Bimal Chandra Behara v. Sasadhar Ghosh — 1994 DIGILAW 194 (CAL)

Judgment 1. THIS Second Miscellaneous Appeal which is heard along with an application under Section 115 of the Code of civil Procedure in the alternative, is directed against an appellate judgment and order dated 6th April, 1987 passed by the learned Additional District judge 4th Court, Midnapore in Misc. Appeal No 109 of 1986 which confirmed in turn the order dated 28th June, 1986 passed by the learned assistant District Judge, 2nd Court Midnapore in Title Suit No 1 of 1976. The learned Assistant District Judge. 2nd Court. Midnapore held that the application for pre-emption of the suit property filed under Section 4 of the partition Act by the defendant No 2 appellant in respect of that undivided portion of the suit property which stood transferred to the plaintiff opposite party, should be dismissed. This application was obviously filed after the preliminary decree in a suit for partition. The claim of the defendant No 2 petitioner before the learned Assistant District Judge 2nd Court. Midnapore was to the effect that the suit property an undivided family dwelling house in which the defendant No 2, Bimal Chandra Behara laid his claim as a member of the family. The plaintiff, Sashadhar Ghosh who is admittedly a stranger purchaser by filling written objections contested the claim for pre-emption. The suit was decreed under preliminary form on 22. 6. 81 and when the suit was about to reach the stage of final decree, this application for pre-emption was filed. Admittedly the position is that the plaintiff has been found to be a co-sharer of the suit property by purchase to the extent of 12 annas share and the remaining 4 annas belong to defendant No 2 appellant, Bimal Chandra Behara. Originally the suit property belonged to one Hepa @ Nepa Behara and on his death, the same devolved on his sons Sajani and Rajani. Rajani died before the commencement of the Hindu Succession Act, 1956 leaving behind his son bhusan and his daughter Sindhu Bala. Rabi is the son of Sindhu Bala. Bhusan died living no wife or child and so his interest sr. The suit property devolved on Rabi his sister's son. Kalipada (defendant No 1) and Subai inherited the share of Sajani in equal shares having l/4th undivided share each. The share of Subal devolved on his death of his widow Lexmi Rani and daughter Dall. Bhusan died living no wife or child and so his interest sr. The suit property devolved on Rabi his sister's son. Kalipada (defendant No 1) and Subai inherited the share of Sajani in equal shares having l/4th undivided share each. The share of Subal devolved on his death of his widow Lexmi Rani and daughter Dall. During revisional settlement operation Kalipada being the eldest male member and karta of the family used to look after the R. S. operation and taking advantage of the same, Kalipada got the suit property recorded in his name to the extent of 16 annas in the R. S. Record of rights. Rabi, Laxmi Rani and Dall who inherited undivided 12 annas interest in the suit property sold the said property to the plaintiff by a registered sale deed dated 16. 8. 74. Accordingly the plaintiff filed the suit for partition claiming 12 annas share in the suit property. It is needless to go in to the defence of the present defendant No 2 appellant about Sajani and Bhusan having lost their interest by way of abandonment and defendant No 1 Kalipada having effected settlement of the suit property to one Satyacharan Das by a registered sale deed dated 31. 1. 62 and satyacharan being placed in possession of the same. Satyacharan again transferred the suit property to one Purna Chandra Sahoo and thereafter bimal, the son of Kalipada purchased the same subsequently from Purna chandra Sahoo. The case of the defendant No 2, Bimal is that he is the exclusive owner of the of the suit property, which was negatived by the trial court. The lower appellate court also confirmed the said finding by way of a regular appeal. The case of Bimal in the petition for pre-emption is that the property in suit is an undivided family dwelling house and he is the exclusive owner of the same. The mud-build thatched house standing on the house property was constructed by Kalipada, his father. 2. THE trial court adverted to essential ingredients of Section 4 of the partition Act : 1) that the house must be a dwelling house. 2) that it must belong to an undivided family, 3) that a share of such a dwelling house must have been transferred to a person who is a stranger to the family and 4) That the transferee sues for partition of the house. 2) that it must belong to an undivided family, 3) that a share of such a dwelling house must have been transferred to a person who is a stranger to the family and 4) That the transferee sues for partition of the house. The learned trial judge, however, held that if the dwelling house in question is not owned by an undivided family, even a stranger who is a transferee can ask for his share by partition. The trial judge following the decision, in 75 CWN 195 in the case of Surendra Nath us. Ram Chandra, was of the opinion that the proper stage for making an application under section 4 of the Partition Act would be at the stage of Final decree for partition when by way of appointment of a commissioner, partition by metes and bounds will be made. He also held following the decision in the case of Satyanarayan Chakraborty vs. Biswanath Pal reported in 74 CWN 871 that an application under Section 4 of the Partition Act is maintainable even at the stage of final decree of the suit provided the stranger purchaser has not obtained possession of his dwelling house by way of his allotment in execution of the decree. He was farther of the view that until the dwelling house is completely alienated to a stranger it is still an undivided dwelling house within the meaning of Section 4 of Partition Act. The trial court, however, was of the view that it cannot be said that it retained the character of an undivided family bouse. The father of the present petitioner, Kalipada transferred the suit property by a registered sale deed dated 31.1.62 to Satyacharan Das and on delivery of Khas possession to him and since his purchase, Satyacharan was in possession of the suit property. Satyacharan while in possession, sold the suit property by a registered Kobala and delivered his Khas possession in favour of Purna chandra Sahoo while in possession Purna again sold the suit property to bimal, the present appellant petitioner by a registered sale deed dated 8. 7. 68 and he delivered the Khas possession in favour of Bimal. 3. THE defendant No. 2, present applicant Bimal admitted in the court below that when his father sold it out, he went over and stayed with his wit at different place. 7. 68 and he delivered the Khas possession in favour of Bimal. 