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2007 DIGILAW 929 (PAT)

S. M. Mahtab Ahmad v. Zaffar Ahsan

2007-05-10

RAMESH KUMAR DATTA

body2007
Judgment 1. Heard learned counsel for the parties. 2. The petitioner has filed this Revision application against the order dated 24.6.2006 in IPS. No. 84 of 59 passed by Sub-Judge-VI Patna by which the application dated 25.8.2003 filed by the defendant no. 3/petitioner for carving out a separate Takhta of the petitioners share in the suit property has been rejected. 3. Short fact leading to the present matter are that Bibi Fatma and Khursheed Fatma who are now represented by their heirs and successors as Opposite Parties Nos. 1 to 12 filed the aforesaid Title Suit against their brother S.M. Aftab Ahmad for partition of their moiety share in the suit property consisting of agricultural land situated at village Mojipur and houses at village-Bahpura and Patna. 4. By judgment and decree dated 9.8.1971, the Addl. Subordinate Judge-IV, Patna decreed the suit holding that the plaintiffs were entitled to half share in the suit property. During the pendency of the suit, S.M. Aftab Ahmad died on 2.11.1967 and his heirs namely S.M. Shamim Ahmad and S.M. Mahtab Ahmad as also his widow Sayeda Khatoon were substituted as defendant Nos. 1, 3 and 2 respectively. All the said heirs jointly filed an appeal being F.A. No. 1251/1971 against the preliminary decree dated 9.8.1971. 5. By judgment and decree dated 11.5.2000 of this Court, the Preliminary decree was modified and certain lands and house acquired in the name of original defendant Aftab Ahmad were excluded in the decree. The matter was agitated before the Supreme Court but the judgment and decree as finally modified by order dated 11.5.2000 of this Court was affirmed and attained finality. Thereafter, application was filed by the plaintiff for preparation of final decree in their name. 6. While the said application was pending, defendant no. 2 Shamim Ahmad died on 15.1.2001 and was substituted by defendant nos. 1(a) to 1(d) who are Opposite Parties No. 13 to 16 in.the present I Civil Revision. Thereafter on 9.1.2002 Sayeda Khatoon, the defendant no. 2 also died and her name was expunged from the record since her heirs and legal representative were already on the record. On 25.8.2003, defendant no. 3/petitioner filed a petition praying to direct the Advocate Commissioner to carve out a separate Takhta of his share from the Takhta of the widow and sons of Shamim Ahmad, defendant nos. 2 also died and her name was expunged from the record since her heirs and legal representative were already on the record. On 25.8.2003, defendant no. 3/petitioner filed a petition praying to direct the Advocate Commissioner to carve out a separate Takhta of his share from the Takhta of the widow and sons of Shamim Ahmad, defendant nos. 1(a) to 1(d) in accordance with principles of Mohammadan Law. In the said petition, it was further stated that application was filed on his behalf before the Advocate Commissioner on 16.8.2003 for carving out the separate Takhta of the petitioner thereafter the same was filed in the Court. The said application was kept pending by the Court and disposed of ultimately by the composite order dated 24.6.2006. Rejoinder to the petition dated 25.8.2003 was filed by the plaintiffs and defendant nos. 1(a) to 1(d) on 4.9.2003 and 19.6.2004. In the rejoinder petition on behalf of the plaintiffs, it was submitted that the petition dated 25.8.2003 was misconceived and not tenable since only the plaintiffs rights have been defined by the Court as 8 annas share in the properties under partition and the rest eight annas share have been left joint amongst the defendants and have not been defined. In the said situation, it was submitted that the prayer was beyond the scope of the suit and the preliminary decree that has been passed. In the rejoinder petition filed on behalf of defendant no. 1(a) to 1(d), it was prayed to reject the petition dated 25.8.2003 filed by defendant no. 3 for the reason that the deceased defendant no. 2 Sayeda Khatoon on 3.7.1984 made an oral hibba of her share in the disputed property gifting half and half of her share to her two sons and she also delivered the possession of gifted properties to her two sons and they accepted the oral gift made by their mother and came in possession. Subsequently, after the death of S.Shamim Ahmad, the elder son of Sayeeda Khatoon on 15.1.2001, the share received by the said Sayeeda Khatoon was already gifted on 15.8.2001 to her 3 grandsons and possession were also delivered and the grandsons also accepted the oral gift and were coming in possession thereafter. For the said reason, it was submitted that both the defendant no. 3 and defendant nos. For the said reason, it was submitted that both the defendant no. 3 and defendant nos. 1(a) to 1(d) were entitled to half and half share in the 8 annas share of the defendants and the defendants had no objection if the property is carved out and separate takhta prepared as per oral partition made between them during the pendency of the suit after adjustment of the property sold by the parties. 7. No separate order was passed by the learned Trial Court on the said applications petition dated 25.8.2003 and the objection petition and because there was a dispute relating to the sale of the different parts of the property, the parties were directed to file list of property sold alongwith copies of sale deeds so that the entire matter would be decided while considering the report of the Advocate Commissioner. The same has been done by the composite order dated 24.6.2006 by which the Court below has accepted/confirmed the report of the Advocate Commissioner with respect to the properties allotted to the plaintiffs. So far as question of carving out separate takhta of defendant no. 3 and the other defendants is concerned, the Court came to the conclusion that the defendants have not brought about any amendment of their written statement with respect to the mutual partition and other issues raised by them and there is no consent between the parties as to the actual portions in the share of the two set of parties and the issue raised by defendant no. 3 regarding share of the mother and that by defendant nos. 1(a) to 1(d) regarding the oral hibba can lead to a lot of delay and the suit is of the year 1959 which is pending for the preparation of final decree. In view of the same, the Court was of the view that the issue has been raised at the belated stage only to derail the process of preparation of final decree and for the said reasons, the prayer was rejected. 