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1998 DIGILAW 84 (PAT)

Kanhaiya Lal Tiwari v. Guneshwar Kaur

1998-02-03

R.M.PRASAD

body1998
Judgment R.M.Prasad, J. 1. This appeal is directed against the judgment and decree dated 30th June, 1994, passed in T.A. No. 31 of 1991 by the Second Additional District Judge, Gopalganj dismissing the appeal and affirming the judgment and decree passed by the Munsif, Gopalganj in Partition suit No. 293 of 1956. 2. In short, the relevant fact is that the suit was compromised and the preliminary decree was accordingly prepared on 11.12.1957. After preparation of the said preliminary decree the plaintiffs filed an application for preparation of final decree. Accordingly, the final decree was prepared on 9.4.1991 by the trial Court. The defendants-appellants 1 to 3 preferred T.A No. 31 of 1991 against the said final decree, which has been dismissed and the judgment of the trial Court has been affirmed. 3. It is contended by Mr. Dwivedi, learned senior Counsel appearing for the appellants that the proceeding for preparation of final decree was not maintainable, as it was in variance of the terms of the compromise incorporated in the preliminary decree. Moreover, according to the learned Counsel for the appellants, the initial decree was preliminary as well as final and nothing was left to be done, for which any proceeding for preparation of final decree could be taken. However, there is no dispute as regards passing of the preliminary decree. But according to the learned Counsel, even assuming that the application for preparation of the final decree was maintainable, yet the impugned final decree has not been prepared in terms of the preliminary decree. Mr. Dwivedi also submitted that in any view of the matter, the impugned judgment of the lower appellate Court cannot be sustained as the Court has completely ignored the second Pleader Commissioners report, which impliedly superseded the first Pleader Commissioners report in view of the order passed by the lower appellate Court on 1.10.1991. 4. According to the learned Counsel appearing for the respondents, the proceeding for preparation of the final decree was very much maintainable in order to give effect to the preliminary decree, which defines the respective shares as per the compromise entered into between the parties. 4. According to the learned Counsel appearing for the respondents, the proceeding for preparation of the final decree was very much maintainable in order to give effect to the preliminary decree, which defines the respective shares as per the compromise entered into between the parties. It was further contended that the defendants-appellants themselves also filed an application for allotment of Takta as per the preliminary decree and as such, it does not now lie in their mouth that the application for preparation of final decree pursuant to the preliminary decree was not maintainable. It was also contended by the learned Counsel for the respondents that the final decree has been prepared strictly according to the shares defined in the preliminary decree for which the parties entered into the compromise. Hence, in any view of the matter, no substantial question of law can be said to be involved in this case for consideration of the second appeal and in view of the concurrent findings of facts arrived at by the two Courts below, the appeal is fit to be dismissed. 5. I find substance in the submission of the learned Counsel for the respondents. There cannot be any dispute on the proposition that final decree cannot amend and cannot go behind the preliminary decree in the matter decided on preliminary decree, but there is no substance in the submission of the learned Counsel for the appellant that the proceeding for preparation of final decree was not maintainable, as the initial decree was preliminary as well as final and nothing was left to be done. The judgment of the Apex Court in the case of Muthangi Ayyana V/s. Muthangi Jaggarao and Ors. reported in -- relied upon by Mr. Dwivedi learned Counsel for the appellants is of no avail to him to support the aforementioned submission. In the said case the Apex Court was dealing with a case where the High Court had modified the preliminary decree and substituted it by fresh decree, which was held to be not permissible. The learned Counsel for the appellants has failed to point out that while preparing the final decree the Court below has amended or gone behind the matters determined by the preliminary decree. The learned Counsel for the appellants has failed to point out that while preparing the final decree the Court below has amended or gone behind the matters determined by the preliminary decree. Under Order XX, Rule 18 where the Court passes a decree for the partition of property or for the separate possession of a share therein, then, if, and in so far as such decree relates to any other immoveable property or moveable property, the Court may, if the partition or separation cannot be conveniently made without further enquiry, pass a preliminary decree declaring the rights of the parties interested in the property and giving such further direction as may be required. It is, thus, only where a compromise decree in a partition suit allotting and specifying the property allotted to the share of each party is a final decree and nothing remains to be done, except to engross it on stamp paper. 