A suit for partition is not maintainable where there is no joint possession of the entire property.

( 1 ) THIS appeal is by the defendant appellant against an appellate judgment and decree of reversal.

( 2 ) THE plaintiffs respondents filed a suit for partition of C. S. Plot No. 1356 measuring more or less 5 cottahs of land appertaining to Khatian No. 344 of Mouza Jainagore. This plot belonged to one Kedar Sadbukhan who sold in specific portions the entire plot by different registered documents of conveyance to the predecessors of plaintiffs Nos. 1 and 2 and to the respondent No. 3 and to the father of respondent No. 4 and the predecessors of the present appellant Labanyabala, the defendant No. 3 in the original suit. The case of the plaintiffs is that the defendants are co-sharers but as it was not possible to possess the property jointly partition of the property is necessary.

( 3 ) DEFENDANT No. 3 the present appellant who alone contested the suit filed a written statement denying all material allegations. Her specific case is that she purchased 3 cottahs 9 chittaks of land with defined boundaries but with the description in the conveyance that the land measured 2 cottahs. She has alleged that she has been in possession of 3 cottahs 9 chittaks of land for more than 12 years and constructed her house there. It is further alleged that the plaintiffs 1 and 2 previously brought a suit against her for encroachment of their land and under an award made by the Arbitrator appointed in this suit she paid a sum of Rupees 150/- for encroachment of half cottahs of land to the plaintiffs and the matter was finally closed. The suit for partition is not maintainable and in any event the plaintiffs were estopped from bringing any further suit against her. The defendant No. 1 the present respondent No. 3 also filed a written statement supporting virtually the plaintiffs. Subsequently after filing their written statements on their prayer they were added as co-plaintiffs.

( 4 ) THE trial Court dismissed the plaintiffs' suit, firstly, on the view that the lands were sold in specific portions to the parties or their predecessors with boundaries and there being no jointness of interest of the plaintiffs and the defendants in the entire area, thus sold, they were not co-sharers and the suit for partition was not maintainable and secondly that a decree having been passed on the basis of an award in the previous suit for encroachment brought by the plaintiffs Nos. I and 2 against the defendant No. 3 it was conclusively established that they were not co-sharers of the disputed property. On appeal by the plaintiffs Nos. 1 and 2 the appellate Court below took a different view of the matter and decreed the plaintiffs' suit for partition on the view that the disputed property was a joint property belonging to the parties in the suit. The correctness of this is now challenged before me in the present appeal.

( 5 ) IT is not disputed in this case that specific portions with defined areas and boundaries were sold by Kedar to different parties but in each of the Kobalas the share of Kedar representing each of these plots and that of the proportionate rent payable by each of the purchasers out of the total jama (rent) of Rs. 2-4/- per annum was also mentioned relating to 16 annas share of Kedar in the entire land. There is also no dispute that a suit was brought by the plaintiffs alleging encroachment of their land by the present appellant and in that suit Arbitrators were appointed who gave an award on a finding that there was encroachment by the present appellant to the extent of half cottahs of land and she was directed to pay Rs. 150/-representing the value of such land as already there has been structure erected by her and a decree was passed accordingly. Now the question is whether in spite of these facts the parties could be held to be co-sharers of the properties so that they can claim partition according to their respective shares in the entire property. The lower appellate court took the view that the decree passed on the awa