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2006 DIGILAW 1407 (JHR)

Uma Devi v. Braj Kishore Prasad

2006-12-12

M.Y.EQBAL

body2006
Order M. Y. Eqbal, J.-In this application under Article 227 of the Constitution of India, defendant no.1-petitioner, has challenged the order dated 9.9.2004 passed by Sub-Judge, 1st Court, Hazaribagh in Partition Suit No. 28 of 1951 whereby he has allowed the application filed by the descendants of defendant no. 2 and the plaintiff for preparation of final decree in the said suit. 2. The facts of the case lie in a narrow compass: In 1951 a partition suit being partition suit no. 28/51 was filed by the plaintiff against the defendants including the present petitioner for a decree of partition in respect of the joint family property. During the pendency of the suit the parties settled their disputes outside court and a compromise petition was filed in the said partition suit no. 28/51. On 21 .8.1952 the trial court decreed the suit in terms of compromise and ordered that compromise petition shall form part of decree. Subsequent thereafter, a petition was filed by the defendant for some correction in the order dated 21.8.52 and the court below, by order dated 5.2.55, corrected the decree and further issued direction for appointment of pleader commissioner to proceed with partition. The pleader commissioner submitted his report which was confirmed on 21.2.57. 3. In 2003 the respondents, who are the descendants of defendant no. 2 and the plaintiff, filed an application stating, inter alia, that on the basis of a compromise petition, preliminary decree was passed in the said partition suit no. 28/51 on 21.8.1952 but no final decree was prepared till date. Hence, it was prayed that by appointing a survey knowing pleader commissioner separate takhta of the respondents (plaintiff and defendant no. 2) be carved out and final decree be prepared. 4. The petitioner, Smt. Uma Devi, who was defendant no. 1 in the suit, filed reply stating, inter alia, that a final decree was prepared in the said partition suit which was acted upon and parties are in possession of their respective shares since the date of compromise decree. It was stated that there was no question of again preparing a final decree. It was also contended that the application filed by the respondents was not maintainable. 5: The court below, after hearing the parties, allowed the application and directed for appointment of a survey knowing pleader commissioner afresh for takhtabandi and for preparation of final decree. 6. It was stated that there was no question of again preparing a final decree. It was also contended that the application filed by the respondents was not maintainable. 5: The court below, after hearing the parties, allowed the application and directed for appointment of a survey knowing pleader commissioner afresh for takhtabandi and for preparation of final decree. 6. From the impugned order it transpires that the original record of partition suit no. 28/51 was not traceable. The District Judge reconstructed the records of the said partition suit no. 28/51 and sent the same to the court below. The parties were asked to file documents; such as order-sheets and final decree etc. but none of the parties filed the survey, report or any order-sheet or document. However, the judgment of subsequent partition suit no. 32/ 1956 was made available on record to show that in the said judgment it was mentioned that a final decree was passed in the partition suit no. 28/51. The court below, in the impugned order, held that although there is mention about the final decree passed in the partition suit no. 28/51 but that does not mean that, in fact, final decree was passed. The court below, therefore, held that for avoiding multiplicity of proceedings it is necessary to appoint survey knowing pleader commissioner for the purpose of preparation of final decree. 7. Admittedly in the subsequent partition suit no. 32/56 the ancestors of defendant no. 2 (respondents herein) were parties. The suit was for partition of other joint family property. In the said judgment of partition suit no. 32/56 it was admitted by the predecessor-in-interest of the respondents that a final decree was passed in partition suit no. 28/51 and, according to the final decree, the parties of that suit have been coming in possession of the property which was the subject matter of that suit. The aforesaid fact about final decree passed in the partition suit no. 28/51 mentioned in the subsequent judgment finds support from the admitted fact that no application for preparation of final decree was filed by the respondents or their predecessors-in-interest till 2003. The court below, therefore, committed serious error of law in not considering these facts and also the fact that the instant application for preparation of final decree was filed by the respondents after about 46 years from the date when pleader commissioner's report was confirmed. The court below, therefore, committed serious error of law in not considering these facts and also the fact that the instant application for preparation of final decree was filed by the respondents after about 46 years from the date when pleader commissioner's report was confirmed. The court below has further committed serious error of law in not considering the order dated 21.2.57 which shows that a pleader commissioner was already appointed and the report submitted by the pleader commissioner was confirmed. In my considered opinion, when a pleader commissioner was appointed and the report of the pleader commissioner was confirmed in the suit 46 years back, then there was no occasion for the court below to again(sic) the application for appointment of a new pleader commissioner and for preparation of separate takhta. Admittedly the suit was decreed on compromise in 1952. A copy of the said decree has been filed and marked as Annexure 2 to this application. The operative portion of the decree reads as under: "This suit coming on this the 21st day of August, 1952 for final disposal before Sri Kamal Kumar Bose, Sub-Judge, Hazaribagh in presence of Mr. Jagarnath Sahay, pleader for the plaintiff and Sri N.C. Ghosh for the defendant, it is ordered and decreed that compromise be recorded and the •petition will form part of the decree." 8. It appears that because of some mistake in the said decree a petition was filed and a pleader commissioner was appointed who submitted his report and the said report was confirmed on 21.2.57 and decree was to be drawn up on the non-judicial stamp. 9. Be that as it may, in my view, there cannot be a fresh order again appointing a pleader commissioner in a suit for partition after 46 years from the date when the said partition suit was decreed on the basis of compromise. The impugned order, therefore, cannot be sustained in law. 10. For the aforesaid reasons, this writ application is allowed and the impugned order is set aside. However, in the facts of the case, there shall be no order as to costs.