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2019 DIGILAW 1764 (HP)

Sham Lal Chabba v. Om Prakash

2019-11-21

TARLOK SINGH CHAUHAN

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JUDGMENT : Tarlok Singh Chauhan, J. The defendant is the appellant, who aggrieved by the judgment and decree passed by the learned Courts below whereby the final decree of partition was ordered to be passed, has filed the instant appeal. 2. Brief facts of the case are that the suit filed by the plaintiffs/respondents for partition was decreed in their favour on 29.5.1980 by passing a preliminary decree for possession by partition of ½ share out of the suit property. In appeal, the preliminary decree was set-aside by the learned first Appellate Court vide judgment dated 29.5.1984. However, the said judgment and decree passed by the learned first Appellate Court was set-aside by this Court in appeal preferred by the plaintiffs/respondents No.1 to 5 vide judgment and decree dated 8.4.1994. 3. Thereafter, the plaintiffs on 25.3.1998 filed an application being CMA No. 31/98 before the learned trial Court which was not contested by any of the parties. Consequently, the learned trial Court proceeded to appoint a Local Commissioner to partition the suit property according to the preliminary decree, who submitted his report dated 30.6.2000 in the Court and on the basis of that report final decree came to be passed by the learned trial Court on 19.3.2001. 4. After passing of the preliminary decree and before the final decree could be passed, defendant No.1 Shakuntla Devi somewhere in 1997 sold a plot out of the suit property in favour of the present appellant Sham Lal and it is at his instance that an appeal came to be filed before the learned first Appellate Court against the final decree of partition. The sole ground taken by the appellant before the first Appellate Court was that the Local Commissioner had not submitted his report after giving notice to the appellant or his predecessor and that the Local Commissioner had wrongly conducted the measurement of the land particularly the plot which had been purchased by the appellant and wrongly allotted commercial area to the respondents more than their entitlement. The learned first Appellate Court after going through the grounds of appeal, dismissed the same, constraining the appellant/defendant to file the present appeal. 5. On 12.12.2008, the appeal came to be admitted on the following substantial questions of law: 1. The learned first Appellate Court after going through the grounds of appeal, dismissed the same, constraining the appellant/defendant to file the present appeal. 5. On 12.12.2008, the appeal came to be admitted on the following substantial questions of law: 1. Whether the report of the Local Commissioner on the basis of it only it vitiated an area as per entitlement of predecessor-in-interest of the appellant having not been given and judgments and decrees passed by Courts below having been passed upon the same, thus, are vitiated in law? 2. Whether learned First Appellate Court below invoked the provisions of Order 26 Rule 14(3) and Section 97 of the Code of Civil Procedure to non suit the appellant wrongly in law, as such, impugned judgments and decrees are vitiated? 6. I have heard learned counsel for the parties and have gone through the records of the case carefully. 7. Since both the substantial questions of law are intrinsically interlinked and interconnected, therefore, they were taken up together and are being disposed of by a common reasoning. 8. At the outset, it needs to be noticed that the appellant was not a party to the original suit or the proceedings between the parties and purchased some portion of the suit land after passing of the preliminary decree but before the final decree could be passed. Therefore, in such circumstances, the learned first Appellate Court committed no error by holding the sale to be hit by Rule of lis-pendence. Once that be so, obviously then the decree-holder was not bound to give any notice to the appellant. 9. In addition to the above, it would be noticed that the application moved by the plaintiff/decree-holder for passing of final decree was not contested by any of the defendants including the predecessor-in-interest of the appellant Shakuntla Devi and in such circumstances, the appellant cannot claim any larger right than the one possessed by his predecessor-in-interest as the appellant only stepped into the shoes of Shakuntla Devi. Therefore, once that be so, then no appeal was maintainable at the instance of the appellant. 10. Order 26 Rule 14 (3) reads as under: “14. Procedure of Commissioner: 1. & 2 xxx xxx xxx 3. Therefore, once that be so, then no appeal was maintainable at the instance of the appellant. 10. Order 26 Rule 14 (3) reads as under: “14. Procedure of Commissioner: 1. & 2 xxx xxx xxx 3. Where the court confirms or varies the report or reports it shall pass a decree in accordance with the same as confirmed or varied; but where the court sets aside the report or reports it shall either issue a new commission or make such other order as it shall think fit.” 11. There is a distinction between approaches under Order 26 Rules 10 and 12 on the one hand and under Order 26 Rule 14 on the other hand. While the Commissioner contemplated in the first two Rules are those appointed during the trial of the suit, the Commissioner under Order 26 Rule 14 is one appointed after passing a preliminary decree in a partition suit. However, the applicability of the aforesaid provision is not at all in question as the judgment-debtors including the predecessor-in-interest of the appellant did not choose to file any objection to the report of the Local Commissioner, which eventually led to the passing of the final decree of partition as would be evident from the order/judgment passed by the learned trial Court on 19.3.2001, which reads as under : “19.3.2001: Present: Sh. N.M. Sharma, adv. for the DH. None for the JD. Ld. Counsel for the DH has made a statement that he has no objection against the report of the L.C. and final decree be passed as per L.C. report. I have heard ld. Counsel for the DH/plaintiff and gone through the record. The report of the L.C. is accepted and the final decree is passed as per L.C. report dated 30.6.2000 and the suit land be partitioned accordingly. A decree sheet be drawn accordingly. Be consigned to the record room.” Both the substantial questions of law are answered accordingly. 12. In view of the aforesaid discussion, there is no merit in this appeal and the same is accordingly dismissed, so also the pending applications if any, leaving the parties to bear their own costs.