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2014 DIGILAW 474 (ORI)

Guru Charan Mohanto v. Munibar Mohanto

2014-08-06

D.DASH

body2014
JUDGMENT : D. Dash, J. 1. The appellants who were originally defendant No. 16 and 17 later on rearranged as defendant No. 22 and 27 in the suit for partition bearing T.S. No. 17 of 1969. I have challenged the final decree passed therein. Background facts giving rise to the present appeal are stated hereunder:-- "The plaintiffs (Respondent No. 1 to 23) had filed the suit for partition against the present appellants and others claiming partition of the suit land describing Schedule- 'Ka' and 'Kha' of the plaint measuring an Ac. 39.34 and Ac. 71.61 respectively. By judgment dated 03.07.1971 the said suit was dismissed. So the plaintiffs being aggrieved carried the appeal before this Court which was numbered as First Appeal No. 137 of 1971. It came to be decided on 31.08.1979. This Court while setting aside the judgment and decree passed by the trial court in dismissing the suit, decreed the suit preliminary holding the plaintiffs entitlement to claim partition and shares therein both the Schedule- 'Ka' and 'Kha' land as was claimed allowing breathing time of three months to the parties to have an amicable partition or else to carry petition to the Court for the same. It is pertinent to state here that the suit of the plaintiff has been decreed as per the claim and the shares are allotted to the parties as claimed." On 01.10.1985, application was filed before the Court below for making preliminary decree final. So, the parties were noticed and objection was invited. The Defendant No. 1, 3, 10, 16 to 18, 22 to 24, 27, 29, 30, 32 and 33 raised objection on two grounds-: "(i) the proceeding for final decree is not maintainable since it is barred by limitation, and (ii) the proceeding is not maintainable since in the meantime in the current settlement operation lands which are subject matter of partition have been separately recorded." Upon hearing by order dated 21.11.1986, the objections were turned down and finally writ was issued to civil court commissioner on 12.12.1986 for division of the properties involved in the suit between the parties in accordance with preliminary decree. This order has gone unchallenged. The civil court commissioner gave his report with the allotment sheets making the distribution forming part of his report. The present appellants filed their objection in the court below. This order has gone unchallenged. The civil court commissioner gave his report with the allotment sheets making the distribution forming part of his report. The present appellants filed their objection in the court below. By order dated 04.03.1987, the court below turned down the objection, accepted the report of the civil court commissioner in toto and passed the order that the preliminary decree is made final. Finally on 11.05.1987, the final decree was sealed and signed, which are impugned in this appeal. 2. Learned counsel for the appellant has attacked with vehemence, the very entertainment of the application for making the preliminary decree final by the court, as according to him it was beyond the period of limitation. He contends that as per article 137 of Limitation Act the application for making preliminary, final being filed beyond a period of three years as prescribed there-in is not to be entertained being barred by law of limitation. So, he contends that the court below has erred in law in further acting upon it. It is next contended that the distribution of the immovable property as made by the civil court commissioner is unjust, improper and in oblivion to the factor of valuation of the immovable property allotted to the respective parties. According to him, the valuation of the immovable property allotted to the parties has not been given any weightage and it has rather been just winked at. He also contends that the report has been prepared, without actual measurement in the field and behind the back simply on perusal of land records. On the aforestated grounds he urges that the final decree impugned in this appeal is liable to be set aside. 3. Learned counsel for the respondents on the contrary refutes the submission on the point of limitation as advanced by the learned counsel for the appellant and she submits that the same is untenable in the eye of law. According to her, the settled position of law is that there is no limitation for filing an application for making preliminary decree passed in a suit for partition final. She submits that article 137 of the Limitation Act has no application to the case in hand. According to her, the settled position of law is that there is no limitation for filing an application for making preliminary decree passed in a suit for partition final. She submits that article 137 of the Limitation Act has no application to the case in hand. Next she submits by placing the relevant order sheets of the court below that in this case all required formalities as prescribed in law have been scrupulously followed and complied with both in letter and spirit; when due opportunity to object to the application filed first has been given to the adversary and then also to the report of the commissioner. She contends that even after receipt of the report of the civil court commissioner, scope being provided for raising necessary objection, if any; the objections as raised have been rightly found to be untenable. According to her, the report has been rightly accepted followed by consequential order. In the aforesaid premises, she submits that the appeal being devoid of merit is liable to be dismissed. 