The legal principle established is that a suit for partial partition may be allowed under certain circumstances, and the non-joinder of necessary parties under Order I Rule 3 C.P.C. is crucial in determining the completeness of the proceedings.

JUDGMENT :

Heard Mr. Kamal Nayan Chaubey, the learned Senior Counsel appearing on behalf of appellants.

2. The appellants have filed this second appeal against the judgment and decree of affirmation dismissing the suit for partition on the ground that in this case partial partition is not possible and there is non-joinder of necessary parties.

3. Plaintiffs filed Title Partition Suit No. 94/84 before the Court of Sub-Judge, Bagaha for partition of lands of Schedule Nos. 2 and 3 of the plaint and with prayer that their share to the extent of 5/30 be carved out from the said land claiming that land and house of Schedule-3 properties are their ancestral property and land and house of Schedule-2 property was purchased in the name of defendant no.3 alone by their common ancestor which has been coming in joint possession and there is no partition among them by metes and bounds in respect of the properties mentioned in Schedule Nos. 2 and 3 of the plaint. Their further case is that all agricultural lands, which were in their joint possession, have been partitioned by compromise decree passed in Title Suit No. 87/53. The case of the contesting defendants is that land and house of Schedule-3 were ancestral and joint properties, but the same were partitioned among the parties as per their convenience prior to compromise decree in T.S. No. 87/53 but land and house of Schedule-2 are not joint family properties but the same are their self-acquired properties purchased after compromise decree in T.S. No. 87/53 and the same were never joint properties.

4. The Trial Court dismissed the suit on the ground that there was non-joinder of necessary parties and the plaintiffs have not Scheduled all the properties of joint family and it is not possible to determine in what manner the share of land and house be distributed between the parties, accordingly, partial partition is not possible. The Trial Court held that suit properties mentioned in Schedule-2 and 3 are joint properties.

5. The Appellate Court below on reappraisal of evidence affirmed the finding of the Trial Court that suit suffers from non-joinder of necessary parties as well as non-mentioning of all properties in plaint, the suit suffers from the defect of partial partition and dismissed the appeal by the impugned judgment and decree. The Appellate Court, however, given finding that properties mentioned in Second Schedule is not joint properties rather it is separate property of defendant no.3/respondent no.1 and his descendant.

6. Learned Senior Counsel for the appellants has submitted that the finding of the both Court below that there was non-joinder of necessary parties and partial partition is not possible could not have been recorded. It has been submitted that partial partition is possible in law which is not appreciated by both the Courts below and the Appellate Court has wrongly given finding in favour of defendant no.3/respondent no.1 and finding in this regard was not warranted.

7. The principle that there cannot be a partial partition is not an absolute one. Ordinarily a suit for partial partition does not lie. But, a suit for partial partition will lie when the portion omitted is not in possession of Coparceners and may consequently be deemed not to be really available for partition. This case does not come under this category.

8. Order I Rule 3 C.P.C. speaks about the persons who may be made as defendants. A proper party is one whose presence is necessary for a complete and final decision on the question involved in the proceedings. The object of the Rule is to bring on record all the persons who are parties to the disputes relating to the subject matter so that dispute may be determined in their presence at the same time without any protraction, inconvenience and the multiplicity of the proceeding may be avoided. In this case both the Courts below found that many necessary parties were not made party.

9. After considering the submission of the learned Senior Counsel for appellant