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2018 DIGILAW 2520 (JHR)

Mewalal Choudhary v. Deocharan Choudhary

2018-11-22

SHREE CHANDRASHEKHAR

body2018
JUDGMENT : The petitioners, who are plaintiffs in Partition Suit No.52 of 1970/74, are aggrieved of order dated 17.12.2013 by which the executing court has rejected their objections and posted the matter for determination of share of the defendant nos.16, 17 and 18 in schedule-A properties. 2. Briefly stated, Partition Suit No.52 of 1970/74 was instituted for a preliminary decree for partition to the extent of 8 annas share for the plaintiffs in the schedule-A properties. The suit was decreed vide judgment dated 31.07.1975 observing that the plaintiffs together with the defendant no.16 are entitled for 8 annas shares in the suit property. A preliminary decree was prepared on 12.08.1975 and in the proceeding for preparation of final decree the defendant nos. 16 to 18 filed an application seeking permission to file objection before the Pleader Commissioner. This application was allowed, against which the writ petition vide W.P.(C) No.5074 of 2007 was filed by the plaintiffs. This writ petition was disposed of by order dated 01.11.2007 with liberty to the petitioners to raise objection to the Pleader Commissioner’s report. Accordingly, after the Pleader Commissioner submitted a report on 06.03.2008, the defendant nos. 16, 17 and 18 filed their separate objections to this report claiming that they along with the plaintiffs are entitled for half share in the schedule-A properties. The executing court by an elaborate order dated 11.05.2009 rejected the claim of defendant nos.17 and 18 and, in fact, their names were deleted. Against this order, the defendants came to this Court in W.P.(C) No.3017 of 2009. The writ petition was dismissed as withdrawn on 01.04.2010 and Title Appeal No.31 of 2010 preferred by them has also been dismissed as withdrawn on 20.04.2011. Thereafter, a petition on behalf of the defendant nos.17 and 18 was filed on 01.12.2011 in the court below for directing the Pleader Commissioner to prepare a takhta for 4 anna share each for defendant nos.16, 17 and 18. On this application, the executing court has passed the impugned order dated 17.12.2013. 3. Thereafter, a petition on behalf of the defendant nos.17 and 18 was filed on 01.12.2011 in the court below for directing the Pleader Commissioner to prepare a takhta for 4 anna share each for defendant nos.16, 17 and 18. On this application, the executing court has passed the impugned order dated 17.12.2013. 3. Stand taken by the petitioners is that once it is recoded by the trial Judge in its judgment dated 31.07.1975 passed in Partition Suit No.52 of 1970/74 that the defendant no.16, who is son of Dukhi Choudhary and grand-son of Mani Choudhary, did not claim his share in the suit land in his written-statement, in the final decree proceedings he cannot insist on allocation of his share in schedule-A properties. 4. Contention raised on behalf of the petitioners is that the executing court cannot go behind the decree and modify the judgment and decree passed in Partition Suit No.52 of 1970/74. 5. Mr. Sandeep Verma, the learned counsel for the respondents has, however, raised a preliminary objection to the maintainability of the writ petition on the ground that all that the trial Judge has done is to post the matter for determining the share of the defendant nos.16, 17 and 18. 6. In the first place, it needs to be recorded that in the judgment passed in Partition Suit No.52 of 1970/74 the trial Judge has recorded a finding that the suit land is the ancestral land of the parties and they are co-sharers. It has also been observed by the trial Judge that the defendant no.16 who has filed his separate written-statement but did not claim his share in the suit land, however, cannot be debarred from claiming his share in the suit land [Para-37]. The operative portion of the judgment reads as under: “Thus in view of my findings above I am inclined to hold that the plaintiffs have been able to establish their claim that the suit properties are joint properties of the parties and they are the members of the joint Hindu Mitakshra Family and the same has not yet been partitioned. As far as the claim of the plaintiffs to the extent of -/8/- annas in the suit land is concerned it does not hold good as I have already held above that the contesting defendant nos. As far as the claim of the plaintiffs to the extent of -/8/- annas in the suit land is concerned it does not hold good as I have already held above that the contesting defendant nos. 1 to 4 have got -/8/- annas share in the suit properties and the plaintiffs together with defendant no.16 have got -/8/- annas share in the suit property. The plaintiffs are entitled to a decree for partition of the suit land in the manner and to the extent indicated above.” 7. The suit was decreed partly to the above extent. From the judgment and decree prepared in Partition Suit No.52 of 1970/74, it is abundantly clear that the defendant no.16 has been found entitled together with the plaintiffs to the extent of half share in schedule-A properties. Now, in so far as defendant no.17 and 18 are concerned, the judgment and decree in the partition suit has attained finality on dismissal of First Appeal No.480 of 1975(R) and Title Appeal No.31 of 2010 has been dismissed as withdrawn and, therefore, the defendant nos. 17 and 18 now cannot lay a claim for their share in schedule-A properties. Liberty granted to the defendant nos.16, 17 and 18 by the writ Court vide order dated 01.11.2007 to raise objection would not alter the aforesaid position in law. The executing court, which has elaborately dealt with every aspect of the matter in its order dated 17.12.2013, however, has erred in law in still leaving the matter wide open. By now it is well accepted that a final decree proceeding must be concluded expeditiously so that a decree-holder is not deprived of the fruits of decree for decades together [refer, “Satyawati vs. Rajinder Singh & Anr.”- (2013) 9 SCC 491 ]. 8. Accordingly, the impugned order dated 17.12.2013 is modified to the extent that the defendant no.16 is entitled for his share alongwith the plaintiffs in the suit schedule properties. The learned counsel for the respondents submits that the defendant no.16, who along with the plaintiffs has been held entitled for half share in the schedule-A properties, is entitled for 1/4th share in half of the schedule-A properties. 9. The writ petition stands allowed in the aforesaid terms, with a direction to the executing court to appoint a Survey Knowing Pleader Commissioner within one month for allocating separate Takta for the parties.