3. THE defendant No. 2, present applicant Bimal admitted in the court below that when his father sold it out, he went over and stayed with his wit at different place. He, however, contended that the transaction between satyacharan and Purna in respect of the suit property was a loan in substance and the suit property remained an undivided family dwelling house. The trial Court commented it to be a new case built up in support of the defendant No 2 appellant's case far pre-emption. Since according to the trial court emphasis is to be given on the undivided character of the property but the evidence on the other hand showed to the contrary that the suit property lost its undivided character long before and even though the family Of the appellant petitioner was a family governed by Dayabhaga school of Hindu Law, during the life time of his father, he could not be said to be a co-sharer in respect of the property though he was a member of the family of his father. On the face of his subsequent case that he had an entry in the suit property by way of a subsequent purchase from Purna chandra Sahse after a lapse of 6/7 years he could not taker as purchaser of the share by a member of an undivided family and from that it could not be inferred that the suit property retained its character as an undivided family house at the relevant point of time when the defendant No 2 appellant got in to possession in respect of the house. Since the appellant left the house and stayed in the house of his father's sister for 6/7 years when his father sold out the suit property and placed Satyacharan Das in the suit property, this evidently showed that the appellant petitioner had no entry in the suit house and he had also no authority to enter into the house for 6/7 years. His father sold the suit property to Satyacharan Das in 1962 and the petitioner purchased the same from Purna Chandra Sahoo in 1968. Even from his written statement it could be inferred that the undivided character of the family dwelling house was lost. His father sold the suit property to Satyacharan Das in 1962 and the petitioner purchased the same from Purna Chandra Sahoo in 1968. Even from his written statement it could be inferred that the undivided character of the family dwelling house was lost. He even inducted a Muslim as a tenant in the suit property which was not natural, if he really wanted to treat the house in question as an undivided family dwelling house of a Hindu family. The trial court accordingly held in one voice that there was no existence of an undivided family and the property did not retain the character of an undivided family house and there was no evidence that the co-sharers intended to use the property as an undivided family dwelling house but on the contrary the circumstances showed that they gave up the idea of using the house as an undivided family dwelling house long before. The trial court accordingly rejected the application of defendant No. 2. appellant under Section 4 of the Partition Act for preemption of the property in respect of the 12 annas interest held by the plaintiff. 4. IT is against this judgment and order that the appellant preferred an appeal before the learned District Judge being Misc. Appeal No 109 of 1986 which came to be heard and disposed of by the learned Additional District judge, 4th Court, Midnapore who by a judgment and order dated 6th April, 1987 held that the appeal is not maintainable in view of the provisions of section 8 of the Partition Act. The learned lower appellate Judge recorded a submission made by the learned Advocates appearing on behalf of both the parties that the appeal should be disposed of on the preliminary objection taken by respondents as regards the maintainability of the appeal instead of entering in to the merits of the appeal. The learned lower appellate Judge recorded a submission made by the learned Advocates appearing on behalf of both the parties that the appeal should be disposed of on the preliminary objection taken by respondents as regards the maintainability of the appeal instead of entering in to the merits of the appeal. the learned lower appellate Judge held on a construction of Section 8 of the Partition Act that an order dismissing an application under section 4 of the Partition Act was not an order for sale made under Section 4 of the Partition Act and as such the order of dismissed of an application for pre-emption under section 4 of the partition Act shall not be deemed to be a "decree" within the meaning of section 2 of the Code of Civil Procedure and no appeal as such did lie against the order of dismissal of the application under Section 4 of the partition Act. The lower appellate court took into consideration the decision of our court reported in Bhuban Mohan Guha vs. Brojendra Chandra Ghose reported in 45 CWN 74 and Nitish Chandra and Anr. vs. Promode Kumar and ors. reported in AIR 1953 Calcutta 18. The learned Advocate appearing for the appellant also conceded before the lower appellate court that in view of the decisions referred to on behalf of the respondent the appeal was not maintainable and in that view of the matter, the lower appellate court did not enter into the merits of the appeal. Where a share of a dwelling house belonging to an undivided family has been transferred to a person who is not a member of such family, and such transferee sues for partition, the court shall, if any member of the family being a shareholder, shall undertake to buy the share of such transferee, make a valuation of such share in such manner as it thinks fit, and direct the sale of such share to such shareholder and may give all necessary and proper directions in that behalf. 5. 5. THE appellant contended before us that both the trial court as well as the appellate court have taken an erroneous view of the fact and law involved in the case and that in the fitness of things the present appeal should be allowed with a direction upon the trial court to allow the application under Section 4 of the Partition Act as filed by the present appellant. 6. MR. Swadesh Bhusan Bhunia, Senior Advocate appearing for the appellant contended in the first place that the decision in Bhuban Mohan guha and Anr. vs. Brojendra Chandra Ghosh reported in 45 CWN page 74 is in respect of a rejection of an application under Section 4 of the Partition act after the preliminary decree which was challenged before the final decree was passed. It was held in the said case that rejection of an application for preemption under Section 4 of the Partition Act could be challenged in an appeal against the final decree. Nonetheless the rejection of an application under Section 4 was challenged in appeal and the appeal was ultimately allowed. It was held in the said decision that an order rejecting an application under Section 4 of the Partition Act is not a decree appealable as such, so that in a case where the order is made after the preliminary decree it can be challenged in an appeal from the final degree. and if the said appeal is within time from the date of such decree it cannot be held to be time barred in so far as the order under Section 4 of the partition Act is concerned. Further more on a question under Section 4 of the Partition Act the matter is to be considered as to whether the purchaser was a member of the undivided family to which the dwelling house belonged at the time of the possession. The fact that he was a member of the family to which the property originally belonged is wholly irrelevant. The right conferred by Section 4 is not lost merely by reason of the fact that the purchaser has obtained possession but only if the possession has been such that the purchaser may be regarded as having become a member of the family. 