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2013 DIGILAW 380 (ORI)

Goma Khan v. Haidar Khan

2013-09-12

S.K.MISHRA

body2013
ORDER : The order dated 29.8.2009 passed by learned Addl. Civil Judge (Senior Division), Balasore in F.D. No.143/1998-1 is challenged in this writ petition. 2. The plaintiff filed the original suit for partition of the suit land. The suit was decreed preliminarily specifying the share of the plaintiff and defendants as per the judgment dtd.14.3.2005. It is further revealed from the record that after passing of the preliminary decree the plaintiff initiated the final decree proceeding for allotment of his share. During pendency of the said final decree proceeding, the plaintiff came to know that Kabil Khan has sold his entire share in Ga schedule land to Sabar Khan and Akbar Khan by means of a registered sale deed No.608 dated 1.3.1933 and also delivered possession of the land on receiving the consideration amount from the Vendee and made them absolute owners thereof. It was further averred by the plaintiff that he obtained the certified copy of the registered sale deed on 31.3.2007 and handed over the same to his counsel, who kept it in his file. At the time of preparation for hearing of the final decree proceeding, this fact came to the knowledge of his Advocate on 15.4.2009, after which the petition was filed seeking direction from the court to specify the share to 3/8th in favour of the plaintiff and defendant Nos.1 to 11 and 1/4th share in favour of defendant Nos.18 to 21 in Ga schedule land. It is specifically pleaded that as per the registered sale deed dated 1.3.1933 Kabil Khan has alienated his share in favour of Sabar Khan and Akbar Khan in plaint Ga Schedule property and as such the legal heirs of Kabil Khan are not entitled to get share in Ga schedule land. Hence, defendant Nos.12 to 17 being the legal heirs of Kabil Khan, have no share in Ga schedule property as a result of which the plaintiff is entitled to get 3/8th share in Ga schedule land. Therefore, the plaintiff prayed for specification of the share in the preliminary decree. Hence, he prayed that necessary orders may be passed specifying share of the plaintiff as stated above. The petition came up for disposal before learned Addl. Civil Judge (Sr. Division), Balasore. As per order dated 29.8.2009 the learned Addl. Civil Judge (Sr. Therefore, the plaintiff prayed for specification of the share in the preliminary decree. Hence, he prayed that necessary orders may be passed specifying share of the plaintiff as stated above. The petition came up for disposal before learned Addl. Civil Judge (Sr. Division), Balasore. As per order dated 29.8.2009 the learned Addl. Civil Judge (Sr. Division) rejected the application on the ground that at the stage of final decree proceeding, redetermination of share cannot be made. 3. In assailing the order passed by learned Addl. Civil Judge (Sr. Division), Balasore, learned counsel for the petitioner relies on the reported case of Bhagabati Sahu and others v. Trilochan Sahu and after him Lakhpati Sahu and others, 1989 (II) OLR-174 : (AIR 1990 (NOC) 21 (Ori)); wherein this Court has held that a Court may take into consideration all subsequent events from time to time and make enquiries and pass preliminary decrees as those are necessary in the interest of justice and for just disposal of the case. It is further held that properties liable for partition can be added at any stage. 4. Having carefully gone through aforesaid decision, this Court feels it appropriate to quote the exact words of this Court in the same to see its applicability to the present writ petition. It is well-settled that in a suit for partition even after passing of the preliminary decree, the suit itself continues to be pending until the final decree is passed and that the Court may take into consideration all subsequent events from time to time and make enquiries under Order 20, Rule 18, C.P.C. in respect of all other properties to which the suit decree may relate and for the purpose, as was observed in AIR 1967 SC 1470 (Phoolchand and another v. Gopal Lal) there is nothing in the Code of Civil Procedure which prohibits passing of more than one preliminary decree in a suit justifying the same. As a matter of fact, passing of such preliminary decree becomes necessary due to change of circumstances in the partition suit when the extent of share of the parties is varied due to deaths which might occur in between the passing of preliminary decree and the final decree. (Emphasis supplied) 5. As a matter of fact, passing of such preliminary decree becomes necessary due to change of circumstances in the partition suit when the extent of share of the parties is varied due to deaths which might occur in between the passing of preliminary decree and the final decree. (Emphasis supplied) 5. Since in this case there is no change in the circumstances after passing of the preliminary decree, this Court is of the opinion that the ratio decided by this Court in the aforesaid decision is not applicable to the present case. If any deed of sale was executed in the year 1933 then the same should have been brought to the notice of the Court in the plaint itself and after lapse of seventy-six years such a plea cannot be allowed to be taken by the plaintiff in the final decree proceeding. 6. Hence this Court comes to the conclusion that the order dated 29.8.2009 passed by learned Addl. Civil Judge (Senior Division), Balasore in F.D. No.143/1998-1 suffers from no illegality or infirmity requiring interference of this Court. 7. Accordingly, the writ petition is devoid of any merit and the same is dismissed. Petition dismissed.