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2022 DIGILAW 914 (CAL)

Radheshyam Bhartia v. Manju Bhartia

2022-06-27

KRISHNA RAO

body2022
JUDGMENT 1. The plaintiff has filed the instant application praying for drawing of a decree in terms of Judgment dt. 22.02.2021 passed in CS No. 100038 of 1995 (Old Suit No. 365A of 1995) by incorporating the Schedule A and Schedule B property as annexed with the plaint. 2. This Court vide Order dt. 22.02.2021 had passed the following order in GA No. 16 of 2018 in CS No. 100038 of 1995:- '22. In view of the discussions above, the contention of the defendants that a preliminary decree should not be passed in the suit, without first deciding as to whether, the suit properties are available for partition or not, cannot be sustained. The issue as has been raised is answered in the affirmative and in favour of the plaintiff. In the facts of the present case, since the shares between the parties are admitted, it would be appropriate to pass a preliminary decree declaring the shares of the parties to the suit. 23. There will be a preliminary decree declaring that, the plaintiff along with the defendant No. 1 series, and 2 to 4 have 1/6th share each. The defendant Nos. 5 and 6 have 1/12th share each in the suit properties. The issue as to whether the suit properties as described in schedule A and B of the plaint can be brought within the scope and ambit of the suit for partition is left open at this stage. 24. IA GA No. 16 of 2018 in CS No. 365A of 1995 is disposed of accordingly without any order as to costs.' 3. After the Judgment dt. 22.02.2021, the plaintiff had requested for drawing of the decree but the Master of this Court has not drawn up the decree with the reason that some of the pages of Schedule A and B of the plaint are ineligible to engross and directed the counsel for the plaintiff to comply the same. 4. Now the plaintiff has filed the instant application by annexing the legible copy of Schedule-A and Schedule-B property as Annexure C to the instant application and prayed for a direction for praying of a preliminary decree by incorporating Schedule-A and Schedule-B. 5. 4. Now the plaintiff has filed the instant application by annexing the legible copy of Schedule-A and Schedule-B property as Annexure C to the instant application and prayed for a direction for praying of a preliminary decree by incorporating Schedule-A and Schedule-B. 5. The Counsel for the defendants raised objection by submitting that the plaintiff is not entitled to declaration of his 1/6th share in the movable properties mentioned in the Schedule-A and Schedule-B. In the Judgment and Order dt. 22.02.2021 while declaring the shares of the plaintiff and the defendants held that whether the suit properties mentioned in the said Schedule can be brought within the scope and ambit of the suit for partition is left open. 6. The Counsel for the defendants submits that the issue is to be adjudicated upon evidence but inspite of the Judgment dt. 22.02.2021, the plaintiff has not taken any steps to prove movable properties of Ratan Lal Bhartia and Sita Devi Bhartia which are to be partitioned according to shares of respective parties. 7. Heard, the Ld. Counsel for the respondent parties perused the Judgment dt. 22.02.2021. In the Judgment dt. 22.02.2021, this Court had passed a preliminary decree declaring that the plaintiff along with the defendant no. 1 series and 2 to 4 have 1/6th share each, defendant nos. 5 and 6 have 1/12th share each in the suit properties. 8. In the said judgment this Court has specified that the issue as to whether the suit property described in the Schedule-A and Schedule-B of the plaint can be brought within the scope and ambit of the suit for partition is left upon. 9. The decree is defines in Section 2 (2) of the Code of Civil Procedure which reads as follows:- '2(2). 'Decree' means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include- (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include- (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. Explanation.- A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final;' 10. In the case of Shankar Balwant Lokhande (Dead) by LRs. v. Chandrakant Shankar Lokhande and Anr. reported in (1992) IILLJ 18 SC wherein it has been held that: '8. It has been seen that after passing of preliminary decree for partition, the decree cannot be made effective without a final decree. The final decree made in favour of the first respondent is only partial to the extent of his 1/6th right without any demarcation or division of the properties. Until the rights in the final decree proceedings are worked out qua all and till a final decree in that behalf is made, there is no formal expression of the adjudication conclusively determining the rights of the parties with regard to the properties for partition in terms of the declaration of 1/6th and 5/6th shares of the first respondent and the appellants so as to entitle the party to make an application for execution of the final decree. 10. As found earlier, no executable final decree has been drawn working out the rights of the parties dividing the properties in terms of the shares declared in the preliminary decree. The preliminary decree had only declared the shares of the parties and properties were liable to the partitioned in accordance with those shares by a Commissioner to be appointed in this behalf. Admittedly, no Commissioner was appointed and no final decree had been passed relating to all.' 11. Vide Judgment dt. 22.02.2021, this Court has passed the preliminary decree declaring the share of the respective parties but with regard to partition of the properties is left open and thus this Court is of the view that for partition of the suit, the plaintiff has to prove whether the suit properties are capable of partition or not. Vide Judgment dt. 22.02.2021, this Court has passed the preliminary decree declaring the share of the respective parties but with regard to partition of the properties is left open and thus this Court is of the view that for partition of the suit, the plaintiff has to prove whether the suit properties are capable of partition or not. Thus, if the Schedule of property A and B of the plaint which is annexed as Annexure C to the instant application is included in the preliminary decree, no prejudice will be caused to the defendant. 12. In view of the above, the Department is directed to drawn up a preliminary decree by including the Schedule-A and Schedule-B of the plaint as mentioned in Annexure C of the plaint. GA No. 17 of 2022 is thus disposed of.