7. IN AIR 1953 Calcutta 18, Nitish Chandra and Anr. vs. Promode Kumar and Ors. The right conferred by Section 4 is not lost merely by reason of the fact that the purchaser has obtained possession but only if the possession has been such that the purchaser may be regarded as having become a member of the family. 7. IN AIR 1953 Calcutta 18, Nitish Chandra and Anr. vs. Promode Kumar and Ors. a Division Bench of the Calcutta High Court held that a case refusing an application under section 3 of the Partition Act cannot be said to be a "decree" within the meaning of Section 8 and therefore there would be no appeal against the order. Besides one of the Judges in Nitish chandra and Anr. vs. Promode Kumar and Ors. (AIR 1953 Calcutta 18) R. P. Mookherjee, J referred to his own decision in Manik Lal Dutt and Ors. vs. Pulin Behari Pal and Ors. reported in AIR 1950 Calcutta 431 which was also a case under Section 3 of the Partition Act after preliminary decree. The munsif allowed the sale but on appeal District Judge rejected it. Against this order an appeal was preferred before this Hon'ble High court and the high Court allowed it. Therefore, Mr. Bhunia argued that it could not be said that no appeal did lie against such orders in as much as the essential distinction between Section 2 and 3 on the one hand and Section 4 on the other read with Section 44 of the Transfer of the Property Act has been overlooked and it is a judgment per incurium. 8. MR. Bhunia further pointed out before us a Division Bench judgment of this Hon'ble Court in Ganga Dutta Murarka vs. Probhabati Debt reported in 60 CWN 871 where an appeal under Section 4 was allowed and an appeal was preferred by the purchaser. The objection was raised that since the order for sale on an application under Section 8 was deemed to be a "decree" the court hearing Miscellaneous Appeal could not hear it. The division Bench held that it is immaterial that the order for sale under section 4 is an order or decree and the order under Section 4 might be classified as an appeal from criminal degree or appeal from original order Mr. Bhunia further pointed out the decision in Krishnadhan Chatterjee vs. asit Kumar Mitra and Ors. reported in 1977 (1) CLJ 30. Bhunia further pointed out the decision in Krishnadhan Chatterjee vs. asit Kumar Mitra and Ors. reported in 1977 (1) CLJ 30. Against the decision of the District Judge holding inter alia that the First Appeal is to be not maintainable as the memo of appeal did not accompany the certified copy of the decree it was contended that since the order under section 4 is itself a decree, a copy of the decree need not be filed with the memo of appeal. It was further contended that as no order for sold was passed, It was improper to ask the Commissioner to value the property. The appeal was ultimately allowed and the case was remanded. A point is to be noted in this context that though the order for sale was not passed, the order was itself passed after a preliminary decree and the preliminary decree being made final, the appeal was held to be maintainable. Mr. Bhunia drew our attention to the 1976 Amendment in the Code of Civil Procedure Code which was mainly drafted for shortening the procedural lacunae. Mr. Bhunia construed that on a combined reading of section 105 of the Code of Civil Procedure and order 43 Rule (1a) of the code of Civil procedure it appears that the order rejecting the application under section 4 could not be challenged except in an appeal against the final decree and in the present stage, it could be challenged only by way of revision. Considering the nature of enquiry under Section 4 namely whether it is a dwelling house an elaborate enquiry could only be made in an appeal and not in revision which is restricted to facts only about exercise of Jurisdiction. 9. MR. Bhunia argued that a treasonable inter pretation of the term "decree" under Section 2 (2) of the Code of Civil Procedure read with amendment under Section 2 (a) conclusively determines the rights of the parties, whether there may be a decree, preliminary or final. An order rejecting an application under Section 4 conclusively determines the rights of the applicant which merges in preliminary decree as such and the decree was within the meaning of Section 8, an appealable one. 10. An order rejecting an application under Section 4 conclusively determines the rights of the applicant which merges in preliminary decree as such and the decree was within the meaning of Section 8, an appealable one. 10. SECTION 8 of the Partition Act was a deeming provision, the statute having done so the court cannot stop when it comes to inevitable corollaris, that is a refusal of a sale which is the other side of the coin of allowing the sale. The meaning of a deeming provision cannot be restrictive so much so as to conclude rejection of a hypothesis unreasonable which runs to an absurd extent. It was treated as an omission case. An application under section 4 is also in the nature of allotment of share of the joint property. Rejection of the application under Section 4 amounts to denial of the share. Hence according to Mr. Bhuya it is also a decree. Mr. Bhunia further argued by citing the decision reported in bholanath Karmakar vs. Sailendra Nath Pramanik 88 CWN 228 that where as in the former an appeal was preferred to the lower appellate court impugning rejection of an application under section 4 and a Second Appeal by the defendant was entertained by the High Court, Section 4 of the partition Act should be liberally construed and irrespective of whether the transferee is entitled to a share in the family dwelling by virtue of his purchase the other co-sharer family members are entitled to claim the benefit of preemption under the said section. A party in a Partition suit, whether category as a plaintiff or defendant, is at the same time a plaintiff as well as a defendant and this dual capacity of a party in a partition suit does not preclude even a defendant who claims a share in the dwelling house from being treated as plaintiff for the purpose of section 4 of the Partition Act. In the facts of the said case the stranger purchaser had himself filed an application in the suit asserting his right of partition as a co-sharer and sought a further relief of purchasing the share of the plaintiff on the ground that