JUDGMENT

Thadani, J - This is an appeal from the decision of the learned First Class Subordinate Judge, Shikarpur, in Suit No. 87 of 1939, in which he dismissed the plaintiff-appellants' suit with costs. It appears that the appellants had purchased some agricultural property from one' Bakhshokhan and Hajikhan, sons of one Natho-khan, by several deeds. The property shown in List A attached to the plaint was.sold in its entirety to the appellants; as regards the property in List B, an undivided twelve annas share was sold to them. Bakhshokhan and Hajikhan had stated in the sale-deeds that the property sold to the appellants was their exclusive property.

2. In 1930, heirs of Nathokhan filed Suit No. 78 of 1930 in the Subordinate Civil Court of Shikarpur in which they claimed the property included in Lists A and B in the present suit, as belonging to Nathokhan, and disputed the right of Bakhshokhan and Hajikhan to alienate their share in the property. The appellants were joined as defendants in that suit, and they raised a number of defences including limitation and adverse possession. Their main defence, however, was that a suit by the heirs of the deceased Nathokhan for a partial partition was incompetent and that the entire property of the deceased Nathokhan should have been made available for a general partition.

3. The trial Court on the authority of the Pull Bench decision of the Court of the Judicial Commissioner of Bind in Wazir v. Dwarkomal A.I.R. 1922 Sind. 41 negatived the appellants' contention and found that the property involved in Suit No. 78/1930 was the property of the deceased Nathokhan, and that the shares of the plaintiffs in that suit could not be alienated by Hajikhan and Bakhshokhan. An appeal preferred against the judgment and decree passed in Suit No. 78/1930 was dismissed by this Court.

4. The appellants in the present suit seek to have a general partition effected in the other properties of Nathokhan which were not alienated by Hajikhan and Bakhshokhan. Those properties are mentioned in Lists C, D and B, in the present suit. The respondents resisted the appellants suit on the ground that they had no right to sue; that the suit was barred by the decree in suit No. 78/1930; that so far as the property mentioned in Lists C, D and B is concerned, it has not been sold to the appellants by Bakhshokhan and Hajikhan; that the appellants are, therefore, not entitled to a declaration and partition as claimed by them.

5. Upon the pleadings, the trial Court passed the following issues:

(1) Have the plaintiffs a right to sue or not? (2) la the suit not in proper form? (3) Is the suit barred by decree in Case No. 78 of 1930, of the First Class Subordinate Court, Shikarpur? (4) Are the plaintiffs estopped from bringing this suit? 15) Was the property shown in the plaint left by Bakhshokhan and Hajikhan? (6) Has any property been sold by Bakhshokhan and Hajikhan? (7i Are the facts stated in paras. 5, 6 and 7 of the plaint true? If so, what is the consequence? (8) Are the plaintiffs entitled to the declaration as prayed for in para. 8 of the plant or to partition as prayed for in para 9 of the plaint? (9) What should the decree be?

6. The learned advocate for the appellants has challenged the findings of the trial Court on all the issues except Issue 6, in regard to which there is no dispute between the parties, as it is common ground that the property mentioned in Lists A and B only had been alienated by Bakhshokhan and Hajikhan to the appellants. But it is contended that the properties mentioned in Lists C, D and E which were not alienated by Hajikhan and Bakhshokhan, should be made available for a general partition so as to give effect to equities between the vendors Bakhshokhan and Hajikhan and the vendee-appellants, in view of the fact that in suit NO 78/ 1930 the appellants' contention for general parti, tion was negatived.

7. Mr Kimatrai concedes that his clients cannot obtain a partition decree in respect of the properti