JUDGMENT Hon’ble Prakash Krishna, J.—This is defendant’s appeal from the original judgment dated 17th of March, 1972 passed in suit No. 56 of 1966 for partition of half share in respect of two houses, described at the foot of the plaint. 2. Father, Lakhan Lal son of Jharkhandi alongwith his son Rajendra Prasad instituted the aforestated suit on the allegations that the two houses, one at Urdu Bazar and another at Mohalla Raiganj Dhammal, in dispute are joint Hindu family property wherein they have half share and their shares may be separated. The two houses described at the foot of the plaint are hereinafter called as house No. 1 and house No. 2 respectively. A small pedigree as mentioned in the plaint is reproduced below : 3. There appears to be no serious dispute with regard to the family tree between the parties. 4. The suit was contested on various pleas including that it is not maintainable as it has been filed for partial partition of the joint Hindu family properties. It was pleaded by the defendants in their written statement that besides the two houses in dispute, two more houses in Mohalla Raiganj and Dhammal in District Gorakhpur described by the boundaries at the foot of the written statement, are said to be joint Hindu family properties. Partition having not been claimed in respect of other two houses (hereinafter called as house Nos. 3 and 4 respectively) the suit for partial partition is not maintainable. The plea that the defendants have acquired title by way of adverse possession was also set out therein. It was stated that the plaintiffs are in possession of one house at Raiganj and another house at Dhammal Ganj house Nos. 3 and 4 but they have not included these two houses for partition. Various other pleas were also raised in the written statement. 5. The plaintiffs filed replication. In the replication, the averments made that there are two more houses (house Nos. 3 and 4) was not disputed. 6. The trial Court on the basis of the pleadings of the parties raised the following issues : 1. Whether the parties own two other houses besides the house in suit in Mohalla Raiganj, Gorakhpur. If so, whether the suit is bad for partial partition? 2. Whether houses given at the foot of the W.S. are joint property of the parties? 3. Whether the parties own two other houses besides the house in suit in Mohalla Raiganj, Gorakhpur. If so, whether the suit is bad for partial partition? 2. Whether houses given at the foot of the W.S. are joint property of the parties? 3. What is the share of the plaintiff in property in suit? 4. To what relief, if any, is the plaintiffs entitled? 5. Whether the defendant Nos. 1 and 2 are the sole owners of the house No. 1 situated in Mohalla Sheikhpur (Urdu Bazar) except for the two Kotharies as alleged? 6. Whether the defendant Nos. 1 and 2 have become owners of the house No. 1 by adverse possession as alleged? 7. Whether the suit is barred by estoppel and acquiescence as alleged? 8. Whether the suit is bad for non-joinder? 9. Whether the suit is barred by limitation? 10. Whether the suit is under valued and Court fee paid is insufficient? 11. Whether suit is under valued and Court for is insufficiency paid? 7. Issue Nos. 1, 2, 5 and 6 were considered together and it has been found that the houses in dispute were joint family property of the plaintiffs and defendants. The houses given at the foot of the written statement are also proved to be the joint hindu family property of the plaintiffs and defendants. It has been further found that the defendants are not sole owners of the house No. 1 shown in the plaint situate in Mohalla Shekhpur Urdu Bazar of Gorakhpur. The plea with regard to the adverse possession set out by the defendants was negated. Issue Nos. 7, 8 and 9 were not pressed. In short, it was found that the house Nos. 3 and 4 are jointly owned by the parties. The suit for partition to the extent of the half share in the house Nos. 1 and 2 mentioned at the foot of the plaint was decreed. 8. Heard Sri Pramod K. Gupta, learned counsel for the appellant. None was present on behalf of the respondents. To ensure the attendance of the learned counsel for the respondents the case was adjourned on the earlier occasion, even then, the counsel for the respondent has not cared to attend the hearing of the appeal. Endeavour was made to decide the appeal after hearing the counsel for the parties but without any success. 9. To ensure the attendance of the learned counsel for the respondents the case was adjourned on the earlier occasion, even then, the counsel for the respondent has not cared to attend the hearing of the appeal. Endeavour was made to decide the appeal after hearing the counsel for the parties but without any success. 9. The learned counsel for the defendant appellant submitted that there was earlier a partition between the parties and the suit for partition is not maintainable. It was also argued that in view of the findings returned by the Court below holding that there are other joint family properties which have not been included in the suit, the suit is bad for partial partition. 