4. The scope of an appeal challenging the final decree passed in a suit for partition making the preliminary decree final is not that wide enough like an appeal against the preliminary decree for partition. The very purpose of a proceeding for making the preliminary decree final is to give the finality to the said decree only upon some adjudications as are required to be made in view of the events happening subsequent to the preliminary decree necessitating consequential changes or for drawal of a second preliminary decree if arty which in such type of suits usually take place in passage of time and then to go ahead to make those final. In short the proceeding is to give effect to all those as ordained in a preliminary decree. The preliminary decree is really declaratory in nature and it is implicit in that decree that further proceedings are required to effect partition by metes and bounds. A preliminary decree in a partition suit merely determines and declares the rights of the parties in the properties and the extent to which they are entitled to. But it is the final decree which ultimately divides the properties by metes and bounds and declares separate possession of the properties of the claimants. A preliminary decree in a partition suit merely determines and declares the rights of the parties in the properties and the extent to which they are entitled to. But it is the final decree which ultimately divides the properties by metes and bounds and declares separate possession of the properties of the claimants. The object sought to be achieved by a final decree is to restate and apply what the preliminary decree has ordered. A final decree is thus based upon and controlled by preliminary decree. Thus a final decree enforces what has been already decided and decreed by the Court. It neither relates to substantive rights of the parties nor decides or declares title to the properties or shares of the parties to the partition suit. That is the reason, section 97 C.P.C. has been engrafted in saying that if no appeal has been filed against preliminary decree, an aggrieved party cannot challenge final decree on any ground which has already been decided and declared in the preliminary decree which necessarily include those which have to be deemed to have been so decided. A preliminary decree is thus not a tentative decree but it conclusively determines rights and liabilities with regard to the matters dealt with by it in the suit and as regards the matters covered therein. 5. In the present case, the prayer is to make the preliminary decree passed in the appeal by this Court in F.A. No. 137 of 1971 within which the trial court's decree merged. The objection to the final decree petition was filed on the grounds:-(a) that in view of subsequent settlement changes to plot number, khata number and also the map with variation of recording, the preliminary decree as passed cannot be made final; (b) there being slight variation in the area of the land which form the subject matter of the suit, the preliminary decree as passed cannot be made final; (c) some lands having been possessed by others, the preliminary decree as passed cannot be made final. On carefully going through the objection petition, the grounds as mentioned are not found to be tenable in the eye of law. Those are mostly vague as also without any specification. Subsequent settlement operation and publication of record of rights cannot take away the effect of the preliminary decree passed prior to it. On carefully going through the objection petition, the grounds as mentioned are not found to be tenable in the eye of law. Those are mostly vague as also without any specification. Subsequent settlement operation and publication of record of rights cannot take away the effect of the preliminary decree passed prior to it. Such an objection stands for consideration only in the event, when it is shown that there has been such a major change with respect to the area situation etc. that the preliminary decree as passed for partition does no more survive or remain alive and in view of the conduct of the parties in that regard in that direction that they rather accepted position that instead of going for the final decree, they finally and fully worked out the preliminary decree in the settlement operation. It is the settled position of law that issuance of record of right in a settlement operation does neither take away or extinguish the title of the party/parties nor creates the same in favour of any in respect of immovable properties. These happenings during the settlement operations are thus subject to the final decree and can in no way be considered to push the preliminary decree as non-existent for being made final. The effect of the preliminary decree cannot be nullified so as to push it as dead being no more alive for being made final in view of any such changes in the record position in the settlement operation in between. However, the situation may be different in case where after notification under Section 3(1)of OCH & PFL Act, notwithstanding the prior preliminary decree in a suit for partition which though was bound to be accepted in so far the rights and interests of the parties as carved out therein, proceeded and decided the rights of the parties, by allotting different chakas in their favour and on finalisation and in the process of such allotment the lands which are subject matter of partition suit have been allotted to different raiyats. The rights of the parties have been fully effectuated in the consolidation proceedings which have become final and new chaka plots have been allotted. The rights of the parties have been fully effectuated in the consolidation proceedings which have become final and new chaka plots have been allotted. Even though a final decree proceeding which follows a preliminary decree passed in a title suit does not abate under section 4(4) of the Act as held in the case of Srinibas Jena (and after him) Madhabananda Jena and others v. Janardan Jena and other 50 (1980) CLT 337 (F.B.), still the question arises as regards course to be adopted, where in the consolidation operation, the consolidation authorities have