was stated that as the plaintiffs failed to file any written statement on the counter claim made by the defendants, the plaintiffs have got no right to challenges the counter claim. Against that order dated 29.8.1980, the plaintiffs came over before this Court in Civil Revision being Civil Revision No. 432 of 1980 (R) but ultimately that Civil Revision was allowed to be with drawn with the following observation-

Learned Counsel for the petitioner wants to withdraw this petition. Prayer is allowed. The application is dismissed as withdrawn with the observation that in the event if judgment goes against the petitioner-plaintiff with regard to those property which defendant-opposite party have asserted in their written statement to be joint, the petitioner will be entitled to challenge the impugned order in the appellant Court if they prefer any appeal against the Judgment.

4. It appears from the impugned judgment and also from the order-sheet of the Court below that the plaintiffs did not pursue their suit henceforth and contesting defendants had adduced evidence in support of their claims made in the written statement and those evidence were recorded ex parte and on the basis of that ex parte evidence by the impugned judgment and decree the learned Court below has allowed the defendants counter claim and dismissed the plaintiffs suit for partition.

5. In the appeal regarding dismissal of the plaintiffs suit regarding partition had not been challenged. Only challenge is in respect of allowance of counter claim ex-parte. With regard to the prayer for partition of the plaintiffs, it is submitted that when the plaintiffs had not pursued their suit for partition, it ought to have been dismissed for non-prosecution and not on merit and practically on merit also the plaintiffs partition suit had also been decided.

6. It appears that when the defendant had put a claim of three