8. So far as the confirmation of the report of the Advocate Commissioner and direction for preparation of final decree in terms of the said report after following the said procedure is concerned, the defendant no. 3/petitioner and Opposite Parties No. 13 to 16 have filed separate appeals before the learned District & Sessions Judge which is pending. 8. So far as the confirmation of the report of the Advocate Commissioner and direction for preparation of final decree in terms of the said report after following the said procedure is concerned, the defendant no. 3/petitioner and Opposite Parties No. 13 to 16 have filed separate appeals before the learned District & Sessions Judge which is pending. With respect to that part of the order by which without specifically mentioning the objection dated 25.8.2003 but the prayer made therein has been rejected by the Court below, the present revision application has been filed. 9. Learned counsel for the petitioner submits that it is an established proposition that even if the share of the defendants are not separately specified in the preliminary decree of the Trial Court, the defendants are entitled to approach the Court in that suit itself for carving out their separate takhta and the same can be done not only during the stage of preparation of the final decree but even thereafter. In support of the said proposition, learned counsel has relied upon various decisions of the various High Courts but essentially he relies upon the decision of this Court in the case of Md. Hasnain vs. Md. Murtaza & Ors., 2000(1) B.B.C.J.- V 310-. In the said case, by the preliminary decree, the plaintiffs shares alone was defined and the final decree was thereafter prepared on 27.4.1988 and delivery of possession through the process of the Court was also effected and plaintiff was put in possession of the land allotted. Subsequently one of the defendants filed Partition Suit in the year 1994 for partition of his share which was dismissed and appeal with respect to the same was pending. In the same year, 3 other defendants filed application for carving out their separate patti in the original Partition Suit. In paragraphs 9 and 10 of the judgment, it was held as follows: "Para 9:- lt 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 preliminary decree and, therefore, until an executable decree is prepared, it cannot be said that the Court has become functus officio." "Para-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 reopened 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." 10. Relying on the aforesaid decision, the learned Counsel for the petitioner submits that the present case stands on similar footing and it was open to the present defendant no. 3-petitioner to have made an application for carving out separate takhta and it was incumbent upon the Court below to have considered it and taken step for carving out the separate share of defendant no. 3. It is further submitted that in the aforesaid order, it has been laid down that the function of the Court in Partition Suit does not come to an end on the passing of preliminary decree or even the final decree unless such final decree is made with respect to the shares of all the parties. In the present matter, the defendant no. In the present matter, the defendant no. 3/petitioner had as a matter of fact applied to the Court during the pendency of the proceedings for the preparation of the final decree itself and thus the case of the defendant no. 3/petitioner stands on a better footing than the defendants of the abovementioned case. 11. Learned Counsel also relies upon the decision of the Supreme Court in the case of Shankar Balwant Lokhande vs. Chandrakant Shankar Lokhande and Another, (1995)3 SCC 413 . In paras 7 and 8 of which it has been laid down as follows: "Para-7: ...............It is settled law that more than one final decree can be passed. With the passing of the final decree in respect of the share of the first respondent, the rights of the parties in respect of other properties have not been crystallized and no final decree dividing the properties by metes and bounds was passed nor any application was made to divide the properties in terms of the shares of the parties declared in the preliminary decree." "Para-8: It has been seen that after passing of preliminary decree for partition, the decree cannot be made effective without a final decree. 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 appellants so as to entitle the party to make an application for execution of the final decree." 12. Relying upon the aforesaid decision as also relying upon the decision of this Court in the case of Md. Hasnain vs. Md. Murtaza & Ors., 2000(1) B.B.C.J.V 310 (supra) learned Counsel submits that it is open to the Court below to issue more than one preliminary decree before a final decree in a suit for partition and there is no formal adjudication until final decree proceedings are worked out for all the parties and until final decree in that behalf is made. 13. 