already worked out the rights of the parties without being aware of the so-called preliminary decree either being not produced or the parties in spite of being armed with the said preliminary decree have so opted by keeping it under the carpet. In my considered view, in that situation the court would refrain from passing the final decree since that final decree would no more be executable because of the settled position of law that the court should not pass a decree knowing fully well that it would not be executable because of the subsequent events. So, even if the final decree proceeding in a suit for partition does not abate under the Act, but in view of the conduct of the parties in that very proceeding which was initiated subsequent to the preliminary decree where they have worked out their rights and the authorities have finally decided the question of right, title and interest of the parties in respect of the lands in question and have allotted different chakas in favour of the parties, the final decree cannot be passed since it would be in executable and the principles of 'res judicata' would apply. In the aforesaid Full Bench decision of this Court, it has been held that once parties work out their rights before the consolidation authorities, they cannot re-agitate the same question over and over again in the Civil Court and those questions stand finally concluded by the decision of the consolidation authorities. The rule of 'res judicata' is founded on the principle that a matter which has been litigated between the parties and finally adjudicated should not be allowed to be re-agitated between the same parties. The preliminary decree in a suit for partition declares the interest of the parties in the joint family land. The rule of 'res judicata' is founded on the principle that a matter which has been litigated between the parties and finally adjudicated should not be allowed to be re-agitated between the same parties. The preliminary decree in a suit for partition declares the interest of the parties in the joint family land. Subsequent to the said preliminary decree, the consolidation operation having started and in the said proceeding rights of the parties having been fully worked out and parties having been allotted chakas, it would be wholly inequitable, thereafter to pass final decree when said final decree would be rendered in executable. But here that is not the case and the closure of settlement operation by publication of records cannot be viewed in the above angle. Similarly, in case in the meantime some properties have been either recorded in the name of strangers or they are in possession, the final decree proceeding cannot get stalled by that. The strangers in possession or in whose name the properties have been recorded have all the rights to raise the issue regarding their claim at the execution proceeding as per law. The objection was rejected by order dated 21.11.1986 and the court below while doing so has passed a clear order that in the said proceeding the court on being approached is called upon to make the preliminary decree final. So now, there being no objection that the final decree does travel in any way beyond the direction in the preliminary decree; the later objection has been rightly turned down. After the civil court commissioner has been appointed, the report has been submitted and objection was raised to the said report. The grounds of objections are (i) the commissioner without going to the spot has prepared the report and allotment sheets (ii) the commissioner has not given respect to the possession of the parties (iii) the commissioner has not made the allotment sheets as per the old plot numbers (iv) The commissioner has not given respect to the valuation of the properties. This was resisted by the parties seeking relief of making the preliminary decree final. This was resisted by the parties seeking relief of making the preliminary decree final. While resisting the objection, it is stated that since the objectors are in possession of more landed properties than their shares with a view to linger the litigation and thereby illegally enjoy the usufructus as well as the properties for objection shake are raising all those to thwart the final decree being passed. The trial court on facts has found that the commissioner has not travelled beyond the preliminary decree and has acted in accordance with law, as per the direction contained in the preliminary decree. It has been held that he has finally prepared the allotment sheets taking all relevant factors into consideration as directed and in due discharge of his duties as such. 6. Learned counsel for the appellant in course of hearing has given much stress upon the valuation of the properties placing before this Court the allotment of lands made in favour of the parties vis-à-vis the classification of the landed properties as allotted. It is seriously refuted by the learned counsel for the respondents in contending that the variation is not of that degree or magnitude and such variation is ordinarily and most likely to happen looking at the position in the field, the possession of the properties by the parties and their nature of enjoyment. According to her, with exact precision such kind of allotments cannot be worked out and even if done it may be unworkable in the actual field for the parties to possess and enjoy. Therefore, the settlement operation bringing the change of RORs etc. does in no way appear as the subsequent events so as to be taken note of as events transpiring after preliminary decree for the Court to consider and to do full and complete justice to the parties and to avoid multiplicity of proceeding. 