he was the major shareholder and such a fact brought the case squarely within the scope of Section 4 of the Partition Act. Even on the principle enunciated in Netai Das vs. Hari Das reported in ILR (1967) 2 Calcutta 301, it cannot be contended that the stranger purchaser being a defendant in a suit for partition, the provisions of Section 4 of the partition Act can have no application. The defendant's application could not have been treated as an application under Section 2 of the Partition Act because the defendant had not asked for an open sale but only claimed that by virtue of his position or being he major co-shareholder he should be allowed to purchase the share of the plaintiff as the property was not otherwise partible according to shares. Such a prayer not being a prayer within the meaning of Section 2 of the Partition Act, Section 3 thereof could not certainly be invoked. Though the plaintiff is not entitled to purchase the share of the defendant under Section 3, he is entitled to preempt the said share under Section 4. Such preemption is to be effected on a valuation to be made by the court and such valuation should be made in a manner which should be equitable to both the pre emptor and the stranger purchaser. 11. MR. Bhunia cited the decision in the Reliable Water Supply Service of India Put Ltd. vs. The Union of India and Ors. reported in AIR 1971 SC 2083 for the proposition that the High Court can convert an appeal into a revision when the court whose order is appealed against has illegally exercised its jurisdiction. 12. MR. Bhunia further cited before us the decision in Shankar Ram chandra Abhyankar vs. Krishnaji Dattatraya Bapat reported in AIR 1970 sc 1 for the proposition that the revisional jurisdiction is always a part and parcel of the appellate jurisdiction of the High Court that is what was said in Nagendra Nath Dey vs. Suresh Chandra Dey reported in 59 Indian appeals 283 at page 287 AIR 1932 Privy Council 165 at page 167. If there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted, it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court. If there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted, it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court. The refusal to grant relief in such circumstances would be in consonance with the anxiety of the court to prevent abuse of process as also to respect and accord finality to its own decisions. Mr. Bhunia further cited the decision in Mrs. Leena Nandi vs. the state of West Bengal Board of Secondary Education and Ors. for the proposition that no authority can be allowed to exercise the discretionary power in an arbitrary manner the proposition is too well-known to be refuted. 13. MR. Bhunia further cited the decision in Tide Water Oil Co. vs. K. D. Banerjee @ Kalidas Banerjee reported in 86 CWN 456 at page 460=air 1982 Calcutta 127 where it was held that an admission of a lawyer on a wrong point of law or on a misapprehension of the decision of law, cannot bind the client. 14. CITING the decision in Bholanath Karmakar vs Sailendra Nath Pramanik reported in 88 CWN 228 paragraph 10 at page 233 and 234 Mr. Bhunia argued that a party in a partition suit whether a plaintiff or a defendant, can be sued at the same time as the plaintiff as well as the defendant. Hence both the plaintiff and the defendant belong to the same class irrespective of his possession whether he is a plaintiff or a defendant and must be treated equally in the eye of law within the meaning of Article 14 of the Constitution. Mr. Bhunia further argued that if the defendant's application under Section A is allowed then the plaintiff can prefer an appeal under Section 8 of the Partition Act but if the defendant's application under Section 4 is rejected he cannot prefer an appeal under section 8. This amounts to treating plaintiff and defendant unequally although they belong to the same class and is in utter violation of Article 14 and would render Section 8 of the Partition Act unconstitutional. Mr. This amounts to treating plaintiff and defendant unequally although they belong to the same class and is in utter violation of Article 14 and would render Section 8 of the Partition Act unconstitutional. Mr. Bhunia further argued that if there is no reasonable norm for giving right of appeal to the stranger purchaser and denying that right to appeal to the original co-sharers of the dwelling house, the prayer for pre-emption under section 4 stands nugatory. Mr. Bhunia contended that the cardinal principle of interpretation is to interpret a statute in such a manner as would make it constitutional. He referred to in this context the decision in 1992 (2) SCO 36 para 4. Referring Websters Dictionary Entry No 10 a he contended that the word "for" does not necessarily mean "allowing", since "for" also mean "as regards" "in respect to" "concerning". In that case order "for" sale in Section 8 would mean an order as regards sale. as in respect to sale or concerning sale, which means both "allowing" or "rejecting". If the court adopts this meaning, then Section 8 would be free from the vice of violation of Article ld4 and would be treated as constitutional. This interpretation solves the problem of conflict between the special law and the general law. Section 8 becomes part of the general law. Accordingly we should hold that Section covers equally such cases where an application under section 4 is allowed as well as rejected. Mr. Bhunia further contended that no analogy can be drawn between order 9 Rule 13 of Code of Civil Procedure and Section 8 of the Partition act. In order 9 Rule 13 Code of Civil Procedure there is an exparte decree at the base. If the Application for setting aside the exparte decree is allowed, the original suit is revived. There is no appeal under order 43 Rule 1 (d) of the Code of Civil Procedure as the parties can proceed further with the suit and there is no harm done to anybody but if the application is rejected, the defendant can file an appeal under order 43 Rule 1 (d) or prefer an appeal straightway against the exparte decree arid if a regular appeal is preferred, an application under order 43 Rule 1 (d) shall not lie. But in the Partition Act there is no earlier exparte pre-emption order at the base, to set aside which itself is the basic order. If the pre-emption is allowed there is no question of revival of an earlier proceeding and the stranger purchaser can prefer an appeal on facts. If the application for pre-emption is rejected there is no appeal under Section 8 of the Partition Act on facts here as in the case of rejection of procedure under order 9 Rule 13 C. P. C. there is both an appeal on facts under order 43 Rule 1 (d) and also a regular appeal on facts. Thus rejection of an application under order 9 Rule 13 C. P. C, unlike one under Section 4 of the Partition Act are two separate and distinguishable spheres. The legislature provides for two different remedies and is reasonable. The case order 43 