13. Learned Counsel for the Opposite Parties No. 13 to 16, on the other hand although supports the impugned order dated 24.6.2006 in this regard but on the whole, he does not object to the Court below deciding the said matter provided that issue of oral partition and oral hibba twice made by the erstwhile defendant no. 2 Sayeeda Khatoon is also decided. Otherwise, it is submitted by learned Counsel, that it will work out grave injustice on these Opposite Parties and the petitioner must be relegated to his remedy by filing a separate suit. 14. Learned Counsel for the plaintiff on the other hand submits that the revision application itself is not maintainable since against the said Impugned order dated 24.6.2006, the petitioner and Opposite Parties No. 13 to 16 have already filed separate appeals and it is open to them to challenge the said order on all the grounds before the Appellate Court. The said submission on behalf of the petitioner is only to be noticed to be rejected. So far as the appeal is concerned, the Appellate Court has only to consider the report of the Advocate Commissioner and the final decree that has been prepared relying upon it with respect to the share of the plaintiffs. The rejection of the petition dated 25.8.2003 of the defendant no. 3-petitioner is not an order that could be appealed against nor does it amount to a decree, and the only remedy against the same is by coming to this court by filing revision application. Thus the rejection of the petition dated 25.8.2003 cannot be looked into by the Appellate Court in the appeal which is pending before it. Hence, the revision application has rightly been filed before this Court and it is very much maintainable. 15. The other objection of learned Counsel for the plaintiff-Opposite Parties is that the original defendant Aftab Ahmad died on 2.11.1967 when the suit was still pending and even the preliminary decree had not yet been passed and the same was passed 4 years later, i.e., on 9.8.1971. It is submitted that all the three defendants had been substituted after the death of Aftab Ahmad and they had jointly filed a petition accepting the written statement earlier filed by the original defendant. Thereafter they had jointly challenged the Preliminary decree by filing the first appeal in the High Court. It is submitted that all the three defendants had been substituted after the death of Aftab Ahmad and they had jointly filed a petition accepting the written statement earlier filed by the original defendant. Thereafter they had jointly challenged the Preliminary decree by filing the first appeal in the High Court. Subsequently, they have jointly challenged the order dated 11.5.2000 passed in First Appeal by filing Letters Patent Appeal and ultimately they have approached the Supreme Court in S.L.P. Thus it is submitted that at no stage during the original trial upto the matter before the Supreme Court or even thereafter any such plea was raised on behalf of defendants that their separate takhta should be carved out in the suit. In that view of the matter, it is submitted by the learned Counsel that any such application would lead to amendment of the preliminary decree which is not permissible. 16. On a consideration of the contention of the parties, prima facie, this court is of the view that the application dated 25.8.2003 filed by the defendant no. 3-petitioner was certainly maintainable in view of the law laid down by this Court in Md. Hasnain vs. Md. Murtaza & Others, 2000(1) B.B.C.J.-V 310 (supra) following the Supreme Court decision in the case cf Shankar Balwant Lokhande vs. Chandrakant Shankar Lokhande and Anr., (1995)3 SCC 413 (supra) and the Court below was required to have considered the matter and proceeded with delineating the separate shares of defendant no. 3 and defendant no. 1 (a) to 1 (d). In so far as the objection of the plaintiffs is concerned, it has been clearly laid down in the said two decisions that any such further carving out of the shares of the defendants cannot have any effect on the final decree whether prepared or in preparation with respect to the plaintiff. Thus the preliminary decree or the final decree with respect to the plaintiffs cannot be touched in the process of carving out the shares of the defendants among themselves. Thus, in this matter, the objection of the learned counsel for the plaintiffsopposite parties does not have any meaning since the rights and interest of the plaintiffs-opposite parties cannot be affected by any such further process of carving out of the shares of defendants. Thus, in this matter, the objection of the learned counsel for the plaintiffsopposite parties does not have any meaning since the rights and interest of the plaintiffs-opposite parties cannot be affected by any such further process of carving out of the shares of defendants. The only consideration that will arise is that apart from carving out of the shares on the basis of the Mohammedan Law of Succession, certain other issues with regard to oral hibba and oral partition will have to be considered. The issue of two oral hibbas and oral partition have been raised on behalf of the defendant nos. 1(a) to 1(d) and that raises further questions than when the matter was originally decided. The said issues have to be decided either in the present proceeding while carving out shares of defendant no. 3 or by separate proceedings in a fresh Title Suit. The question is whether relegating the parties to a fresh suit will serve any useful purpose when the basic issue regarding 8 annas share of the defendants in the original suit properties has already been decided and their shares on the basis of normal devolution according to the law of succession is also not in dispute. Thus the matter can be considered in the present proceeding itself and that of oral hibba and oral partition raised by the defendants no. 1(a) to 1(d), in my view can also be decided conveniently in the present proceedings since relegating the parties to file a fresh suit can only lead to another round of prolonged litigation. 17. On a consideration of the aforesaid facts and circumstances, the order dated 24.6.2006 insofar as it rejects the claim made by the defendant no. 3 in the petition dated 25.8.2003, without specifically mentioning that the petition is rejected, is set aside and it is directed that the Court below shall proceed to carve out the separate shares of defendant no. 3 and defendant nos. 1(a) to 1(d) in accordance with law. 18. The Court below, with regard to the pleas regarding oral hibba and oral partition, shall permit the parties to amend their pleadings, if so desired, and also to lead further evidence. 19. While doing so, the Court below shall not in any manner touch the preliminary and final decree so far as it relates to the shares of the plaintiffs. 20. 19. While doing so, the Court below shall not in any manner touch the preliminary and final decree so far as it relates to the shares of the plaintiffs. 20. In the result, this Revision application is allowed with the aforesaid directions.