BHAGABATI SAHU v. TRILOCHAN SAHU AND AFTER HIM LAKHPATI SAHU
1989-03-27
L.RATH
body1989
DigiLaw.ai
JUDGMENT : L. Rath, J. - These two revisions have been preferred respectively by mutually contesting Defendants, against an order of the Subordinate Judge, Sambalpur including certain properties in the final decree proceedings in T.S. No. 16 1985 while refusing to so include some other properties. The short facts leading to the revisions are then one Ratnakar Behera had obtained a decree in Money Suit No. 67 of 1952 against the sons of one Para me swat Sahu, namely, Trilochan, Jujhistir and Kishore and having put the decree into execution vide Execution Case No. 6/54 purchased the 1/4th undivided interest of Parameswar in some items of properties and took joint possession of the same along with others through Court on 12-11-1962. Subsequently, Title Suit (sic) 3/62 was filed by Dibakar Sahu, the original Defendant No. 5 in the present suit on the premises that there had been a previous partition in the family of late Niranjan Sahu who had four sons, Jogeswar, Parameswar, Khageswar and Baleswar in which Jogeswar had been given 1/4th share in the joint family property and the said 1/4th share of Jogeswar be partitioned amongst the parties to that suit. In the suit, excepting the branch of Jogeswar the other members of the family representing the branches of Parameswar, Khageswar and Baleswar were not made parties. The suit was decreed and final decree was passed but Execution Case No. 13/79 filed by Dibakar to execute the decree was dismissed as the present suit, a comprehensive one, had been filed by the legal heirs of Ratnakar impleading all the members of the joint family as parties. The suit was filed by the heirs of Ratnakar seeking partition of their undivided 1/4th share which had been purchased by Ratnakar. In the sale in execution of the money decree. The suit was preliminarily decreed on 29-4-1967. After the preliminary decree was passed, Bihari, the original Petitioner in C.R. No. 257183 (sic) who was also the son of Defendant No. 4, purchased the 1/4th interest of late Ratnakar and was substituted as the sole Plaintiff in the final decree proceeding.
In the sale in execution of the money decree. The suit was preliminarily decreed on 29-4-1967. After the preliminary decree was passed, Bihari, the original Petitioner in C.R. No. 257183 (sic) who was also the son of Defendant No. 4, purchased the 1/4th interest of late Ratnakar and was substituted as the sole Plaintiff in the final decree proceeding. He filed a petition to include certain other properties in the final decree proceeding claiming the same to be joint family properties and claimed 1/4th share therein, but the learned Court passed the impugned order only permitting inclusion of the properties in loved in the earlier suit, i.e. T.S. 3/62 saying that those properties were the joint family properties and hence must be included in the final decree proceeding but rejected the prayer regarding inclusion of same other properties holding the same to be the self-acquired properties, not liable for partition. Admittedly no enquiry was held to determine the character of the property as self-acquired or not. As against such order while C.R. No. 257/83 was filed by Bihari (since dead) against the refusal to include the properties sought to be included, C.R. No. 421/83 has been preferred by Defendants 10 and 11 representing the branch of late Jogeswar against inclusion of the properties involved in T.S. 3/62 in the final decree proceeding. 2. It is the submission of Mr. Mohanty in C.R. 421/83 that since admittedly Ratnakar had purchased not the entire 1/4th share of Parameswar in the joint family property but only 1/4th share of specific properties as per the sale certificate issued in his favour in Execution Case N.D. 6/54, Bihari as the alter ego of Ratnakar cannot be permitted to enrage the scope of his interest by included other properties in the final, decree proceedings since Ratnakar could not have any interest in the slid properties and hence his interest must be confined to the property which was sold to him by virtue of Court sale.
Though on the face of it the submission appease to be attractive, yet it has no force since Bihari was not only representing the interest of Ratnakar having purchased the same, but was also independently a co-sharer rechristening the branch of Baleswar being the son of his Lakhpati, Defendant No. 4, and hence has a right as an independent co-sharer to the property to bring to the notice of the Court the other properties which had been left out from the hotchpot so that the entire properties are brought before the Court in the final decree proceeding and the dispute is finally settled. 3. It is well-settled that in a suit for partition even after passing of the preliminary decree, the suit itself continues to be pending' until the final decree is passed and that the Court may take into consideration all subsequent events from time to time and make enquiries under Order 20, Rule 18, CPC in respect of all other properties to which the suit decree may relate and for the purpose, as was observed in Phoolchand and Another Vs. Gopal Lal, there is nothing in the CPC which prohibits passing of more than one preliminary decree in a suit justifying the same. As a matter of bet, passing of such preliminary decree becomes necessary due to change of circumstances in a partition suit when the extent of share of the parties is varied due to deaths which might occur in between the passing of preliminary decree and the final decree. In furtherance of such principle, it would be reasonable to hold that parties may be permitted, if (he facts otherwise justify, to bring to its notice other properties left out from determination though liable to be included. Obviously such relief cannot be had after the final decree is passed. In that view of the matter, since an application had been made by the original Petitioner in C.R. 257/83 to bring in some other properties, it was incumbent upon the Court to have made an enquiry into the same giving opportunity to the parties to contest the claim whether the same is joint family property or not, and depending on the decision, decide as to the share of the properties in the respective properties.
In deciding the question it is however to be kept in view that the interest of the Plaintiffs would not be available to an increase except for the 1/4th share purchased be Bihari in the specific properties covered by the sale in Execution Case No. 6/54. Such increased interest would not extend to the other properties which were not subject-matter of the execution sale. The learned Subordinate Judge has failed to grasp the question in its proper perspective and hence the order must be set aside. 4. In the result, C.R. No. 257/83 is allowed and C.R. No. 421/83 is dismissed. The learned Subordinate Judge is to proceed with the enquiry under Order 20, Rule 18, CPC to ascertain whether the properties are joint family properties and liable to be included in the hotchpot and determine the shares of the parties In the circumstances of the case, there shall be no order as to costs. C. R. No. 257/83 allowed & C. R. No. 421/83 dismissed. Final Result : Allowed