M.Y. Eqbal, J.

1. Petitioners who are Defendant Nos. 1 and 2 have challenged the order dated 13.9.2004 passed by Munsif, Garhwa in Partition Suit No. 22/2003 whereby he in purported exercise of power under Order 8 Rule 6 CPC has disallowed the so called counter claim made by the petitioners in the written statement.

2. Plaintiff/respondent No. 1 instituted the aforesaid suit for a preliminary decree in respect of 1/6th share of the properties fully described in Schedule A, B, C, D and E of the plaint.

3. Plaintiffs case inter alia is that he and the defendants are the sons and daughters of late Bateshwar Tiwari who had acquired Schedule-A land. Schedule-B lands were acquired by him through Partition Suit No. 24/1923. Schedule C lands were acquired by the mother of the parties, whereas plaintiff and defendant Nos. 1, 2 and 3 acquired Schedule-D property. It was alleged that Pucca Well described under Schedule F was constructed by plaintiff from his own earnings. Bateshwar Tiwari died in the year 1993 and his wife died in the year 1995 and the suit properties possessed by the plaintiff defendant Nos. 1, 2 and 3 only since defendant Nos. 4 and 5 have been married and are well settled in life and they are not interested in taking any share in the property. Defendant/petitioners filed written statement stating that suit is not maintainable for partial partition. According to these defendants there are several other properties which were acquired out of joint family fund but the same were not included for partition. Defendants case is that they were in Military Service and were posted at different places and used to send money to the joint family. It is alleged that several other properties described in Schedule A-1 of the written statement were acquired by the income of defendant No. 1 and 2, Some of these properties have been included in Schedule A to the plaint. Likewise several other properties acquired by joint family fund have been intentionally left out in Schedule B of the plaint. Defendants further case is that Schedule-C property were not acquired by mother of the parties but were acquired out of joint family fund. So far Schedule-D properties are concerned, it is alleged that they were purchased in the name of the plaintiff but they were acquired out of the income of Defendant Nos. 1 and 2. It is alleged that during the lifetime of the father and instead of jointness various other properties were acquired out of joint family fund but those properties have been intentionally excluded in the plaint.

4. After the filing of the written statement, plaintiff filed a petition purported to be under Order 8 Rule 6(c) read with Section 151 C.P.C. for excluding the properties described in Schedule A of the written statement by way of the counter claim. Petitioner filed rejoinder reiterating that the properties were acquired out of joint family fund will certainly be available for partition notwithstanding that the same have been acquired in the name of one or other persons. The court below after hearing the parties passed the impugned order and disallowed the so-called counter claim of Defendant Nos. 1 and 2 by excluding the properties described in Schedule A-1 to the written statement from partition. The court below disallowed the claim of the defendants for partition of the property described in Schedule-A-1 on the ground inter alia that those properties stands in the name of different persons other than the parties to the suit and these properties are not the joint family property. The court below therefore, held that the petition filed by the plaintiff for excluding those properties is fit to be allowed under Order 8 Rule 6(C) read with Section 151 of the Code of Civil Procedure.

5. Rule 6(A), 6(B) and 6(C) have been inserted in the Code of Civil Procedure by C.P.C. (Amendment) Act 1976. Rule 6(A) to 6(D) of Order 8 reads as under: 6-A. Counter-claim by defendant- (1) A defendant in a suit may, in addition to his right of pl