A partition suit is non-maintainable if necessary parties, such as co-sharers, are not included, as effective decrees cannot be passed without their presence.

JUDGMENT :

(Narendra Kumar Vyas, J.)

1. This appeal has been preferred by the appellant/plaintiff under Section 100 of the Code of Civil Procedure, 1908 (hereinafterreferred to as the 'CPC') questioning the legality and propriety of the judgment and decree dated 04.11.2011 passed by the learned Additional District Judge, Sakti District Janjgir-Champa (C.G.) in Civil Appeal No.49-A/2010, whereby the first appellate Court has allowed the appeal filed by the respondent/ defendants and set aside the judgment and decree dated 26.07.2010 passed by the Civil Judge, Class-II, Malkharauda, District - Janjgir-Champa (C.G.) in Civil Suit No. 16-A/09 whereby the suit filed by the plaintiff has been decreed in her favour.

2. The parties to this appeal shall be referred to hereinafter as per their description in the civil suit.

3. This appeal was admitted by this Court on 05.02.2013 on the following substantial questions of law:-

(i) Whether the First Appellate Court was justified in reversing the judgment and decree passed by the trial Court, which decreed the plaintiff’s suit for declaration of plaintiff’s share in the suit property and also for partition and possession in respect of her share?

(ii) Whether the First Appellate Court was justified in dismissing the plaintiff’s suit by holding that since other co- sharers were not made the parties, therefore, the suit was dismissed for want of necessary parties ?

(iii) Whether on the facts found, the First Appellate Court was justified in dismissing the suit by allowing the defendant’ appeal?

4. Briefly stated the facts of the case are that

A. Plaintiff filed a suit for partition, declaration of title and possession of her share over land as described in Schedule "A" and Schedule "B" attached with the plaint situated at village – Kalmi, Tahsil – Malkharauda, District – Janjgir- Champa (hereinafter referred to as ‘the suit property’) contending that she and defendant No.-2 are brother and sister and defendant No.-1 Amrutlal is their father, they are Hindus of Sahu (Teli) caste and are governed by Mitakshara branch of Hindu law. Defendant No.-1 Amrutlal has five daughters and one son, namely Khikbai alias Rambai (plaintiff), Khirbai, Kapoorbai, Ramsagar (defendant No.-2), Ramkumari and Rameshwari respectively. The suit property mentioned in Schedule 'A' is ancestral property having registration in the name of plaintiff's father Amrutlal (defendant No.-1). The land described in Schedule 'B' is registered in the name of plaintiff's brother Ramsagar (defendant no.-2), which was purchased from time to time from the nucleus of ancestral property. As such, both the suit property described in Schedule 'A' and Schedule "B" are the ancestral property of the plaintiff and the defendants.

B. When the plaintiff demanded partition of the suit land from defendants No. 1 and 2 in December 2007, they assured the plaintiff that they would divide her share of the suit land and give it to her, but they did not divide the share. When the plaintiff again demanded partition of the suit land in May 2008, the defendants refused to give her share which has necessitated the plaintiff to file a suit claiming 1/7^th share of the suit property. Her sisters have not claimed partition for suit property.

5. Defendants No. 1 and 2 filed their joint reply, denying the allegation mainly contending that the suit land is not ancestral land, but it is the self-acquired property of defendants No. 1 and 2 as such the plaintiff has no right to claim her share over the suit property. It has been further contended that other sisters of the plaintiff are necessary parties in this case and in absence of necessary party the suit is not maintainable and would pray for dismissal of the suit.

6. The learned trial Court on the pleadings of the parties has framed as many as 7 issues. The issue numbers 1, 2 and 4 are relevant therefore, they are extracted below:-

1- D;k okni= ds lkFk layXu vulqwph & v es mYyf[kr Hkwfe izfroknh dz& 1 dh iSr`d Hkwfe gS \

2- D;