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2012 DIGILAW 283 (HP)

Sunder Lal v. Daropati Devi

2012-05-14

RAJIV SHARMA

body2012
JUDGMENT : Rajiv Sharma, J. This Regular Second Appeal is directed against the judgment and decree dated 29.3.2012 rendered by the learned Additional District Judge, Sirmaur District at Nahan in Civil Misc. Appeal No. 4-N/14 of 2008. 2. Material facts necessary for the adjudication of this Regular Second Appeal are that respondent-plaintiff (hereinafter referred to as plaintiff for convenience sake) filed a civil suit No. 34/1 of 1988, titled as Dropti Devi v. Smt. Chawli Devi and others in the court of learned Senior Sub Judge, Sirmaur District at Nahan for effecting partition of houses and vacant land comprised under Khata No. 230, Khatauni No. 344, 345 and 346, Khasra Nos. 39, 40, 41, 42, 43, 44, 46, 47 and 48 measuring 304- 68 square meters situated in Muhalla Rani Tall, Nahan, District Sirmaur. Plaintiff had claimed th share in the property. The suit was dismissed by the learned Senior Sub Judge, Nahan on 31.12.1992. Plaintiff preferred an appeal before the learned District Judge bearing Appeal No. 24-N/13 of 1993. The same was accepted by the learned first appellate court. Learned first appellate court passed the preliminary decree and defined the share of plaintiff as th and Smt. Chawli Devi, Bholar and Sadhu Ram having th share each in the property. Smt. Chawli Devi died and she was succeeded by Smt. Santosh Kumari. She also preferred Regular Second Appeal No. 204 of 1994 before this Court. The same was dismissed by this Court on 20.9.2001. Sh. Bholar has also died and his legal representatives were also brought on record. Thereafter, an application was filed before the trial court for passing of final decree. Objections were filed by the appellants-respondents-defendants (hereinafter referred to as defendants for convenience sake). The same were dismissed by the trial court. Defendants preferred civil revision bearing No. 109 of 2005 in this Court. The same was dismissed on 7.12.2005. Fresh objections were also filed by the defendants to the report of the Local Commissioner on 26.10.2006. The same were decided on 26.11.2007 by the learned Civil Judge (Senior Division). Thereafter, final decree was passed on 10.12.2007. Defendants, namely, Santosh filed an appeal against the orders 26.11.2007 and 10.12.2007 before the learned District Judge Sirmaur bearing Civil Misc. Appeal No. 4- N/14 of 2008. He dismissed the same on 29.3.2012. Hence, this Regular Second Appeal. 3. Mr. The same were decided on 26.11.2007 by the learned Civil Judge (Senior Division). Thereafter, final decree was passed on 10.12.2007. Defendants, namely, Santosh filed an appeal against the orders 26.11.2007 and 10.12.2007 before the learned District Judge Sirmaur bearing Civil Misc. Appeal No. 4- N/14 of 2008. He dismissed the same on 29.3.2012. Hence, this Regular Second Appeal. 3. Mr. Romesh Verma, on the basis of substantial questions of law framed, has strenuously argued that both the courts below have acted illegally and the jurisdiction has not been exercised by them properly. He then argued that both the courts below have misread and misconstrued the oral as well as documentary evidence. He also argued that suit bearing civil suit No. 34/1 of 1988 filed by the plaintiff was not competent for partition, more particularly, when dwelling house was involved. He has also argued that the Local Commissioner was required to be examined by the Court before relying upon his report. He has further argued that all the co-sharers were not made party in the civil suit. According to him, the sale deed of the part of the suit land was executed in the year 1959 and vendee of the said sale deed has not been arrayed as party. 4. I have heard Mr. Romesh Verma and have perused the judgment passed by the first appellate court meticulously. 5. The preliminary decree was passed by the learned District Judge on 2.4.1994. He has defined the share of the parties. Regular Second Appeal preferred against this preliminary decree was also dismissed by this Court on 20.9.2001. Thereafter, an application was filed, as discussed herein above, for passing final decree in civil suit No. 34/1 of 1988 by way of Civil Misc. Application No. 50/6 of 2002. Defendants filed objections to the application preferred by the plaintiff. These were rejected. Thereafter, Civil Revision No. 109 of 2005 was filed and the same was dismissed by this Court on 7.12.2005. Defendants again preferred objections on 26.10.2006 against the report of the Local Commissioner, which were dismissed on 26.11.2007. Thereafter, final decree was passed on 10.12.2007. Defendants have challenged orders dated 26.11.2007 and 10.12.2007. 6. What emerges from the facts enumerated herein above is that preliminary decree passed by the learned District Judge in civil appeal No. 24-N/13 of 1993 on 2.4.1994 has attained finality. Thereafter, final decree was passed on 10.12.2007. Defendants have challenged orders dated 26.11.2007 and 10.12.2007. 