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2002 DIGILAW 852 (PAT)

Nawabali v. Reyaz Ahmad

2002-08-06

ASHOK KUMAR VERMA

body2002
Judgment Ashok Kumar Verma, J. 1. This miscellaneous appeal has been filed against the order, dated 24.07.1998, passed by Subordinate Judge, I, Gopalganj, in final decree no. 12 of 1961, whereby the learned Subordinate Judge has directed both the parties to maintain status quo till final preparation of another final decree. According to the appellant, the Court below has not considered that once a final decree was prepared it could not have taken step for preparation of another final decree on the basis of application filed by one of the defendants which will be an unending process of creating instability among the parties to the suit. The number of plot has not been mentioned in the petition over which construction was sought to be made. 2. Plaintiff Bibi Amna Khatoon had filed Title Suit No. 12 of 1961 for partition of her share in the suit property. By the Judgment, dated 22.04.1964, passed by the learned Additional Subordinate Judge, I, Chapra, Title Suit No. 12 of 1961/17 of 1964 was decreed on contest against defendant no. 2 in terms of compromise against those defendants who had entered into compromise with the plaintiff and exparte against those defendants who had not appeared. The preliminary decree in the partition suit was prepared and it was sealed and signed by the learned Subordinate Judge on 07.05.1964. Thereafter final decree was prepared in this case and it was sealed and signed by the learned Subordinate Judge on 02.08.1993. Defendants nos. 6 to 9 (Ahdul Majid, Ahdul Maajid, Nawab Ali and Sajay Ali) got 29 bigha 18 katha and 8 dhurs of land in their share. Defendant no. 6 Ahdul Majid was father of applicant respondent no. 1 Reyaz Ahmad. 3. Reyaz Ahmad, defendant no. 6 Ga son of Abdul Majid (Abdul Majid was original defendant no. 6 in the Title Suit) filed a petition on 01.06.1998 in the Court of Subordinate Judge, I, Gopalganj, in respect of final decree of Title Suit No. 12 of 1961 for separation of his 7/176th share in the suit property. Thereafter on 12.06.1998 Reyaz Ahmad filed a petition in the Court of Subordinate Judge, I, Gopalganj, for order of injunction to restrain the opposite parties from changing the land in suit and from making construction thereon and from selling it. Thereafter on 12.06.1998 Reyaz Ahmad filed a petition in the Court of Subordinate Judge, I, Gopalganj, for order of injunction to restrain the opposite parties from changing the land in suit and from making construction thereon and from selling it. By the impugned order, dated 24.07.1998, the learned Subordinate Judge ordered the applicant and opposite parties to maintain status quo till final preparation of another final decree. 4. It was argued by the learned lawyer for the appellant that the petitioner had filed the petition for preparation of another final decree after about five years of passing the final decree in the title suit and the petitioner is son of Abdul Majid who was defendant no. 6 in the title suit and the petitioner and other heirs of Abdul Majid were made parties in the case after the death of Abdul Majid and at the time of preparation of preliminary decree Abdul Majid was alive and he was defendant no. 6 and the petitioner Reyaz son of Majid was defendant no. 6 Ga in the final decree of Partition Suit No. 12 of 1961/17 of 1964. 5. The contention of the learned lawyer for the respondents was that the share of the applicant who is respondent in this miscellaneous appeal can be separated after the passing of the final decree in the partition suit and to save the properties from selling it and from making any construction over it, the parties should maintain status quo. 6. It was submitted by the learned lawyer for the appellant that when the final decree has been prepared, sealed and signed and the case has been finally disposed of, the respondent who was a party in the final decree can not make objection after about five years. In support of his contention he placed his reliance on a decision of the Supreme Court in the case cf Hari Prakash and others versus Lakshmi Narain and others, reported in A.I.R. 1996 Supreme Court, 105. It has been held by the Supreme Court in the case of Muthangi Ayyana vs. Muthangi Jagga Rao & others, reported in A.I.R. 1977 Supreme Court, 292, that in a partition suit final decree cannot amend or go behind the preliminary decree on a matter determined by the preliminary decree. 7. Admittedly, Title Partition Suit No. 12 of 1961/17 of 1964 had been decreed on contest against defendant no. 7. Admittedly, Title Partition Suit No. 12 of 1961/17 of 1964 had been decreed on contest against defendant no. 2 in terms of compromise against those defendants who had entered into compromise with the plaintiff and ex parte against those defendants who had not appeared and the preliminary decree was drawn and it was sealed and signed on 07.05.1964. Abdul Majid father of the applicant respondent Reyaz was defendant no. 6 in the Title Suit No. 12 of 1961/17 of 1964 and in the preliminary decree passed in the partition suit. The applicant respondent Reyaz along with other sons of Abdul Majid were made parties in place of defendant no. 6 Abdul Majid in the final decree and applicant respondent Reyaz was defendant no. 6 Ga in the final decree. The applicant Reyaz Ahmad respondent no. 1 in this miscellaneous appeal had filed the petition for injunction in the Court of Subordinate Judge, I, Gopalganj, stating therein that the opposite parties want to sell the good lands to others. But he has not given the details, i.e., Khesra number, khata number etc. of those lands which are alleged to be sold by the opposite parties. It has also been stated in the petition of the applicant respondent that the opposite parties want to put palani, naad, bathan and they also want to make pucca construction on the valuable land. But the petitioner has not stated the khesra number, khata number etc. of those lands in the petition. Another petition had been filed on behalf of the petitioner in the Court of Subordinate Judge, Gopalganj, on 02.07.1998 stating therein that the opposite parties are digging foundation and feeling earth over six katha nine dhurs of plot no. 152, khata no. 69 and over six katha four dhurs of plot no. 72, khata no. 72. So the petitioner has given the details of only twelve katha thirteen dhurs of land in his another petition filed after the filing of the injunction petition. By the impugned order, dated 24.07.1998, the learned Subordinate Judge had ordered both applicant and opposite parties to maintain status quo till the final preparation of another final decree in respect of the entire land mentioned in the injunction petition. 8. In the facts and circumstances of the case, the impugned order, dated 24.07.1998, passed by the learned Subordinate Judge, Gopalganj, is not tenable in law. 8. In the facts and circumstances of the case, the impugned order, dated 24.07.1998, passed by the learned Subordinate Judge, Gopalganj, is not tenable in law. Therefore, this miscellaneous appeal is allowed and the impugned order, dated 24.07.1998, passed by the learned Subordinate Judge, Gopalganj, is set aside.