ORDER: The petitioners who are plaintiffs in a partition suit have come up in revision under S. 115 of the Code of Civil Procedure to canvass the correctness of the decision of the District Judge at Srinagar who, on appeal, remanded the suit to the trial court for fresh disposal in the light of the observations made by him in his judgment and according to law.

(2) The parties are Muslims governed by Mohammedan Law. The plaintiffs-petitioners brought the suit for partition in the court of the Munsiff at Srinagar alleging that they are entitled to certain specified shares in the suit property as heirs under the Mohammedan Law. The defendants who are the other heirs admitted that they and the plaintiffs .are entitled to the property in suit as co-heirs, but contended that the entire property available for partition was not shown in the plaint and that the suit was consequently incompetent, being one for partial partition. The defendants also specifically mentioned in their written statement the other property which the plaintiffs ought to have included in their plaint and which also ought to be partitioned between the parties.

(3) The trial court as well as the appellate court (District Court) went into the question whether the contention of the defendants that certain additional property is held by them and the plaintiffs as tenants in common is true or not. This they did in spite of the vigorous contention of the plaintiffs that the additional property alleged by the defendants to be available for partition in fact belonged exclusively to the plaintiffs and that the plaintiffs did not ask for partition or any other relief in respect of it. The District Court on the footing that the property described in the plaint did not exhaust the entire property held by the parties as tenants in common directed the plaintiffs to amend the plaint sq as to claim partition of the entire properties.

The plaintiffs who are aggrieved by this order came up in revision to this court and Ali J. set aside the order of the District Judge pointing out that the plaintiffs cannot be compelled to amend the plaint against their desire and that it is open to them to proceed with the plaint as it stood and take the legal consequences of adopting that course. The case was sent back to the District Judge for disposal in the light of that observation. The District Judge held that the suit was bad as one for partial partition and then referred to the observation of Ali J. and remanded the case to the trial court for disposal.

He has also remitted to the trial court an application which was filed before him by the second defendant asking to be transposed as a co-plaintiff so as to enable him to amend the plaint by bringing into it the additional property claimed by the defendants to be available for partition. This remand has aggrieved the plaintiffs who have now come up in revision to challenge its correctness.

(4) The only and entire basis of the decision of the learned District Judge appears to be that in his view a suit for partial partition is incompetent. He does not, therefore, seem to have seen his way to proceed with the suit when the plaintiffs have included in the plaint only a part of the entire property ^available for partition. At the same time he appears to have been really reluctant to dismiss the suit when the plaintiffs expressed their stubborn unwillingness to show in the plaint any further item of property as liable to partition.

(5) It seems to be obvious that if the court below had not thought that the suit was bad as being one for partial partition it would have adopted quite a different course in dealing with the appeal.

(6) The main question that falls for consideration, therefore, is whether their is substance in the contention that the suit as framed can be held to be incompetent as seeking what is called partial partition. In dealing with this question, we have to bear in mind what I stated earlier, namely, that the parties are Mohammedans wh

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