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2019 DIGILAW 2165 (RAJ)

Farukh Nadeem Khan v. Gulbibi

2019-08-09

PRAKASH GUPTA

body2019
ORDER : Prakash Gupta, J. 1. The instant civil first appeal has been preferred against the impugned judgment and decree dated 06.04.2018 passed by the learned Additional District Judge No. 4, Kota whereby the learned judge proceeded to reject the objections on Commissioner's report and passed the final judgment and decree of partition, rent, mesne profit as well as possession. 2. Facts in nutshell are that on 26.09.1967, Zakia Begum, daughter of late Mohammad Ibrahim Khan, filed a civil suit for partition, possession of her 7/8 8th share and mesne profit against the remaining legal heirs of Ibrahim Khan. A preliminary decree came to be passed on 27/4/1974, against which first appeal was filed before this Court which was decided on 14/8/1986, against which second appeal was filed by Gulbibi-respondent No. 1 herein before the division bench which came to be dismissed on 14/10/2015. Thus, the preliminary decree attained finality. Plaintiff made an application for final judgment and decree, which came to be passed vide order dated 6/4/2018. 3. Learned counsel for the appellants-objector has contended that the determination of share was done by this Hon'ble Court allowing the first appeal (139/1974) vide judgment dated 14.8.1986 by which the suit of plaintiff-respondent No. 7 came to be decreed partly and preliminary decree was accordingly drawn on 27.4.1974. When the first report of the Commissioner for partition was submitted, objections were raised, however, in view of the fact that this Hon'ble Court restrained the court below not to pass any final decree, the same was kept pending. The Second Appeal No. 52/1986 was dismissed vide judgment and decree dated 14.10.2015 by Division Bench of this Hon'ble Court. Under the preliminary decree, the share of the plaintiff came to be determined as 7/88 and the share of defendant No. 1 Gulbibi came to be determined as 11/88 and share of defendants No. 2 to 6 was determined as 14/88 and issue regarding determination of the share has already attained finality. From 1967, the status, possession, position and even other circumstance/factors came to be changed, hence the share ought to have been considered accordingly and the court below while passing the final judgment and decree ignored all the changed circumstances. From 1967, the status, possession, position and even other circumstance/factors came to be changed, hence the share ought to have been considered accordingly and the court below while passing the final judgment and decree ignored all the changed circumstances. He further contended that the court below has also failed to take into consideration the fact that several defendants and even plaintiffs expired during the pendency of the suit and several substituted defendants settled in foreign countries, the effect of abandoning the properties or acquiring foreign citizenship was ignored by the learned court below. The defendant No. 4 Khalil Ahmed expired, who was not having any legal representative, therefore, doctrine of return ought to have been observed and considered. The principle of increase and decrease of the shares on death of the parties was totally ignored, the possession and position over immovable properties was totally changed, the substituted legal representatives are left to contest further for their shares. When the second Commissioner's report dated 22.3.2018 was found defective, the learned court below ought to have considered objections, facts and circumstances. 4. Learned counsel for the appellants-objector further contended that trial court has committed an illegality while deciding the application dated 26.5.2016 filed by the appellant No. 2-Dr. Khalid Khan and his mother Khurshida Begum holding that the re-determination of the share cannot be made, hence, flouted the principle of doctrine of return which was required to be considered in view of death of several parties and in the entire changed circumstances, re-determination of the share of respective substituted parties was required to be done. It is further submitted that the suit was filed in the year 1967 and a preliminary decree came to be passed by this Hon'ble Court on 14.10.2015 and during this long period of around 5 decades, all the parties expired except the defendant No. 6 Sakil Ahmed and the application was dismissed in cursory manner. 5. Learned counsel for the appellants-objector has contended that several immovable properties referred in "Annexure-A" were not even continued in revenue record in the name of the parties and after filing of the suit, the position of the agricultural lands was also changed, therefore the court below ought to have considered all the aspects of the title, possession, position and revenue record in respect of the immovable agricultural lands. The report ought to have been taken from Tehsildar, Collector or the concerned revenue officer. The trial court proceeded to direct for auction of the properties described in the "Annexure-A" and distributed the sale consideration in view of the share determined under the preliminary decree, therefore, the impugned order dated 6/4/2018 is liable to be set aside. 6. Learned counsel for the appellants-objector has placed reliance on the case of Phoolchand And Anr. Versus Gopal Lal, 1967 AIR 1470, 1967 SCR (3) 153, in which it has been held: "We therefore hold that in the circumstances of this case it was open to the court to draw up a fresh preliminary decree as two of the parties had died after the preliminary decree and before the final decree was passed. Further as there was dispute between the surviving parties as to devolution of the shares of the parties who were dead and that dispute was decided by the trial court in the present case and thereafter the preliminary decree already passed was amended, the decision amounted to a decree and was liable to appeal. We therefore agree with the view taken by the High Court that in such circumstances a second preliminary decree can be passed in partition suits by which the shares allotted in the preliminary decree already passed can be amended and if there is dispute between surviving parties in that behalf and that dispute is decided the decision amounts to a decree." 7. On the other hand, learned Counsel for the respondents has supported the decree passed by the trial court. 8. I have heard learned counsel for the parties and perused the relevant material available on record. 9. In the present case, indisputably, plaintiff-Smt. Jakia Begam filed a suit against Smt. Gulbibi, Shri Jamil Ahmed Khan, Jalil Ahmed Khan, Khalil Ahmed khan, Akil Ahmed Khan and Shakil Ahmed Khan. During the pendency of the proceedings, except Shakil Ahmed Khan-defendant No. 6, the plaintiff and other defendants died. 9. In the present case, indisputably, plaintiff-Smt. Jakia Begam filed a suit against Smt. Gulbibi, Shri Jamil Ahmed Khan, Jalil Ahmed Khan, Khalil Ahmed khan, Akil Ahmed Khan and Shakil Ahmed Khan. During the pendency of the proceedings, except Shakil Ahmed Khan-defendant No. 6, the plaintiff and other defendants died. The defendant No. 4-Khalil Ahmed Khan died issueless, therefore, the principle of increase and decrease of the shares on death of the parties should also have been taken into consideration and the share of the plaintiff-Zakia Begam i.e., 7/88 and the share of defendant No. 1 Gulbibi i.e., 11/88 and share of defendants No. 2 to 6 i.e., 14/88 should have also been taken into consideration by the trial court before passing the decree. The court below also failed to take into consideration the fact that some of the parties have allegedly acquired foreign citizenship, if so, then what is its effect on shares of the parties? The trial court illegally failed to take into consideration all these relevant aspects before passing the final decree. The valuation of the properties was also not done properly by the Commissioner as per the present status, position and possession in the report, therefore the impugned judgment and decree is liable to be set aside. 10. For the reasons stated above, this appeal is allowed and the impugned judgment and final decree dated 06.04.2018 passed by the learned Additional District Judge No. 4, Kota is quashed and set aside and the matter is remanded back to the Additional District Judge No. 4, Kota for re-determination of the shares of the parties as per law and pass the preliminary decree afresh. 11. Both the parties are directed to remain present in the trial court on 29/8/2019.