6. Order XXVI, Rule 14 of the C.P.C prescribes the procedure to be followed by the Commissioner appointed by the Court to divide the property into as many shares as may be directed by the order under which the Commission was issued, and shall allot shares to the parties, and may, if authorised thereto by the said order, award sums to be paid for the purpose of equalizing the values of the shares. 7. In the present case, Sri Sudha Shankar Srivastava, advocate was appointed as Commissioner by the learned trial Court to hold an enquiry arid submit a report. The said Commissioner visited the spot and after measuring the suit lands, partitioned the lands by mates and bound and prepared the report and submitted the same. The defendants including the appellants filed objection against the said report and after hearing the objections, the learned Munsif, by order dated 9.4.91 rejected the objections and thereafter passed the final decree date 14.5.1993 affirming the report of the said Pleader Commissioner to form part of the final decree. The defendants being aggrieved, filed the aforementioned Title Appeal and while hearing both parties on the question of grant of stay, the District Judge before whom the appeal was pending, however, appointed one Sri Rabi Shankar Singh, advocate as Pleader Commissioner to visit the suit lands and submit a report on the actual physical features of the suit lands. The defendants being aggrieved, filed the aforementioned Title Appeal and while hearing both parties on the question of grant of stay, the District Judge before whom the appeal was pending, however, appointed one Sri Rabi Shankar Singh, advocate as Pleader Commissioner to visit the suit lands and submit a report on the actual physical features of the suit lands. Accordingly, Sri Rabi Shankar Singh visited the suit lands and submitted his report. The lower appellate Court in the impugned judgment on detailed consideration of the contentions raised by the parties and going through the report of both the Pleader Commissioners and the entire records, found that the report of Sri Sudha Shankar Srivastava had not been set aside; rather Sri Rabi Shankar Singh, advocate was appointed only to give actual physical features of the land and thereby held that the report of Sri Rabi Shankar Singh cannot prevail upon the report of Sri Sudha Shankar Srivastava and further found his report to be quite correct. 8. I do not find any infirmity in the said finding of the lower appellate Court. Bare perusal of the order of the District Judge appointing Sri Rabi Shankar Singh shows that the said appointment was only to give actual physical features of the lands and not that the report already submitted by Sri Srivastava, pursuant to Order XXVI, Rules 14(1) and (2) of C.P.C. was set aside or upset in any manner. 9. Mr. Dwivedi, in this connection referred to the provisions contained in Clause (3) of Order XXVI, Rule 14 of the C.P.C. and contended that by appointment of Sri Singh as Commissioner, the Court set aside the earlier report and issued a new Commission of Sri Singh. As such, according to him, the Courts below are not justified in relying upon the first report submitted by Sri Srivastava and completely overlooking the report submitted by Sri Singh. In view of my aforementioned findings, I do not find any substance in the said submission of Mr. Dwivedi. In my opinion by no stretch of imagination it can be held that the report of Sri Srivastava was set aside and that the District Judge issued a new Commission appointing Sri Singh as Pleader Commissioner. 10. In view of my aforementioned findings, I do not find any substance in the said submission of Mr. Dwivedi. In my opinion by no stretch of imagination it can be held that the report of Sri Srivastava was set aside and that the District Judge issued a new Commission appointing Sri Singh as Pleader Commissioner. 10. The learned Counsel for the appellants has failed to point out any discrepancy in the impugned final decree from that of the preliminary decree, whereby the trial Court determined the respective shares of the parties and ordered for partition of the suit lands, only whereafter the final decree was prepared and also was affirmed by the lower appellate Court. 11. Thus, in my opinion, it has rightly been submitted by the learned Counsel for the respondents that in view of the concurrent findings of fact, no case for interference against the final decree in Second Appeal is made out. The appeal is accordingly, dismissed, but without costs.