Research › Browse › Judgment

Allahabad High Court · body

1983 DIGILAW 360 (ALL)

Chandrika Prasad v. Ambika Prasad Others

1983-05-11

S.SAGHIR AHMAD

body1983
JUDGMENT S. Saghir Ahmad, J. - This is Plaintiff's second appeal. 2. The suit was filed by the plaintiffAppellant for partition of l/3rd share in the disputed property. It was pleaded by the appellant that the house in dispute had been constructed by their father, Suraj Prasad, who died in the year 1947. The property in question was inherited by his three sons, that is, present appellant and the respondents. It may be stated that Chandrika Prasad, appellant, had pleaded that Ambika Prasad, respondent was, his real brother while Moti Lal was his step brother. 3. Moti Lal, respondent no. 2, who has filed a separate written statement, had admitted the claim of the plaintiff. 4. The suit was, however, contested by respondent no. 1, who pleaded, inter alia, that he had got the house in question made pucca and he was the exclusive owner of the said house. It is also pleaded by him that the ancestral house was situate in the nearby village Sisai Bhikhpur and that it had become Khandhar. 5. The trial court, on a consideration of the evidence adduced by the parties, came to the conclusion that the house in dispute was the ancestral house of the parties in which the appellant and respondents have l/3rd share each. Respondent no. 1 thereafter filed an appeal which was disposed of by the District Judge by his judgment and decree dated 6.1.78. The learned District Judge also found that the house in dispute was the ancestral house of the parties in which the parties had l/3rd share each. He also found that the house marked by letters AGHJ in the site plan (paper no. 98/3 Ka1) prepared by the commissioner, was constructed by respondent no. 1. Consequently, he passed an order that a the time of actual partition, pucca construction shall be given in the exclusive share of respondent no. 1 and that the other two brothers will not be entitled to any compensation for their share in the Malwa of the house, as the said house had been constructed Pucca exclusively by respondent no. 1. It is in these circumstances that appellant has come up in second appeal before this Court. 6. 1 and that the other two brothers will not be entitled to any compensation for their share in the Malwa of the house, as the said house had been constructed Pucca exclusively by respondent no. 1. It is in these circumstances that appellant has come up in second appeal before this Court. 6. It has been contended by the learned counsel for the appellant that it was not within the jurisdiction of the learned District Judge to indicate, at the stage of preliminary decree, that the house marked by letters AGHJ in the site plan (paper no. 98/3 ka1) shall be given in the exclusive share of respondent no. 1. The allotment of share was a matter of the final decree stage and that too after a partition scheme was prepared. He has also contended that the District Judge, in any case, was not entitled to lay down that the other two brothers, i.e. appellant and respondent no. 2 will not be entitled to compensation even. 7. Learned counsel for the respondent, on the contrary, has referred to the provisions of Order XX, R. 18 (2) of the Code of Civil Procedure and on that basis he has contended that the learned District Judge was well within his jurisdiction in issuing the direction that the house marked by letters AGHJ shall be given in the exclusive share of respondent no. 1. 8. Order XX, R. 18(2) of the Code of Civil Procedure provides as under: 18. Where the Court passes a decree for the partition of property or for the separate possession of a share therein, then, (1)......................... (2) if and in so far as such decree relates to any other immovable property, the Court may, if the partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree declaring the rights of the several parties interested in the property and giving such further directions as may be required A preliminary decree, in a suit for partition, only decides the rights of the parties and their shares. Equities are adjusted at the stage of final decree after taking into consideration the tentative or provisional partition scheme. Equities are adjusted at the stage of final decree after taking into consideration the tentative or provisional partition scheme. The directions contemplated by Order XX, R. 18 (2) of the Code of Civil Procedure are the directions which have to be necessarily issued by the courts passing preliminary decree in order to give effect to the rights of the parties determined at the trial. The directions have to be in consonance with the rights of the parties. 9. Learned counsel for the respondent, however, placed reliance upon a decision of the Orissa High Court in the case of Jadunath Naik & others V, Bipra Charon Maol. AIR 1974 Orissa 145 in which it has been laid down as under: The equitable rule extracted above from Calcutta and Madras decisions, is subject to certain riders. One rider is that the equitable distribution should be resorted to only when practicable. The practicability in the instant case means that if the builder cosharer is allotted the excess area by reasons of his having built his own house on it, there must be sufficient homestead land available for allotment to defendants, 1 and 2. Since sufficient land is not available, the equitable rule cannot be practically applied. The other rider is that unless the builder, the plaintiff in the instant case, has built upon that excess homestead area without knowledge of the rights of defendants 1 and 2 therein or without their consent implied or express, the equitable rule cannot be applied. In the instant case, it cannot be said that the plaintiff was not aware of the rights of the defendants 1 and 2 in every inch of the homestead and they consented to his building on a part of the homestead in excess of his share. Absence of objection on the part of defendants 1 and 2 to the plaintiff's building upon an area of the homestead in excess of his share cannot be construed as consent with the conscious knowledge that such building enterprise was entered upon with the object of affecting their interest, in absence of evidence that such construction was of such stupendous proportions or was entailing such huge expenses as would amount to imparting notice. The decision, of the Orissa High Court, therefore, does not support the contention of the respondent in the present case. 10. The decision, of the Orissa High Court, therefore, does not support the contention of the respondent in the present case. 10. The learned counsel for the respondent has also relied upon the ease of Ram Chandra & others v. Siva Ram and others. AIR 1978 NOC 33(AII). This case related to the partition of assets of a dissolved partnership and does not apply to the present case. 11. In the instant case, the learned District Judge by clearly issuing directions that the house marked by letters AGHJ shall be allotted in the exclusive share of respondent No. 1 at the time of the passing of the final decree, cannot be said to have acted in consonance with the rights of the parties determined at the trial. It has been found by the trial court, and the finding was not reversed by the lower appellate court, that the parties have l/3rd share each in the house in question. The question as to which share should be allotted to which party has to be decided at the subsequent stage i.e. at the time of the passing of final decree. In view of this, the direction issued by the learned District Judge cannot be justified in law. Similarly, his further direction that the appellant and respondent no. 2 shall not be compensated can also not be sustained. 12. In view of what has been stated above, I allow the appeal, set aside the judgment and decree passed by the District Judge in so far as it contains a direction that the house marked by letters AGHJ shall be allotted exclusively to the respondent no. 1. I direct that the question whether the portion marked by letters AGHJ should be allotted exclusively to respondent no. 1 or whether the appellant and respondent no. 2 would be entitled to any compensation shall be decided at the time of preparation of final decree after taking into consideration the partition scheme under order 26, rule 13 of the Code of Civil Procedure. The parties shall bear their own costs. (Appeal allowed)