Rule 1 (d) of the code of Civil Procedure does not attract Article 14 of the Constitution. Mr. Bhunia further argued that an order for a sale ultimately culminates in a sale. 15. MR. Bhunia thus argued that an adjudication of saleability of the share of the stranger purchaser is involved in an application under Section 4 of the Partition Act. On the question whether an order of rejection is to be treated as a decree, Mr. Bhunia submitted that we should not go by the finality test because every order even though it is one of rejection merges with the preliminary decree or the final decree. He cited the decision in this context reported in AIR 1981 SC 1786 , Shah Babulal Khimji vs. Jayaben D. Kania and Anr. that judgment however, was mainly confined to the question as to what judgment is and what are the tests to be determined as to whether an order passed by a trial Judge is said to be a judgment within the meaning of the Clause 15 of Letters Patent of the Bombay High Court. It was held in the facts of the said case that an order of the trial Judge refusing to appoint a receiver or to grant an interim injunction is also a judgment and hence appealable. It was held in the facts of the said case that an order of the trial Judge refusing to appoint a receiver or to grant an interim injunction is also a judgment and hence appealable. A decision is which effects merits of the question between the parties by determining some right or liability and the order determining the right or liability may be final, preliminary or interlocutory but the determination must be final or one which decided the part of the controversy finally leaving other matters to be deciding later on must satisfy the tests of a judgment. In Chandi Charan Saha vs. Jnanendra nath Bhattacharjee. 29 CLJ 225=air 1919 Calcutta 667 Sir Ashutosh mookherjee, J. in his leading judgment modified the strict rule of interpretation of a judgment laid down by Sir Couch, Chief Justice and pointed out that the words "merits of the question between the parties by determining a right of liability", were not to be confined or restricted to the controversy in a suit itself but could take within its fold any right involved in any application which puts an end to the suit or the proceeding. The supreme Court held in Shah Babulal Khimji vs. Jayaben (ibid) that if any order has the effect of finally determining any controversy forming the subject matter of the suit itself or any part thereof or the same affects the question of Court's jurisdiction or the question of limitation such an order will normally constitute judgment within the meaning of Clause 15 of the letters Patent. But then an order winch is appealable under the Code or under any other statute because appealable as the statute confers a right on the litigant to prefer an appeal against such an order. Such an order may or may not be appealable as a judgment under Clause 15 of the Letters patent. An order which may be appealable under Clause 15 of the Letters patent as a judgment becomes appealable as Letters Patent confers on the litigant a right of appeal against such an order as a judgment. An order appealable under the Code of Civil Procedure. The right of appeal is in a creature of statute. A litigant does not have an inherent right to prefer an appeal against an order unless such a right is conferred on the litigant by law. An order appealable under the Code of Civil Procedure. The right of appeal is in a creature of statute. A litigant does not have an inherent right to prefer an appeal against an order unless such a right is conferred on the litigant by law. Certain orders become appealable under the Code as the Code makes such orders appealable. Other statutes may confer a right or appeal in respect of any order under the statute. 16. MR. Bhunia further contended by citing the Full Bench decision in pallamreddy Masthan Reddy and Ors. reported in AIR 1993 Andhra Pradesh 297 that the change brought about by Amendment Act, 1976 of the Code of Civil Procedure is essentially procedural and the rights and remedies of the parties are in no way jeopardised. It is axiomatic that a party can claim no right to have the determination of the claim petition in particular way. If that be the true position in law and if it was held that the claim petition should be governed by the amended rules, we fail to appreciate as to how this Full Bench Judgment of the Andhra Pradesh high Court has any reference to the facts and circumstances of the present case.Mr. Bhunia further cited before us a decision reported in 1991 (2)CLJ 321 , Indrajmal Shyamsukha and Ors. vs. Bhagat Singh Dugar and Ors. where it was held that the expressions "judgment" "order" decision" or "decree'" are very often used synonymously. Going by the definition in the code of Civil Procedure, Section 2, while decree or order is the formal expression of an adjudication or decision, judgment is the statement of the grounds or reasons for the adjudication or decision. But otherwise the expression judgment would include any decision on a matter in dispute whether reasoned or unreasoned. There also the court had to consider the question as to whether a particular order is appealable under clause 15 of the Letters Patent. 17. MR. Bhunia finally argued that a deeming provision cannot be interpreted in a manner so as to avoid the inevitable corollaries. It is for this court to iron out the creases by removing these doubts and anomalies and he referred to in this context the decision reported in AIR 1981 SC 463 , State of Karnataka vs. Hansa Corporation. Mr. Bhunia contended that there is always a presumption of constitutionality of a statute. It is for this court to iron out the creases by removing these doubts and anomalies and he referred to in this context the decision reported in AIR 1981 SC 463 , State of Karnataka vs. Hansa Corporation. Mr. Bhunia contended that there is always a presumption of constitutionality of a statute. If the language is rather not clear and precise, as it ought to be, the attempt of the court is to ascertain the intention of the legislature and put that construction which would lean in favour of the constitutionality unless such construction is wholly untenable However, where one has to look at a section not very well drafted but the object behind the legislation and the purpose of enacting the same is clearly discernible, the court cannot hold its hand and blame the draftsman and chart an easy course of striking down the statute. In such a situation the court should be guided by a creative approach to ascertain what was intended to be done by the legislature in enacting the legislation and so construe it as to give force and life to the intention of the legislature. This is not charting any hazardous course but is amply borne out by an observation worth reproducing in extenso in Seaford Court Estates Ltd. vs. Asher. 