10. Considered the aforesaid submissions of the learned counsel for the appellant. The Court was taken through a registered agreement dated 18th of January, 1939 Exhibit-5 in support of the first contention of the appellant. It is not in dispute that Beni Ram had three sons namely Ram Charan, Jharkhandi and Ramdhani. It is the common case of the parties that Ramdhani separated and got his 1/3rd share in the year 1938 in the house situate at Urdu Bazar. The contention of the learned counsel for the appellant is that thereafter, a partition between the sons of Ram Charan namely Swami Nath, defendant No. 1, and Shyam Raj (now deceased), on one hand, and Jharkhandi, on the other hand, the predecessor in interest of the plaintiff had taken place. Meaning thereby, the remaining two sons of Beni Ram, namely branch of Ram Charan and Jharkhandi were separated mutually as recorded in the registered agreement dated 18.1.1939. Much emphasis was laid on the construction of certain portion of the said agreement to buttress the above argument. 11. The existence of the agreement is not in dispute. The case of the plaintiff is that through the said agreement, there was a partition in respect of two Kotharis and movables i.e. the capital invested in the shop Anjan situate at Mohalla Raiganj and another shops of sweets situate in Mohalla Urdu Bazar. 12. On a careful consideration of the said document as a whole, the irresistible conclusion is that there was a partition not in respect of the houses but in respect of the capital invested in the two shops and with regard to Kotharies. 12. On a careful consideration of the said document as a whole, the irresistible conclusion is that there was a partition not in respect of the houses but in respect of the capital invested in the two shops and with regard to Kotharies. It is important to note that no such plea that there had been a partition through the aforesaid agreement dated 18.1.1939 has been raised in the written statement. There being no such plea, the said plea cannot be allowed to be raised for the first time in the appeal. Strenuously, it was contended by the learned counsel for the appellant that in the opening portion of the agreement it is mentioned that there has been a partition in respect of the entire properties and the parties are in possession of their respective shares. Undoubtedly, the said sentence finds mention in the document but it cannot be read out of the context. I am not prepared to draw any such inference from the said sentence in absence of necessary pleadings in the written statement. Otherwise, it would amount carving out of a new case in appeal. I leave the matter as it is, and it is not necessary to dwell upon much, in view of the fact that the suit framed as such, is not maintainable. 13. Now, I take up the submission of the appellants that the suit for partial partition is not maintainable. A perusal of the pleadings of the parties and the finding recorded by the Court below clearly shows that besides the two houses in dispute, there are two other joint properties namely house Nos. 3 and 4. The matter has been examined in depth by the trial Court while considering the issue No. 1 alongwith other issues. The Court below has found that the house No. 2 of the plaint was acquired in the year 1936 and as such it was joint property. The house No. 1 situate in Urdu Bazar as mentioned in the plaint has been found to be joint property of the parties. This house was in existence in the year 1939 which is evident by Exhibit-5 dated 18th of January, 1939. The plea that it was exclusive property of the defendant has been negated by the Court below. The case of the defendant is that the two houses (house Nos. This house was in existence in the year 1939 which is evident by Exhibit-5 dated 18th of January, 1939. The plea that it was exclusive property of the defendant has been negated by the Court below. The case of the defendant is that the two houses (house Nos. 3 and 4) which are not included in the plaint were allotted to them in the partition with Jharkhandi. House Nos. 1 and 2 were given exclusively to the defendants and two other houses which are not included in the plaint were given to Jharkhandi. The finding of the Court below in this regard is reproduced below : “In the aforesaid circumstances it is clear that the house in suit were joint family property of the plaintiffs and defendants. The houses given at the foot of written statement are also proved to be the joint family property of the plaintiffs and defendants. It is also evident that defendants are not the sole owners of the house No. 1 shown in the plaint situated in Mohalla Sheikhpur Urdu Bazar of Gorakhpur. It is also not proved that defendant Nos. 1 and 2 have in any way become owners by adverse possession. The issues are, therefore, answered accordingly.” 14. The Apex Court in Mohd. Mustafa v. Abu Bakar, AIR 1970 SC 361, has held that amendment in the pleadings to incorporate other joint properties in a suit for partition should be allowed. 