6. What emerges from the facts enumerated herein above is that preliminary decree passed by the learned District Judge in civil appeal No. 24-N/13 of 1993 on 2.4.1994 has attained finality. The Regular Second Appeal preferred against the judgment dated 2.4.1994 was also dismissed by this Court on 20.9.2001. There is no contemporaneous material placed on record by the defendants that any Special Leave Petition was preferred against the judgment dated 20.9.2001 rendered in Regular Second Appeal. The plaintiff moved an application for making preliminary decree final. Objections were raised by the defendants. These were dismissed on 6.7.2005 and the civil revision, as noticed above, bearing C.R. No. 109 of 2005 was also dismissed by this Court on 7.12.2005. The defendants have protracted litigation by filing objections to postpone the preliminary decree being made final. In the objections raised by the defendants, the Court has come to the conclusion that Jalpu Ram was not necessary party being co-sharer in the suit property. This objection, rather, was not taken initially. 7. Mr. Romesh Verma has also argued that the report of the Local Commissioner could not be accepted. It has come on record that the Local Commissioner, appointed by the Court, has visited the spot on 5.9.2006. The Patwari Halqua and Field Kanungo along-with revenue records were present on the spot. Sushila Devi and Uma Devi were informed through their real brother about the visit of the Local Commissioner. The Local Commissioner has measured the suit land in presence of the persons, who were present on the spot. He after carrying out the measurement, proposed khasra No. 43 measuring 46-02, 44/1 measuring 30-02 kita 2 measuring 76-04 square meters to be allotted to the plaintiff, khasra No. 44/2 measuring 9-13 square meters was allotted to Jitender son of Smt. Santosh and Sunder Lal and Smt. Monika and Manisha daughters of Santosh and Sunder Lal while khasra Nos. 46, 47 and 49 measuring 70-42 square meters kita 2 was proposed to be allotted to Jalpu and khasra Nos. 39, 30, 41-42 kita 4 measuring 149-09 square meters was proposed to be allotted to Chander Shekhar, Dinesh Kumar, Satya Devi, Uma Devi, Sushila, Renu daughters and Lajwanti Devi widow of Sh. 46, 47 and 49 measuring 70-42 square meters kita 2 was proposed to be allotted to Jalpu and khasra Nos. 39, 30, 41-42 kita 4 measuring 149-09 square meters was proposed to be allotted to Chander Shekhar, Dinesh Kumar, Satya Devi, Uma Devi, Sushila, Renu daughters and Lajwanti Devi widow of Sh. Bholar to the extent of half share and Harbans Parkash, Ramesh Parkash, Smt. Inder Kumar daughter, Smt. Kala Devi widow of Sadhu Ram to the extent of half share. Tatima was also prepared by the Local Commissioner on the spot. It has come in the report of the Local Commissioner that the summons were issued to the parties to be present on the spot. The Local Commissioner has carried out the demarcation, as per preliminary decree and the objectors had not moved an application to summon the Local Commissioner. In case they were aggrieved, they ought to have moved an appropriate application in accordance with law for summoning the Local Commissioner. No misconduct has been attributed to the Local Commissioner. Thus, the Local Commissioner appointed by the court has suggested the mode of partition, as per preliminary decree dated 2.4.1994 correctly. There is no illegality or perversity in the orders dated 26.11.2007 and 29.3.2012 passed by the courts below. 8. Their Lordships of the Honble Supreme Court in Venkata Reddy and others v. Pethi Reddy, AIR 1963 SC 992 have held that a preliminary decree passed, whether it is in a mortgage suit or a partition suit is not a tentative decree but must, in so far as the matters dealt with by it are concerned, be recorded as conclusive. Their Lordships have held as under: "6. The new provision makes it clear that the law is and has always been that upon the father's insolvency his disposing power over the interest of his undivided sons in the joint family property vests in the Official Receiver and that consequently the latter has a right to sell that interest. The provision is thus declaratory of the law and was intended to apply to all cases except those covered by the two provisos. We are concerned here only with the first proviso. This proviso excepts from the operation of the Act a transaction such as a sale by an Official Receiver which has been the subject of a final decision by a competent Court. We are concerned here only with the first proviso. This proviso excepts from the operation of the Act a transaction such as a sale by an Official Receiver which has been the subject of a final decision by a competent Court. The short question, therefore, is whether the preliminary decree for partition passed in this case which was affirmed finally in second apt peal by the High Court of Madras can be regarded as a final decision. The competence of the court is not in question here. What is, however, contended is that in a partition suit the only decision