Md. Hasnain v. Md. Murtaza — 1999 DIGILAW 1042 (PAT)

Judgment S.N.Jha, J. 1. This civil revision by defendant no. 5 is directed against the order dated 18.6.99 and the subsequent orders rejecting his petition objecting to the proposed carving out of the shares of defendant nos. 1, 6 and 7 in a final decree proceeding. 2. The plaintiff-opposite party no. 10 Md. Umar filed Partition Suit No. 165 of 1983 for partition of his 829/6470 share in the joint family properties. A preliminary decree defining the plaintiffs share alone was passed on 9.4.85. The properties, thus, remained joint with the defendants. Appeal (F.A. No. 178 of 1986) preferred in this Court against the preliminary decree was dismissed in default. Final decree was thereafter prepared on 27.4.88. In course of time delivery of possession through process of court was also effected and the plaintiff was put in possession of the lands allotted to him. Defendant no. 5, it appears, filed Partition Suit No. 330 of 1994 for partition of his share, which was dismissed. Appeal (Title Appeal No. 47 of 1997) is said to be pending before the District Judge. 3. Sometime in the year 1994 defendant nos. 1, 6 and 7 filed application for carving their separate Pattis in Partition Suit No. 165 of 1983. On 19.8.94 the court gave certain direction to the Advocate Commissioner. It appears that the directions were not given effect to on account of pendency of the Partition Suit No. 330 of 1994. On 23.8.97 defendant nos. 1, 6 and 7 filed application for direction to the Advocate Commissioner to proceed with the work of preparation of final decree pursuant to the earlier order dated 19.8.94, The prayer was objected to by defendant no. 5 on the ground that as the final decreee had already been prepared in the suit, the court had become functus officio and it had no authority to issue any direction to the Commissioner. The objection was overruled and the Commissioner was directed to go ahead with the work. On 27.11.97 the Commissioner submitted his report containing the particulars of the lands allotted to the defendants in separate Pattis. Defendant no, 5 filed yet another objection which was rejected on 4.10.97. He came to this Court in C.R. No. 2068 of 1997. From the order of this Court dated 22.4.99 passed in the said Civil revision it appears that an argument was advanced on behalf of defendant no. Defendant no, 5 filed yet another objection which was rejected on 4.10.97. He came to this Court in C.R. No. 2068 of 1997. From the order of this Court dated 22.4.99 passed in the said Civil revision it appears that an argument was advanced on behalf of defendant no. 5 to the effect that although in a partition suit more than one preliminary decree can be passed, after the final decree is passed, the court has no power to pass any preliminary decree. Reliance was placed on a decision in Phoolchand vs. Gopal Lal, AIR 1967 Supreme Court 1740. This Court by its aforesaid order directed the trial court to consider as to whether "at the instance of defendants 1, 6 and 7 in the year 1994 even on payment of court fee, their shares can be defined and a preliminary decree for partition can be passed in the partition suit". By the impugned order dated 18.6.99 the court below reiterating its previous order has held that the court is competent to carve out the shares of defendant nos. 1, 6 and 7. 4. The same argument, as was advanced on behalf of the petitioner in the previous civil revision, has been made, that is, the final decree having been passed in the suit the court has no jurisdiction to carve out separate shares or pattis of defendant nos. 1, 6 and 7. Frontal reliance has been placed on the case of Phoolchand vs. Gopal Lal (supra). 5. The submission, I am afraid, is based on misunderstanding of law. What the Supreme Court has held in Phoolchands case is that in partition suits preliminary decree already passed can be varied or amended and, thus, more than one preliminary decree can be passed, but this cannot be done after the final decree is passed. That is to say after final decree is passed, the preliminary decree cannot be varied or modified. There is no question of varying, amending or modifying the preliminary decreee in the present case. As noted above, the preliminary decree was passed with respect to the plaintiffs share in the joint family properties alone and he has already been put in possession of the lands allotted to his share. The point at issue is rather squarely covered by a recent decision of the Supreme Court in Shankar Baiwant lokhande vs. Chandrakant Shankar Lokhande, (1995) 3 SCC 413 . The point at issue is rather squarely covered by a recent decision of the Supreme Court in Shankar Baiwant lokhande vs. Chandrakant Shankar Lokhande, (1995) 3 SCC 413 . 6. Before referring to the relevant parts of the judgment in the aforesaid case it would be apt to quote the relevant part of Rule 18 of Order 20 of Civil Procedure Code, which contains provisions relating to decree in suit for partition of property or separate possession of a share therein. The rule so far as relevant runs as follows : "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 or to movable 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." 