15. In Kenchegowda (since deceased) by L.Rs. v. Siddegowda Alias Motegowda, (1994) 4 SCC 294 , the Apex Court has held that a suit for partial partition in absence of inclusion of other joint family properties and impleadment of other co-sharers is not warranted in law. 16. “Therefore, what has been held is that the property had not been allotted in favour of the first defendant in the partition. That is very different from holding that the case of partition had not been accepted by the first appellate Court. This being so, a decree for partition could not have been passed on a mere application for amendment. In fact, as rightly urged by the learned Counsel for the appellant that the causes of action are different and the reliefs are also different. To hold that the relief of declaration and injunction are larger reliefs and smaller relief for partition could be granted is incorrect. In fact, as rightly urged by the learned Counsel for the appellant that the causes of action are different and the reliefs are also different. To hold that the relief of declaration and injunction are larger reliefs and smaller relief for partition could be granted is incorrect. Even otherwise, a suit for partial partition in the absence of the inclusion of other joint family properties and the impleadment of the other co-sharers was not warranted in law. Thus, we find no difficult in allowing these appeals which are accordingly allowed. The judgment and decree of the trial Court as affirmed by the first appellate Court are restored. However, there shall be no order as to costs.” 16. This Court in Ishrat Husain Khan v. Additional District Judge, Gorakhpur, 1992 AWC 818 , has held that the doctrine of partial partition bars the trial of a suit for partition in certain circumstances. If the Court trying a suit is satisfied that the entire property liable for partition was not included in the suit and only a portion of the property is said to be partitioned, it would decline the relief for partition. It has been held that it is imperative to a trial Court to find out whether the whole property is liable to be partitioned or not. 17. In S. Satnam Singh and others v. Surendra Kaur and another, AIR 2009 SC 1089 , the same principle has been reiterated. In para 16 of the report it has been stated that ordinarily, a suit for partial partition may not be entertained. When the parties have brought on record by way of pleadings and/or other material that apart from the properties mentioned by the plaintiffs in his plaint there are other properties which could be subject-matter of a partition, the Court would be entitled to pass a decree even in relation thereto. 18. The aforesaid observations of the Apex Court are very important in the context of the facts of present case, specially when the case of the defendants is that a partition had already taken place and the plaintiffs have intentionally not sought the partition of those two houses (house Nos. 3 and 4) which are in their possession by excluding them out of the ambit of the plaint. 3 and 4) which are in their possession by excluding them out of the ambit of the plaint. The trial Court was conscious of the above fact and it has noted towards the end of the judgment that it is not awarding the cost of the suit to the plaintiffs because they have not included other joint family properties in the suit for the reasons best known to them. In view of the finding recorded by the trial Court holding that the present suit is for partial partition, the argument of the learned counsel for the appellant, that such a suit is not maintainable, is on terra-firma. The suit should have been dismissed for partial partition or the decree in respect of other joint properties i.e. in respect of house Nos. 1 to 4 should have been passed. It would be travesty of justice to decree the suit for the joint properties in possession of the defendants, without passing a similar decree in respect of other joint properties, in possession of the plaintiffs. The fact that for house Nos. 3 and 4, partition has not been claimed, lends support to the defence version that there was a partition in the two branches of the parties earlier. 19. Before parting with the case, it may be noted that the Court below got over the above plea of the appellants by making the observation that it was admitted by the counsel for the parties that the suit will not fail for non-inclusion of other joint properties. The relevant observation is reproduced below : “It was admitted position of law between the learned counsel for the parties that the suit will not fail for want of including of these houses in the subject-matter of the present suit.” 20. The aforesaid observation will not bind the appellants herein as wrong admission of law is not binding on the parties. 21. The learned counsel for the appellants was not permitted to raise any other point in support of the appeal. 22. In view of the above discussion, the judgment and decree granting the partition of half share in favour of the plaintiffs cannot be allowed to stand. 23. Although the respondents have filed cross objection challenging the findings recorded against them but none was present to assail those findings. The cross objection is, therefore, dismissed in default. 24. 22. In view of the above discussion, the judgment and decree granting the partition of half share in favour of the plaintiffs cannot be allowed to stand. 23. Although the respondents have filed cross objection challenging the findings recorded against them but none was present to assail those findings. The cross objection is, therefore, dismissed in default. 24. In the result, the appeal succeeds and is allowed. The judgment and decree passed by the Court below is hereby set aside and the suit stands dismissed. 25. The cross objection is dismissed in default. ——————