ORDER H.N. Seth, J. - This is a Plaintiff's second appeal. He brought a suit for partition of trees standing on grove No. 217 A, 217B and 217 area 3.34 acres. The Plaintiff claimed 192/334 share in the trees. The Defendant contested the suit inter alia on the ground that a suit for partition of the trees alone is not maintainable. The learned Munsif held that the suit for partition of the 'trees alone was maintainable and that the Plaintiff had 175.8/334 share in the trees in dispute. It decreed the Plaintiff's suit for partition accordingly. Plaintiff accepted the decree passed by the trial court, but the Defendant feeling dissatisfied went up in appeal before the, lower appellate court. The share of the Plaintiff as determined by the trial court was not disputed by either of the two parties. Lower appellate court, however, came to the conclusion that although there was no specific bar in seeking partition of the trees alone, the Plaintiff's suit for partition would be bad because he sought partial partition of the properties belonging to the parties. It also held that mere partitioning the trees would lead to several complications. Lower appellate court therefore allowed the appeal and dismissed the Plaintiff's suit for partition of trees. 2. Learned Counsel for the Appellant urged that after coming to the conclusion that there was no specific bar in seeking partition of the trees alone the court below was not justified in dismissing the suit on the ground of partial partition. He contended that it is only the principle of Hindu law, under which, unless a joint owner includes all the properties in a suit for partition, the same cannot be decreed. He contends that this principle has no application to the partition of agricultural property which is not governed by the principles of Hindu Law. 3. Learned Counsel for the Respondent however contends that the grove forms one unit of property and it is not possible to seek partition of its components alone; suit for partition of a grove lies in revenue court only and the civil court has no jurisdiction to entertain it.
3. Learned Counsel for the Respondent however contends that the grove forms one unit of property and it is not possible to seek partition of its components alone; suit for partition of a grove lies in revenue court only and the civil court has no jurisdiction to entertain it. He therefore supports the decree passed by the lower appellate court, not on the ground that the suit is barred as being for partial partition, but on the ground that a grove is not capable of partition in such a manner that the trees alone may be divided without dividing the land underneath it. He contended that considering the nature of property, the property sought to be partitioned i.e. trees, becomes importable and Plaintiff's suit therefore cannot be decreed. 4. In my opinion the argument raised on behalf of the Respondent has force. In the case of Hemadra Nath Khan v. Ramani Kanti Roy ILR 24 Cal. 575 a Full Bench of the Calcutta High Court observed: I am of opinion that the question ought to be answered in the affirmative. As a general rule every joint owner of property should be held entitled to obtain partition, or in other words, to be placed in a position to enjoy his own right separately and without interruption or interference by his cosharer.... The general rule must therefore be taken subject to many exceptions and qualifications depending upon the nature of the thing owned jointly, the nature of the interest of the party claiming partition, the nature of the terms and condition on which the different joint owners held their respective interests and various other matters. But I do not see any good and sufficient reason for thinking that the present case should form any exception to the rule. It is not suggested that the property sought to be divided in this case is either impartible or is from its nature such that the partition asked for will impair the value of any of the shares into which it is to be divided. 5. Similarly, a Division Bench of the same Court in the Case of Rajendra Kumar Bose Vs. Brojendra Kumar Bose, AIR 1923 Cal 501 while commenting upon the general rule applicable in a suit for partition made the following observations: The rule is enunciated in these or similar terms by text writers by recognised authority.
5. Similarly, a Division Bench of the same Court in the Case of Rajendra Kumar Bose Vs. Brojendra Kumar Bose, AIR 1923 Cal 501 while commenting upon the general rule applicable in a suit for partition made the following observations: The rule is enunciated in these or similar terms by text writers by recognised authority. Thus freemen (co-tenancy and partition Section 508) states that a contract held in common cannot be partitioned by fragments and a suit for partition should always embrace the whole contract held by the co-tenants. 6. In my opinion, although it may be open to a party to seek partition of one out of several properties jointly owned, but it is not open to a party to seek its partition by fragments or of its components. To illustrate, if there are co-owners of several houses they may seek partition of one of the houses leaving the other houses joint, but then no party can claim partition of one of the rooms in that house leaving the other rooms joint. This would be seeking a partition of one of the components of the property. Another example illustrating the above principle may be where there is a house owned by several parties, none of them may claim partition only of the doors or other fittings attached in the house, which will amount to seeking partition not of the house but of its components. 7. Applying this principle to the facts of the case before me, I find that it was a grove which was being jointly owned by various persons. The Plaintiff wants partition only of trees thereby breaking up the grove into its components. In effect he is seeking partition of the grove by fragments which is not permissible. Once it is accepted that in a grove a party can seek partition of trees it may be possible to contend that he may seek partition of a single tree standing therein i.e. partition of the branches of the trees this, in my opinion, would clearly be untenable. Since the real property involved is a grove, land and trees being its component parts, no party can seek partition of one component of the property leaving the other. I am therefore of opinion that in the circumstances, a suit for partition of the trees alone without seeking partition of the grove itself is not maintainable.
Since the real property involved is a grove, land and trees being its component parts, no party can seek partition of one component of the property leaving the other. I am therefore of opinion that in the circumstances, a suit for partition of the trees alone without seeking partition of the grove itself is not maintainable. It can not be disputed that a suit for partition of a grove is not maintainable in a civil court. 8. Learned Counsel appearing for the Appellant brought to ray notice the case of Multan Singh and Others Vs. Pudhan Man Singh and Others, AIR 1924 All 854 wherein it was held that "a civil court can be allowed to partition the buildings before the revenue courts have first partitioned sites on which they stand, though the revenue court alone can partition the sites." The learned Counsel argued that just as in Multan Singh's case the partition of the house standing on a plot of land could be done by the civil court and that of the land underlying it by the revenue court, in the same manner partition of the trees standing in the grove can be done by the civil court and the lend on which these trees stand can be achieved by making an application to the revenue court and therefore there should be no objection to the seeking of partition of trees alone. I am unable to accept this argument. The case before the Division Bench was a very special case in which it was not open to the revenue court to partition the house and to civil courts to partition the site. Under the circumstances there was no single court from which partition of the site and the house standing thereon could be obtained. It was because of force of circumstances that it was held that partition of house could be obtained from the civil court and that of the site of the revenue court. In our case, however, partition of the trees along with the land on which they stand can be obtained from the revenue court. 9. Having repelled the only point urged on behalf of the Appellant, I find no force in this second appeal which is dismissed with costs.