which can be said to be a final decision is the final decree passed in the case and that since final decree proceedings were still going on when the Amending Act came into force the first proviso was not available to the appellants. It is contended on behalf of the appellants that since the rights of the parties are adjudicated upon by the court before a preliminary decree is passed that decree must, in so far as rights adjudicated upon are concerned, be deemed to be a final decision. The word 'decision' even in its popular sense means a concluded opinion (see Shroud's Judicial Dictionary 3rd Ed. Vol. I, p. 743.) Where therefore, the decision is embodied in the judgment which is followed by a decree finality must naturally attach itself to it in the sense that it is no longer open to question by either party except in an appeal, review or revision petition as provided for by law. The High Court has, however, observed : "The mere declaration of the rights of the plaintiff by the preliminary decree, would in our opinion not amount to a final decision for it is well known that even if a preliminary decree is passed either in a mortgage suit or in a partition suit, there are certain contingencies in which such a preliminary decree can be modified or amended and therefore would not become final." It is not clear from the judgment what the contingencies referred to by the High Court are in which a preliminary decree can be modified or amended unless what the learned judges meant was modified or amended in appeal or in review or in revision or in exceptional circumstances by resorting to the powers conferred by Sections 151 and 152 of the Code of Civil Procedure. If that is what the High Court meant then every decree passed by a court including decrees passed in cases which do not contemplate making of a preliminary decree are liable to be "'modified and amended". Therefore, if the reason given by the High Court is accepted it would mean that no finality attaches to decree at all. That is not the law. A decision is said to be final when, so far as the Court rendering it is concerned, it is unalterable except by resort to such provisions of the Code of Civil Procedure as permit its reversal, modification or amendment. Similarly, a final decision would mean a decision which would operate as res judicata between the parties if it is not sought to be modified or reversed by preferring an appeal or a revision or a review application as is permitted by the Code. A preliminary decree passed, whether it is in a mortgage suit or a partition suit, is not a tentative decree but must, in so far as the matters dealt with by it are concerned, be regarded as conclusive. No doubt, in suits which contemplate the making of two decrees a preliminary decree and a final decree - the decree which would be executable would be the final decree. But the finality of a decree or a decision does not necessarily depend upon it's being executable. The legislature in its wisdom has thought that suits of certain types should be decided in stages and though the suit in such cases can be regarded as fully and completely decided only after a final decree is made the decision of the court arrived at the earlier stage also has a finality attached to it. It would be relevant to refer to Section 97 of the Code of Civil Procedure which provides that where a party aggrieved by a preliminary decree does not appeal from it, he is precluded from disputing its correctness in any appeal which may be preferred from the final decree. This provision thus clearly indicates that as to the matters covered by it, a preliminary decree is regarded as embodying the final decision of the court passing that decree." 9. This provision thus clearly indicates that as to the matters covered by it, a preliminary decree is regarded as embodying the final decision of the court passing that decree." 9. Their Lordships of the Honble Supreme Court in Muthangi Ayyana v. Muthangi Jaggarao and others, AIR 1977 SC 292 have held that final decree cannot amend or go behind the preliminary decree on a matter determined by the preliminary decree. Their Lordships have held as under: "5. This appeal, coming up before us from the final decree, raises the question whether the preliminary decree, confines, as the learned Counsel for the appellant-defendant No. 4 submits, accounting to the claims made by and against individual parties mentioned in the preliminary decree. He urges that it cannot be extended to all parties, including the defendant No. 4, if the terms of the preliminary decree are binding. The contention is based on the well recognised proposition that a final decree cannot amend or go behind the preliminary decree on a matter determined by the preliminary decree." 10. Accordingly, in view of the observations and discussions made herein above, there is no substantial question of law involved in the Regular Second Appeal and as such the same is dismissed. Pending application(s), if any, also stands disposed of. There shall, however, be no order as to costs.