In a partition suit, the rights and share of the defendants who do not contest the suit and do not desire their rights to be declared in the preliminary decree cannot be partitioned and allotted separately unless the preliminary decree is modified declaring their rights and share either on appeal or on review of the preliminary decree.

( 1 ) THIS revisional application under Section 115, C. P. C. is directed against the order No. 105 passed on December 3, 1970 in Title Suit No. 53 of 1962 and it arises out of an application by the defendants Nos. 4, 5, 7 and 9 praying for directing the Commissioner for partition and separate allotment of their 1/4th share in respect of the suit property.

( 2 ) THE opposite parties Nos. 1 to 4 as plaintiffs instituted the above suit for partition of their 4/5th share by metes and bounds out of l/4th share of Rameswar Panda alleging inter alia that the suit property originally belonged to one Tara Prosad Panda, a Hindu governed by Mitakshara School of Hindu Law who died leaving four sons namely Moheswar, Sarbeswar, Rameswar and Satyeswar each having l/4th share in the suit property. In the said suit all the other co-sharers have been impleaded as defendants Nos. 1 to 14 and the State of West Bengal has been impleaded as defendant No. 15. The defendant No. 15 alone contested the said suit on filing a written statement and the other defendants did not contest the said suit. The suit was dismissed by trial Court. Against the said judgment and decree the plaintiffs opposite parties 1 to 4 preferred Title Appeal No. 335 of 1963 which was allowed on contest with cost against the respondent No. 15, the State of West Bengal and ex parte against the other defendants and a preliminary decree declaring the plaintiff's 4/5th share out of l/4th share of Rameswar in the suit property was passed.

( 3 ) THEREAFTER, on the application of the plaintiffs a Commissioner has been appointed for effecting partition of the suit property by metes and bounds according to the preliminary decree. The Commissioner, it appears, has submitted his report.

( 4 ) IN the meantime an application has been filed in the said suit by the defendants 4, 5, 7 and 9 who did not contest the suit till the passing of the preliminary decree for a direction upon the Commissioner for partition and separate allotment of their share in respect of the suit property by metes and bounds.

( 5 ) ON December 3, 1970, the learned Subordinate Judge, Midnapore, by order No. 105 held that the rights and share of the said defendants had not been declared in the preliminary decree and as such they were prevented from agitating the matter by way of an ordinary petition as the present one was at such subsequent stage of the suit. The application was, therefore, rejected.

( 6 ) IT is against this order this revisional application has been moved and the instant Rule has been obtained. There has been an order for stay of all further proceedings of the said suit pending the disposal of the Rule.

( 7 ) MR. Bhupendra Kumar Panda, appearing on behalf of the petitioners, submits that the impugned order is wholly illegal and without jurisdiction in as much as in a partition suit every defendant may be treated as a plaintiff and the rejection of the application will unnecessarily drive the petitioners to file another suit for partition and separate allotment of their share. He also contended that the share of the petitioners being admitted as evident from paras. 3 and 5 of the plaint the learned Subordinate Judge ought to have allowed the same even though the share of the petitioners has not been declared in the preliminary decree. To the said submission Mr. Himadri Shankar Majumder, learned Advocate for the opposite parties joined issue.

( 8 ) IT appears that the petitioners who are defendants 4, 5, 7 and 9 in the suit did not contest the suit till the passing of the preliminary decree and their rights and share in the suit property has not been declared in the preliminary decree. Inder the provisions of Order 20, Rule 18, Sub-rule (2) the Court though may pass a preliminary decree declaring the rights of the several parties in the suit property in a partition suit but generally the court declares the rights of the plaintiff and of those defendants who contest in the suit and des