The nature of the 1860 partition and the defendant's separate ownership of acquired lands influenced the court's decision.

Hallifa, A J C—There is no appeal and there was none in the Court of the District Judge in respect of field No. 57/1, which was originally sir land but is now apparently recorded as khudkasht because it is held by the defendant appellant Kesheorao on a lease for 99 years from a person who has no other interest in the village except the proprietary right in that field. The decision that this land must be excluded from the lands liable to partition is certainly correct, though the true state of affairs does not seem to have been realized.

2. The total area of sir and khudkasht in the village is said to be 364'39 acres. It is admitted that 107'87 acres of this were acquired by Kesheorao in certain years between 1886 and 1903, and it is in issue between the parties whether he acquired them for his own benefit or for that of the whole proprietary body. In regard to the rest he pleaded that it was divided among the co-sharers about 1860, so that each of them became separate owner of the fields allotted to him. The rights in the two parcels of land clearly require separate examination. Even after it has been found that the division of the lands in 1860 was only a temporary arrangement, to say that Kesheorao, an eight anna proprietor, is properly entitled to only one-half of all the sir and khudkasht in the village is to beg the question as to his acquisition of the 107'87 acres for himself or for all the proprietors.

3. In regard to both parcels of land it has to be remembered that the plaintiff can at the most claim that Kesheorao shall handover to them so much land as will make the area of their land equal to the area they ought to hold, that is five sixteenths of the total. They cannot claim what, belongs to the proprietors of the remaining three annas share in the village, the defendants, other than Kesheorao, who are content that Kesheorao should retain it.

4. In this connexion, it may be mentioned that one of those other defendants, holding one anna share but no sir land at all, disclaimed all interest in the suit, but was not discharged and was made a respondent in this and in the lower appellate Court. He did not appear in the lower appellate Court, but has appeared here, and his costs must be paid by the appellant. But the other defendants, who own a two anna share and do hold 6'32 acres of sir, were discharged in the first Court before the issues were framed. They also have been impleaded as respondents in both appellate Courts, and the appellant is saved from having to pay for his carelessness only by the failure of those respondents to appear in either Court.

5. In discussing the matter of the areas of the original home-farm, apart from Kesheorao's subsequent acquisitions, which are proportionate to the shares of the parties in the village, it has to be assumed that the whole of the 70.80 acres held by the plaintiffs is exactly the part of the original home-farm they have always held, neither more nor less. The truth of this assumption is, of course, extremely doubtful, as they also may have made subsequent acquisitions.

6. The total home-farm in the village is 364'39 acres, and the area acquired by Kesheorao from tenants is 107'87 acres. That leaves 236'52 acres. The area in proportion to the share of the parties, which may be called their proper areas, and the areas they actually hold are as follows:-

Proper area.

Actual area.

Kesheorao

(-/8/-)

128.26

179.40

The plaintiff's

(-/5/-)

80.16

70.80

The other defendants

(-/3/-)

48.10

6.32

7. It appears then that of the old home-farm Kesheorao would have to hand over not more than 9'36 acres to the plaintiffs, even if it has been held in severalty but owned in common during all these years.

8. As to the partition, the issue has been much complicated by the common use of terms in narrow senses without any definition of them. A division of property, an arrangement whereby property is divided, a distribution of property are all exactly the same as a partition of property. But