7. First of all, it is pertinent to state that there was no direction in the preliminary decree to take into consideration the valuation of the properties as the primary factor while making the allotment. However, the same cannot be altogether ignored and the allotment cannot be so made to the detriment of a party/parties and favouring one or some in that way. However, the same cannot be altogether ignored and the allotment cannot be so made to the detriment of a party/parties and favouring one or some in that way. However, in order to come to the conclusion on that score, it must be specifically shown as to how the said allotments have not been made looking to the valuation and that has seriously affected the party or parties. Moreover, valuation of immovable properties is a matter of moment and it never remains static forever, which is the natural and particularly in the present days scenario, its variations is likely to happen even at times that within a hour or even less than that for various factors intervening. Common experience goes to show that the valuation of the immovable properties has never been in a declining trend and rather always traveling in up gradient though at times for some other factors it remains static but it is also for a temporary period. At present, it is also seen that classification of the land as assigned in the records cannot also be taken as the sole guide or criteria for the purpose of assessing the valuation of the properties. Even the wastelands many a times fetch much higher price than better classified lands as per record. It all depends upon various surrounding factors and also the likely situation to appear in near future. Furthermore, when possession of the parties is to be given respect to, there is every likelihood of such variance in allotment specifically with regard to classification of land. So from that itself, the report cannot be adversely viewed. The classification as given in the record does not also remain as such forever and that changes according to the use looking at the manner of enjoyment and in course of time even inferior classified land gets converted to classification of higher type. The objectors have failed to show as to how allotment of any specific property/properties of particular classification has been made in favour of any party and has thus affected them in that situation. 8. Now, let me take up the contention of the learned counsel for the appellant with regard to limitation standing as a bar for maintainability of the final decree proceeding. 8. Now, let me take up the contention of the learned counsel for the appellant with regard to limitation standing as a bar for maintainability of the final decree proceeding. It is the settled position of law that upon passing of a preliminary decree in a suit for partition, the same does not come to an end and it remains alive until a final decree is passed in accordance with the preliminary decree giving the direction contained in the preliminary decree, the final shape for being capable of being executed. The residuary article, i.e., article 137 of the Limitation Act cannot be made applicable as the prescribed limitation for filing a petition making the preliminary decree final. The article refers to suit for which no limitation period has been prescribed under any specific article in the Act. The learned counsel for the appellants probably has overlooked that aspect that it is not an article which gets attracted to a petition for making preliminary decree final since no such period of limitation is prescribed for it in the Act. A petition for making a preliminary decree final does not amounts to filing of a suit and it is filed in pending suit. 9. It is too well settled a position that in a suit, the proceeding in the trial court does not come to an end on passing of a preliminary decree. The suit continues till passing of a final decree in the case and till then the trial court continues to be in seisin of the matter relating to subject matter of suit. The suit is deemed to be pending till the final decree is passed. 10. Similar, question was raised before this Court way back in the year 1972 in Chetran Agrawalla v. Bandhu Mallik; 1972 (1) CWR 140 and also in case of Sudarsan Panda v. Laxmidhar Panda and Others, AIR 1983 Orissa 121 wherein it has been held that a final decree proceeding is a continuation of the suit and no question of limitation arises. A suit for partition remains pending after a preliminary decree has been passed and the duty of drawing up of the final decree proceeding is on the Court that a final decree is drawn up in accordance with law. An application for a final decree in a suit for partition is not governed by any provision of the Limitation Act. A suit for partition remains pending after a preliminary decree has been passed and the duty of drawing up of the final decree proceeding is on the Court that a final decree is drawn up in accordance with law. An application for a final decree in a suit for partition is not governed by any provision of the Limitation Act. The very definition of 'decree' as contained in Section 2(2) of Code of Civil Procedure read with the explanation makes it abundantly clear and leaves no room for further discussion. 11. In a partition suit, after preliminary decree, is passed, it is the duty of the court to pass final decree. The rule therefore does not contemplate filing of any application by a party nor prescribed any limitation within which such application can be made for passing final decree. It is also because a partition suit cannot be disposed of till a final decree is passed. The submission, therefore, is found to be misconceived and, thus, stands for outright rejection, which has been rightly turned down by the court below. The reason given by the trial court in overruling the objection to the report of the civil court commissioner cannot be said to be flawed one and, thus, the same is hereby affirmed. The final decree impugned in this appeal thus stands for confirmation which is hereby done. In the wake of aforesaid, the appeal stands dismissed, in the circumstances without cost.