7. In Shankar B. Lokhande vs. Chandrakant S. Lokhande (supra) the Supreme Court noticed the definition of the term decree under section 2(2) of the Code which means "the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final", and observed that a preliminary decree in partition suit is one which declares the rights and liabilities of the parties leaving the actual result to be worked out in further proceedings. The Court then noticed the provisions of Order 20 Rule 18 quoted above and observed as follows : "Where the decree relates to any immovable property and the partition or separation cannot be conveniently made without further inquiry, then the court is required to pass a preliminary decree declaring the rights of several parties interested in the property. The court is also empowered to give such further directions as may be required in this behalf. A preliminary decree in a partition action, is a step in the suit which continues until the final decree is passed. The court is also empowered to give such further directions as may be required in this behalf. A preliminary decree in a partition action, is a step in the suit which continues until the final decree is passed. In a suit for partition by a coparcener or co-sharer, the court should not give a decree only for the plaintiffs share, it should consider shares of all the heirs after making them parties and then pass a preliminary decree. The words "declaring the rights of the several parties interested in the property" in sub-rule (2) would indicate that shares of the parties, other than the plaintiff(s), have to be taken into account while passing a preliminary decree." (emphasis added) 8. In the aforesaid case the facts were similar to those of the present case. The preliminary decree was passed on 2.8.55 declaring that Chandrakant, the defendant-respondent, was entitled to 1/6th share and the appellants were entitled to 5/6th share in the suit properties. A final decree was thereafter passed but with respect to the respondents share alone. Later application was filed on behalf of the appellants for passing a final decreee in respect of their shares. The application was rejected as being barred by limitation. In appeal preferred by the appellants the High Court held that the limitation began to run from the date when direction was given to pass final decree and as the application was filed after expiry of the period of limitation, counted from that date, the application was barred by limitation. The point for consideration before the Supreme Court was as to when the limitation for filing an application to pass final decree begins to run. The Court observed that until the rights of parties are finally worked out in the final decree proceeding and till a final decree is prepared, there is no formal expression of the adjudication of the rights of the parties and, therefore, the period of limitation would start running only after final decree is made. The Court accordingly held that no executable decree having, thus, been made with respect to the shares of the appellants, the application filed by them to pass final decree could not be said to be barred by limitation. The Court accordingly held that no executable decree having, thus, been made with respect to the shares of the appellants, the application filed by them to pass final decree could not be said to be barred by limitation. It would be useful to refer to relevant passage from the judgment as hereunder : "The final decree made in favour of the first respondent is only partial to the extent of his 1/6th right without any demarcation or division of the properties. Until the rights in the final decree proceedings are worked out qua all and till a final decree in that behalf is made, there is no formal expression of the adjudication conclusively determining the rights of the parties with regard to the properties for partition in terms of the declaration of 1/6th and 5/6th shares of the first respondent and the appellant" 9. It would thus appear that in a partition suit the function of the court does not come to an end with the passing of a preliminary decree nor it comes to an end with the passing of final decree unless such final decree is made with respect to shares of all the parties. Unless and until it is so done it cannot be said that the court has become functus officio and it cannot entertain the application of any other party with respect to whose share no final decree has been prepared. In terms of Order 20 Rule 18 (2) of the Code, the Court may pass a preliminary decree, but this is so only because it cannot pass the final decree without making further enquiries. Thus, passing of a preliminary decree is only a step in the direction of passing the final decree. It is the final decree which is executable and not the prelimianry decree and, therefore, until an executable decree is prepared, it cannot be said that the court has become functus officio. 10. In the present case, it is an admitted position that the preliminary decree as well as the final decree were passed with respect to the plaintiffs share alone. No decree was passed with respect to the shares of the defendants. 10. In the present case, it is an admitted position that the preliminary decree as well as the final decree were passed with respect to the plaintiffs share alone. No decree was passed with respect to the shares of the defendants. In the ongoing proceeding in the court below, the preliminary or the final decree passed with respect to the plaintiff is not sought to be re-opened and there is no question of amending or varying the preliminary/final decree already passed with respect to his share. The ratio of the decision in Phoolchands case (supra) is thus not applicable. It was, therefore, open to defendant nos. 1, 6 and 7 to make application for carving out their shares in the suit properties. 11. In the result, I do not find any merit in this civil revision, which is accordingly dismissed.