N. C. MUKHERJI, S. M. GUHA

( 1 ) THIS is an appeal by the plaintiff whose suit for partition was decreed in preliminary form against the defendants including proforma defendant No. 3 by the learned Subordinate Judge, Asansol. On appeal by pro-forma defendant No. 3 judgment of the trial court was modified and the suit against pro-forma defendant No. 3 was dismissed.

( 2 ) PROPERTIES in suit devolved on Keshudiram, Kunja and Mukunda. Plaintiff was the daughter and heir of Keshudiram and defendant No. 2 was the daughter and heir of Kunja. Defendant No. 1 was the widow and heir of Mukunda. So the plaintiff and defendants 1 and 2 became owners of the suit properties and had been in possession jointly.

( 3 ) PRO-FORMA defendant was made a party, as he was alleged to have manufactured certain papers in respect of the suit properties in collusion with the husband of defendant No. 1.

( 4 ) THE defendant No. 3 contested the suit by asserting his own title to the suit properties.

( 5 ) THE learned trial Judge overruled the defence contention and decreed the suit ex parte against defendant Nos. 1 and 2 and on contest against pro-forma defendant No. 3.

( 6 ) THE learned Additional District Judge in appeal held that pro-forma defendant No. 3 was not a necessary party in a suit for partition simpliciter. Though he claimed independent title in the property the allegations in the plaint did not warrant a finding against him or his being impleaded as a party. On the allegations as made in the plaint a suit for partition pure and simple could not be converted into a suit for declaration of title against him. The plaint also did not disclose any cause of action against him.

( 7 ) IT was further observed that the controversy between the parties could very well be reagitated in a regular title suit.

( 8 ) MR. S. C. Mitter, the learned Advocate for the appellant contends that the defence taken by the defendant No. 3 had been negatived by the trial court and the first Appellant Court should have maintained that order by holding that he was a proper party, if not a necessary party. It is further contended that the suit for partition and a decree passed thereon was a declaration of the respective shares of the parties owning the disputed property and assertion of such share by defendant No. 3 having been negatived by the trial court, the learned Appellate Court should have affirmed that finding.

( 9 ) IN support of his arguments Mr. Mitter refers of the judgment of this Court in the case of (1) Kanailal Das v. Jiban Kanai Das reported in AIR 1977 Cal 189. In this case the plaintiff prayed for declaration that his mother Sidheswari was merely a benamder in respect of suit properties and the Deed of 7th October, 1967 was not binding on him. Thus claiming one third share he filed the suit for partition of his share by metes and bounds.

( 10 ) IT is held by their Lordship that I such case the party who would be otherwise interested in the property in case Sidheswari be found to have a share in such property is a necessary party in the partition suit on declaration. Similar is the case when a stranger also claims to be interested in the property in suit on the basis of document impugned by the plaintiff is not binding on him.

( 11 ) NEXT, Mr. Mitter cites the decision in the case of (2) Smt. Siba Rani Devi v. Ramendra Nath Mukherjee reported in (1962) 66 CWN 828. It is held therein that a suit which otherwise satisfies the requirements of Clause (va) of Sch. 11, Article 17 of the Court-fees Act, would not go out of the purview of that clause, merely, because the plaintiff joins as a defendant a stranger, for enforcing, in his presence, the right to the share in the suit properties, claimed by the plaintiff, even if the determination of the questions, whether the suit properties are joint properties and whether the plaintiff has a right to share therein, involves the construction of some documents in respect of the suit properties, or any of them,

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