1949 (2) All England reporter 155 at page 164. "a Judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out. He must then do as they would have done. A Judge must not alter the material of which the Act is woven, but be can and should iron out the creases". He contended that we should ourselves iron out the creases and remove the anomaly in interpreting the law in some such manner that irrespective of the order of sale being allowed or negatived by the court we should read into the statute a right of appeal. 18. MR. Bhunia referred to the decision reported in AIR 1958 Calcutta 177, Probhat Kumar Dutt vs. Rammohan Dutt and Ors. and contended that the power of the court to direct a sale to a suit for partition is limited to the cases provided for in the Partition Act. 18. MR. Bhunia referred to the decision reported in AIR 1958 Calcutta 177, Probhat Kumar Dutt vs. Rammohan Dutt and Ors. and contended that the power of the court to direct a sale to a suit for partition is limited to the cases provided for in the Partition Act. However, the court is entitled to dismiss those parties, who do not want to keep the properties joint, with compensation and allow others to retain the properties joint. In case of partition when a property is allotted to one co sharer exclusively though it involves a transfer of interests or shares of the other co-sharer to whom the property is allotted, such allotment is never considered to be a sale by one co-sharer to another Still in such a case there is scope of an appeal treating the allotment as a "decree" where the was even an appeal for an appellate decree allowed by law The plaintiff filed the suit for declaration as title as a co-sharer along with a prayer for pre-emption under Section 4 of the Partition Act. The point of consideration was whether the plaintiff is entitled to claim the pre-emption under Section 4 of the Partition Act, where the stranger purchaser has neither sued for a partition nor prayed for partition and separate allotment to the share purchased by him. However, the point for adjudication in the present appeal was not agitated in the said case. In 95 CWN 795, Madhav Mohan Ghosh vs. Ghanteswar Ghosh and Ors. it was a revisional application where the only point for consideration was whether an application for pre-emption under Section 4 of the Partition Act was maintainable at the stage of execution or not. The point involved in the present appeal was neither raised non considered in the said case. Mr. Bhunia ultimately referred to a decision reported in 56 CWN 375, Nitish chandra Ghosh and Ors. vs. Promode Kumar Ghosh and Ors. Where the memo of appeal was treated to be a petition of revision, Mr. Bhunia conceded that there was no prayer for conversion to a revision made before the lower appellate court and the appeal being held to be incompetent was dismissed mainly on the basis of concession of a learned Advocate. Mr. vs. Promode Kumar Ghosh and Ors. Where the memo of appeal was treated to be a petition of revision, Mr. Bhunia conceded that there was no prayer for conversion to a revision made before the lower appellate court and the appeal being held to be incompetent was dismissed mainly on the basis of concession of a learned Advocate. Mr. P. K. Samanta appearing on behalf of the respondent contended on the preliminary question of maintainability of the appeal, a miscellaneous appeal is not maintainable under Section 104 (2) of the Code of Civil Procedure. The said section specifically bars appeal from any order passed in appeal. Since no satisfactory answer could be given on the question by Mr. Bhunia, the appeal as such is liable to be dismissed. 19. MR. Samanta further contended before us that the legality and propriety of the order of dismissal of the appeal on the ground that no appeal lies against an order refusing a sale under Section 4 of the Partition act has not been properly answered by the appellant. The lower appellate court relief upon a decision reported] in 45 CWN 74, Bhuhan Mohan Guha vs. Brojendra Chandra Ghosh which was affirmed in a case reported in a case reported in 56 CWN 375 (ibid), AIR 1929 Calcutta 269 (ibid) is also a similar decision on the point. The ratio decidendi on the relevant point at issue is binding as such. The order of the lower appellate court does not suffer from any legal infirmity or any jurisdiction error. Hence this Hon'ble court cannot interfere with the order under appeal either in a Second miscellaneous Appeal or even in its revisional jurisdiction. 20. MR. Samanta further contended before us with regard to scheme of the provision contained in Sections 4 and 8 of the Partition Act that an application under Section 4 of the Partition Act can be filed by a party both before or after the preliminary decree. If such an application is filed before the preliminary decree and the same is allowed, the stranger purchaser suffers from immediate deprivation of his purchased property and his interest ceases. He thereafter cannot proceed with the suit any further. For that reason the legislature in its wisdom has provided an immediate remedy by way of an appeal under Section 8 of the Partition Act. He thereafter cannot proceed with the suit any further. For that reason the legislature in its wisdom has provided an immediate remedy by way of an appeal under Section 8 of the Partition Act. On the other hand if the application of the co sharer is rejected, he being a co-sharer, can proceed further with the suit and the order of rejection merges with the preliminary decree from which an appeal is competent. Stranger purchaser suffers the same fate if the application filed after the preliminary degree is allowed. But if the co-sharer's application under Section 4 of the partition Act filed after the preliminary decree is rejected, he can avail of the opportunity to make submissions against the said order of rejection at the time of hearing for the final decree from which a regular First Appeal lies. In the said appeal the said order of rejection is amenable to challenge under section 105 of the Code of Civil Procedure. On the question of alleged discrimination as pointed out by Mr. Bhunia, Mr. Samanta contended that only the co-sharers can file an application under section 4 of the Partition Act. Section 8 of the Partition act, provides for appeal against any order "for" sale under amongst other, section 4 of the Act, being a decree within the meaning of Section 2 (2) of the Code of Civil Procedure. 21. BY reason of providing for a right of appeal only against any order for sale, it cannot be held that the legislature in its wisdom has made any discrimination. The nature and effect of the order for sale and the order refusing sale are completely different. The said two orders cannot stand at par in so far as the different remedies are provided therefor. 