Pakkiri Kanni vs Haji Mohammad Manjoor Saheb By Agent ... on 11 April, 1923
5. Turning now to Second Appeal No. 610 of 1934, the only contention raised on behalf of the appellant, who was the original defendant No. 2, and who also claims as assignee of defendant No. 4, is that the plaintiff has not brought into hotchpot in this suit all the properties which were dealt with under the award. For instance, there was the property situated at Belgaum which was dealt with in the award and still it is not sought to be obtained possession of in this suit, and that the suit, therefore, being one for a partial partition, is not maintainable. This contention was raised by defendants Nos. 1 and 3 in their written statement and defendant No. 2 supported that written statement. It appears, however, that an issue was framed in the trial Court on this point, and it was held that this property was held not as joint tenants but as tenants-in-common by the parties, and relying upon the decision in Pakkiri Kanni v. Manjoor Sahib (1923) I.L.R. 46 Mad. 844, the Court was of opinion that this suit by one tenant-in-common to obtain possession of his share in certain properties under the award is maintainable even though some other property dealt with under the award is not brought into the suit. The cases relied upon on behalf of the defendants were distinguished on the ground that they were cases of joint tenancy and not of tenancy-in-common. In the appeal Court, although a ground had been taken in the memorandum of appeal, it clearly appears that that ground had not been urged, and there was no decision, therefore, on the point.