Exclusion of any item of common property will not render the suit incompetent for partial partition.

G.R.Majithia, J.

1. This regular second appeal is directed against the judgment and decree of the first appellate Court reversing on appeal those of the trial Judge and passing a preliminary decree for partition of the house in dispute. The facts :-

2. The parties to the lis are the sons of Nawla, who died in the year 1947. Mathura Parshad son of Nawla, plaintiff-respondent (for short, the plaintiff) filed a suit for partition of the common property. Dalu son of Nawla, defendant-appellant (for short, the defendant) objected to the partition on the ground that the suit was bad for partial partition as a nauhra which was the common property of the parties had not been included in the partition.

3. The trial Judge upheld the objection and dismissed the suit being for partial partition. But, on appeal, the judgment and decree was reversed by the first appellate Court, which held that the plea of partial partition could only be sustained regarding joint property and not regarding common property. It took note of the fact that there was no plea or proof that the disputed house and the `nauhra were joint coparcenary properties of the parties to the lis.

4. There is no dispute that if the property in dispute is joint Hindu family property and if any part thereof has been excluded from the partition, the suit is liable to be dismissed for partial partition. In the instant case, the trial Judge found that the parties had sought partition of the common property and exclusion of any item of common property will not render the suit incompetent being for partial partition. The conclusion arrived at by the lower appellate Court suffers from no infirmity.

5. For the reasons stated above, the appeal is devoid of any merit and is accordingly dismissed but with no order as to costs. Appeal dismissed.