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2011 DIGILAW 828 (CAL)

Mrityunjoy Mukherjee v. Krishna Prasad Mukherjee

2011-06-23

PRASENJIT MANDAL

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Judgment :- Prasenjit Mandal, J. Challenge is to the order no.119 dated November 21, 2009 passed by the learned Civil Jude (Junior Division), Baruipur in Title Suit No.101 of 1994 thereby rejecting an application under Section 151 of the C.P.C. filed by the defendant nos.2(a) to 2(h). The plaintiffs / opposite parties herein instituted a suit being Title Suit No.101 of 1994 against the predecessor-in interest of the petitioners and other defendants for partition and other reliefs. In that suit, the defendant no.2 entered an appearance and he filed a written statement denying the material allegations made in the plaint. Thus, he was contesting the said suit. The said suit was decreed in the preliminary form on January 20, 1997 declaring 1/4th share to each of the parties. In the mean time, the defendant no.2 died and his heirs and the proforma opposite party no.5 have been substituted. In that suit, the share of the defendant nos. 2(a) to 2(h) has been declared. The defendant nos. 2(a) to 2(h) and the defendant no.5 filed applications for separate allotment. The commissioner was appointed and then upon holding investigation, the learned Commissioner submitted his report. Thereafter, the petitioners filed an objection against the report of the Commissioner by filing an application under Section 151 of the C.P.C. By the impugned order, the learned Trial Jude rejected the application under Section 151 of the C.P.C. on the ground that since the preliminary decree declaring the shares of the parties had been passed, the question as raised therein cannot be reopened. Being aggrieved, this application has been preferred. Upon hearing the learned counsel for the parties and on going through the materials on record, I find that the impugned order cannot be supported. It is the specific case of the petitioners that by suppressing the fact and practising fraud upon the Court, the decree for partition had been obtained and so, the decree was liable to be set aside. The shares of the parties had been declared earlier by a registered deed of partition in 1971 and as such, the learned Trial Judge was not justified in rejecting the prayer of the petitioners for alteration or modification of the decree. The learned Trial Judge has observed in the impugned order that since a preliminary decree had been passed declaring the shares of the parties, there is no scope of reopening the matter again. The learned Trial Judge has observed in the impugned order that since a preliminary decree had been passed declaring the shares of the parties, there is no scope of reopening the matter again. But the law is otherwise. There is no bar to pass a fresh decree instead of the original decree in the title suit. If necessary, there is no bar to pass more than one preliminary decree in the suit. During the argument, Mr. Hiralal Bhattacharjee, learned advocate appearing for the petitioner has referred to the following decisions:- i) The decision of Sri Prohlad Roy v. Sunil Kumar Roy @ Susandhar Roy & ors. reported in 1990(1) CLJ 234 and thus, he submits that a decree passed by the Court without jurisdiction is a nullity and that its validity could be set up, whenever, it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. By exercising inherent power, the Court can remove technicalities. ii) He has next referred to the decision of Abdul Wahab Khan v. Tilakdhari Lal & ors. reported in 32 CWN 170 and thus, he submits that the private partition of portion of Estate barring formal partition of whole by Civil Court and the right to sue for partition in respect of reminder are permissible. A formal partition of whole estate by the Civil Court is, therefore, barred. In respect of lands which were undivided, the right to sue for partition, however, subsisted. The instant case, I hold, is in consonance with this decision. iii) He has also referred to the decision of S. Satnam Singh & ors. v. Surender Kaur & anr. reported in 2009(2) SCC 562 and thus, he submits that a decree may be partly preliminary and partly final. The Court must always be ready and willing to rectify the mistake, it has committed. And, iv) He has also referred to the decision of S.P. Chengalvaraya Naidu (dead) by Lrs. v. Jagannath (dead) by Lrs. & ors. reported in 1994 (1) SCC 1 and thus, he submits that whenever it was detected that when a property had been partitioned earlier and such fact was not disclosed with a view to obtaining advantage, amounts to fraud and so such decree obtained by fraud is liable to be set aside. Thus, Mr. Bhattacharjee has submitted that the share of the defendant nos. Thus, Mr. Bhattacharjee has submitted that the share of the defendant nos. 2(a) to 2(h) and the proforma opposite party no.5 should have been declared separately as prayed for. He has also contended that the property of Madan Mohan Mukherjee should not be partitioned again in view of the partition died dated July 20, 1971. Consequently, the report filed by the Commissioner should not be accepted. The preliminary decree should be modified accordingly. On the other hand, Mr. S.P. Ghosh appearing on behalf of the opposite party has contended that the preliminary decree passed in a partition suit is conclusive and it cannot be altered as prayed for. In support of his contention, Mr. Ghosh has referred to the following decisions:- i) The decision of Chittoori Subbanna v. Kudappa Subbanna & ors. reported in AIR 1965 SC 1325 and thus, he submits that the High Court has discretion to allow or refuse an application wherein a substantial question has been raised. Thus, he submits that the decree passed by the learned Trial Judge, unless appeal is preferred, cannot be treated as without any jurisdiction. The proper function of an Appellate Court is to correct an error in the judgment or proceedings of the Court below. Since no appeal has been preferred against the preliminary decree, the same cannot be altered. ii) The decision of Venkata Reddy & ors. v. Pethi Reddy reported in AIR 1963 SC 992 and thus, he submits that a preliminary decree passed, in a suit for partition, is not a tentative decree but must, in so far as the matters dealt with by it are concerned, be regarded as conclusive. iii) The decision of Punjab National Bank v. Sahuja in Charitable Society & ors. reported in AIR 2007 SC 2651 and thus, he submits that the Court shall take an active role to ensure the disposal of the suit for partition finally within a reasonable time after the preliminary decree is passed especially when the issues involved are simple. And, iv) The decision of M/s. Nathmal Bhaironbux & Co. & ors. v. Kashi Ram & ors. reported in AIR 1973 Rajasthan 271 and thus, he submits that the matters decided in the preliminary decree cannot be reagitated at the time of final decree. In that view of the matter, I hold that there is no bar to pass another preliminary decree in the suit. & ors. v. Kashi Ram & ors. reported in AIR 1973 Rajasthan 271 and thus, he submits that the matters decided in the preliminary decree cannot be reagitated at the time of final decree. In that view of the matter, I hold that there is no bar to pass another preliminary decree in the suit. In the instant case, the Commissioner was appointed and he submitted his report according to the preliminary decree. But the fact remains that one partition suit was held earlier and the suit property was partitioned by a registered partition deed dated July 20, 1971 declaring the share of Modan Mohan Mukherjee separately. So, that partition must be maintained and the rest property treating as joint should be partitioned amongst the rest co-owners. The Trial Judge is competent enough to pass another preliminary decree declaring the share of the petitioners and the proforma opposite party. The impugned order, therefore, cannot be supported. The learned Trial Judge has rejected the application of the defendant nos. 2(a) to 2(h) on misconception of law and consequently, he committed errors of law in passing the impugned order. Accordingly, the impugned order cannot be supported. It is, therefore, set aside. The learned Trial Judge is directed to dispose of the application under Section 151 of the C.P.C. filed by the petitioners afresh. Such exercise of power shall be done within a period of two months from the date of receipt of the order, keeping in view of the above observations. Considering the circumstances, there will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.