22. THE Code of Civil Procedure has provided remedy by way of appeal under Section 104 and Order 43 Rule 1 against certain order of rejection in clauses (c) (d), (ja) (k) (l), (m) (n) (na) and (t) of the Rule 1 of order 43. Appeal against orders granting or allowing applications in clause (w) and against orders "either granting or fusing" in clauses (f), (i), (j) (p), (q) (r)and (s) etc. So the provision of Section 8 of the Partition Act cannot be assailed on the ground of discrimination. There is no ambiguity in the language of the said Section. Appeal against orders granting or allowing applications in clause (w) and against orders "either granting or fusing" in clauses (f), (i), (j) (p), (q) (r)and (s) etc. So the provision of Section 8 of the Partition Act cannot be assailed on the ground of discrimination. There is no ambiguity in the language of the said Section. The legislature in its wisdom consciously provided a remedy to the stranger purchaser against an order for sale under Section 4 of the Partition Act, by way of an appeal. It has been held by this Hon'ble Court in 75 CWN 195, Surendra Nath vs. Ram Chandra that the proper stage for making the application under section 4 of the Partition Act would be when an application for final decree for partition after appointment of Commissioner to effect partition by metes and bounds has been made. 23. IN AIR 1970 SC 1 , Shankar Ramchandra Abhyankar vs. Krishnaji Dattatraya Bapat there was an appeal against the judgment on an application under Article 226 and 227 of the Constitution of India arising out of an order passed on the revisional application under Section 115a of the Code of Civil Procedure against the appellate decree affirming the decree passed by the trial court for eviction. The point for consideration was whether a writ petition lies against the order passed in revision against the appellate decree. It was held that the writ petition was not maintainable as the order was passed in revision against the appellate decree. As regards the question of applicability of Section 115a of the Code regarding the power of revision of the District Court, we can hold that it had no manner of application in the present case as there was no prayer for conversion of the appeal in to revision before the learned lower appellate court and on the contrary, the learned Advocate for the appellant conceded that the appeal was not maintainable. The present appeal does not satisfy the tests of Section 115 of the Code of Civil Procedure as the lower appellate court relied on a decision of the learned Division Bench of this hon'ble Court which really decided the ratio decided on the point at issue. We cannot consider the prayer for conversion of this appeal in to a revision and the appeal which has also been held to be not maintainable is liable to be dismissed. 24. We cannot consider the prayer for conversion of this appeal in to a revision and the appeal which has also been held to be not maintainable is liable to be dismissed. 24. INDEED it has been contended that he parties are not bound by the wrong admission of law by a. lawyer In the present case the lawyer accepted the proposition of law laid down by the learned Division Bench of this Hon'ble Court which has not as yet been overruled. On the contrary there are similar judgments on the same line as laid down on the identical proposition. So we cannot hold the concession to be wrong admission on the question of law by a lawyer. In 74 CWN 871 Satyanarayan Chakraborty vs. Biswanath Pal, the petitioner himself admitted that the particular order constituted termination. It was held that it was not a question of fact but one of law. As such the admission was not binding. In 86 CWN 456, Tide water Oil Co. Ltd. vs. K. D. Banerjee @ Kalidas Banerjee. the learned advocate did not argue the point regarding the provisions of Section 13 (1) (k) of the Premises Act. It was held that the plaintiff would not be bound by such act of the lawyer. The same view was held in the decision reported in air 1982 Calcutta 127 (ibid. In 72 CWN 299, Gadadhar Ghosh vs. Janaki nath Ghosh it was an appeal from the original decree. The Hon'ble High court considered the scope of Sections 2, 3 and 6 of the Partition Act to decide whether the court has inherent power to direct sale of properties in a partition suit except under the provisions of the Partition Act. The other question that arose was whether a sale under Section 2 of the Partition act, could be confined within the co-sharers. The point at issue in the present appeal was neither canvassed nor decided in the said decision. In 1991 Supp. (1) SCC 82 at page 98 it was an appeal against the decision passed on the writ petition where certain statutory provisions and notifications issued were challenged. The point at issue in the present appeal was neither canvassed nor decided in the said decision. In 1991 Supp. (1) SCC 82 at page 98 it was an appeal against the decision passed on the writ petition where certain statutory provisions and notifications issued were challenged. It was held by the Supreme Court in the said case that in the absence of any repugnancy or inconsistency or absurdity we must read the principal Act (Act 22 of 1981) as if the new provisions have been written in to the principal Act with pen and ink and the old words have been penned through. This was mainly on the proposition of legislation by incorporation. In 1991 (2) SCC 87 which was an appeal against the decision of Delhi High Court on the issue of landlord's right to evict tenant under Section 14b of the Delhi Rent Control Act, 1958, the amendment Act in Sec. 14b was introduced without corresponding change to the form of summons. The Supreme Court held that the allied unamended provisions of the Act should be given purposeful construction to be implemented in the objects and purposes of amended Section 14b to 14d of the Delhi Rent Control Act, if necessary by supplying words. The above decision has no relevance to the point of controversy in the present case. In 1977 (1) CLJ 30, Krishnadhan Chatterjee vs. Ajit Kumar Mitra and ors., which was a Second Appeal arising out of the appellate decree against the final decree for partition, the application under Sec. 4 of the Partition act was filed before the preliminary decree. The order passed in the said application merged in the preliminary decree. The final decree was challenged in appeal which was dismissed. Thereafter a second appeal was filed. When second appeal was filed, a point was raised whether an appeal against the order for sale under Section 4 of the Partition Act without accompanying a certified copy of the decree need not be drawn up. If drawn up a certified copy thereof must be accompanying the memorandum of appeal. 