IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No. 1597 of 2006 SHYAMA PRASAD DAS Versus SUSHANT KUMAR DAS & ORS ----------- 4 13.1.2009 Heard counsel for the petitioner. This Court would find that the view taken by the court below that the suit in hand was basically for declaration of title and the prayer of partition was only a consequential relief, does not seem to be correct. Counsel for the petitioner in fact has produced the copy of the plaint by filing a supplementary affidavit from which it would be clear that in paragraph 1 the case of the petitioner is that he alongwith defendants no. 1 and 2 are the own brothers and defendants no. 3 and 4 are father and mother and all of them constitute a joint Hindu family. It is in this background that after making averments in different paragraphs of the plaint, it has been specifically asserted in paragraph no. 22, thereof that the plaintiff has 2/3rd share in the suit property whereas 1/3rd belongs to defendant no. 2 and the other defendants have no right, title and interest in the suit property. Obviously with such pleadings when the petitioner in the plaint has prayed for the reliefs as quoted hereinunder : - “(a) That after adjudication it will be declared that the suit property belong to the plaintiff and 2 defendant no. 2 and the plaintiff had not 2/3rd share and accordingly a decree of partition of the 2/3rd share of the plaintiff in respect to the suit property described in the Schedule –I of the plaintiff and against the defendants. (b) That by appointment of survey posted pleader commissioner a separate takhta of the plaintiff’s share be carved out and plaintiff put possession of the same. (c) That by an order of ad interim injunction the defendants be restrained from alienating the suit properties and also to disturb the peaceful possession of the plaintiff from the suit house till the decision of the suit. (d) That the cost of the suit be awarded to the plaintiff. (e) That any other reliefs and awards the plaintiff as deem fit, just and proper be given to the plaintiff.” It can not be said that the suit is not for partition. The expression seeking declaration of the suit property belonging to the plaintiff and defendant no. 2 is only by way enforcing the claim of partition. There actually seems to be no dispute with regard to title of the petitioner who is from the same family and the only issue is whether the 3 property is joint or separate and if so what would be the share of the petitioner. Eventually the view recorded by the court below that the petitioner was required to pay advolerum court fee does not seem to be correct and consequently the impugned order is set aside and the court below is directed to proceed with the present suit as a partition suit. Surendra / (Mihir Kumar Jha, J.)