25. IN Probhat Kumar Dutt vs. Rammohan Dutt and Ors. reported in AIR 1956 Calcutta 177 which was a judgment in a suit for partition, a learned single Judge of this court held that apart from the Partition Act the court has no power to direct sale of property in partition suit. 25. IN Probhat Kumar Dutt vs. Rammohan Dutt and Ors. reported in AIR 1956 Calcutta 177 which was a judgment in a suit for partition, a learned single Judge of this court held that apart from the Partition Act the court has no power to direct sale of property in partition suit. The allotment of property in a partition suit involving (transfer of interest is never considered to be a sale. 26. IN Manik Lal Dutt and Ors. Vs. Pulin Behari Pal and Ors. reported in air 1950 Calcutta 431 which was a second appeal arising out of a suit for partition, the point at issue in the first appeal was whether the application under Section 3 of the Partition Act as made by the defendants for purchase of the plaintiffs share is maintainable in law. It was held that passing of the preliminary decree creates no bar to the filing of an application under Section 3 of the Partition Act. In State of Karnataka and Ors vs. M/s Hansa Corporation reported in air 1981 SC 463 which was an appeal against the judgment passed in a writ petition in which the constitutional validity of Karnataka Tax on Entry of Goods was under challenge, the observations of Lord Denning, J made in Seaford Court Estates Ltd. vs. Asher 1949 (2) All England Reporter 155 was quoted. Regarding "iron out the creases", the said observation was plainly disapproved by the House of Lords in the case of Magor and St. Mellons R. D. C. vs. Newport Corporation 1951 (2) All England Reporter 839. In that case Lord Simonds observed "it appears to be a naked usurpation of the legislative function under the thin disguise of interpretation". Lord morton (with whom Lord Goddard entirely agreed) observed "these heroics are out of place". In the said case it has been observed "the duty of the court is to interpret the words that the legislature has used. Those words may be ambiguous, but, even if they are, the power and duty of the court to travel outside them on a voyage off discovery are strictly limited. " 27. WE hold in the facts of the present case that there is apparently no "creases" in the language of section 8 of the Partition Act where the language is very clear and unambiguous. 28. IN Palamreddy Masthan Redy and, ors. vs. Nellore Finance corporation and Ors. " 27. WE hold in the facts of the present case that there is apparently no "creases" in the language of section 8 of the Partition Act where the language is very clear and unambiguous. 28. IN Palamreddy Masthan Redy and, ors. vs. Nellore Finance corporation and Ors. reported in AIR 1993 Andhra Pradesh 297 which was a case on the question whether a claim petition filed under order 21 Rule 58 of the Code of Civil Procedure pending on the date of commencement of the C. P. C. (Amendment) Act, 1976 has to be dealt with under the amended rules 58 and 59 of the Code of Civil Procedure or whether a suit under the repealed Rule 63 still lies against the order passed therein, it was held that a pending claim petition would be governed by the new Rule 58 of Order 21. We do not find that this case had any relevance in the present context. In Shah Babulal Khimji vs. Jayaben D. Kania and Anr. reported in air 1981 SC 1786 the question arose whether or not an order passed on an application for appointment of Receiver is a judgment under Clause 15 of the Letters Patent. Clause 15 of the Letters Patent does not mention specifically which judgments are appealable as in Section 104 and Order 43 Rule 1 of the Code of Civil Procedure. As pointed out earlier unless the statute specifically conferred the right of appeal no party to a proceeding has the right of appeal under the law. 29. WE now come to a decision reported in 60 CWN 871. Ganga Dutt murarka vs. Bibhabati Debi which was an appeal from original order allowing the application under Section 4 of the Partition Act. The question arose whether an appeal from an order for sale under Section 4 of the partition Act is an appeal from the original decree or an appeal from original order. It was held that the order for sale under Section 4 of the partition Act stands at par with the orders under Section 47 and 144 of the code of Civil Procedure However, the point raised in the present appeal was neither considered nor decided. 30. It was held that the order for sale under Section 4 of the partition Act stands at par with the orders under Section 47 and 144 of the code of Civil Procedure However, the point raised in the present appeal was neither considered nor decided. 30. IN Harbans Lal vs. Jagmohan Saran reported in AIR 1986 SC 302 the expression "deemed vacancy" used in Section 12 (1) (b) of U. P. Act in the following factual aspect was considered. The question on fact was whether a person who sits in the premises and carries on business on behalf of the original occupant can be deemed to be a transferee and whether the original occupant parted with possession. The court answered the question in the negative. That point ha also no relevance to the present case. Mr. Samanta thus sought to distinguish all the decisions as cited by M. Bhunia. After giving our anxious consideration to the facts of the present case and the contentions raised by both the learned Advocates we are of the view that the present appeal against the appellate order passed in an incompetent appeal is barred under Section 104 of the Code of Civil procedure. On the question as to whether or not the present appeal could be converted in to a revision, we have considered the decision in The Reliable water Supply Service of India (P) Ltd. vs. The Union of India and Ors. reported in AIR 1971 SC 2083 where the Supreme Court up held the conversion of the appeal in to revisions as the learned Trial Judge entertained a misconceived application under section 5 of the Arbitration act to decide the dispute as to the existence of agreement to refer to arbitration. It was held in the facts and circumstances of the said case that the High Court can convert an appeal in to a revision when the court whose order is appealed against is said to have illegally exercised the jurisdiction which is, however, not the case in the present one. 31. It was held in the facts and circumstances of the said case that the High Court can convert an appeal in to a revision when the court whose order is appealed against is said to have illegally exercised the jurisdiction which is, however, not the case in the present one. 31. WE thus conclude that there is no scope of our interpreting Section 8 of the Partition Act in some such a manner as to confer an additional right of appeal to an unsuccessful applicant whose prayer under Section 4 of the partition Act stood rejected just because we could spell out from the context and purport in Section 8 of the Partition Act that an "order for sale" is to be deemed a "decree" within the meaning of Section 2 of the Code of civil Procedure. We hold in conformance to the wishes of the legislature that an order rejecting an application for sale as such is not appealable, unless it is challenged in a composite appeal either against a preliminary or final decree. 32. THE appeal accordingly stands dismissed. There will be no order as to costs. Appeal dismissed.