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Yakub HusaIn Vs. Bharat Indo and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in16Ind.Cas.372
AppellantYakub Husain
RespondentBharat Indo and ors.
Excerpt:
partition suit - second preliminary decree--appeal. - - he ordered separation by actual partition by metes and bounds of the shares thus ascertained from the rest of each of the houses in question and a formal order was drawn up which undoubtedly reads like a preliminary decree in a partition suit and fulfils all the conditions of such a decree embodying the declaration and the direction above stated. an appeal against this having been lodged to the court of the district judge, the learned district judge has held that the order complained of is not a decree and that no appeal lies against the same......behalf of the respondents on the ground that there cannot be more than one preliminary decree in a suit for partition and that the defendant should be content to wait for the passing of a final decree in the suit when he would be entitled, in appeal from such a decree, to challenge the correctness of the order now in question. after examining the record, it seem to me that this much is certainly clear, viz., that the learned subordinate judge conceived himself to be passing a second or supplementary preliminary decree in the suit, as if on an amended plaint. it is a little difficult to discuss the abstract question whether an appeal lies or not without allowing it to be complicated by the farther question whether the order complained of is a good order in law, or one which the learned.....
Judgment:

Piggott, J.

1. This was a suit for partition of certain houses. A preliminary decree was passed dismissing a portion of the claim, but declaring the plaintiffs' right to possession by partition of certain specified shares in each of the two houses. This declaration was, however, subject to a condition, vis., that a smaller fractional share in each house, that is to say, a portion of the share declared to belong to the plaintiffs was subject to a charge of Rs. 877 in favour of the defendant, Yakub Husain, and directing that the plaintiffs should pay the same before they could obtain possession. That decree was contested up to Letters Patent Appeal before this Court, and was substantially affirmed. The plaintiffs then presented to the Court of first instance an application to the effect that they had no desire to redeem the fractional shares subject to the charge of Rs. 877 but would be content with actual partition of a smaller share in each house r arrived at by deducting the share Subject to the charge from the share decreed in their favour in the preliminary decree. The learned Subordinate Judge, on receiving this application, proceeded to frame certain issues. He came to the conclusion that the plaintiffs were in effect abandoning a portion of their claim, and that they had a right to do this at any stage of the suit, even after the passing of the preliminary decree. Dealing with the question on this basis, he arrived at the conclusion that the plaintiffs were entitled, without making any payment at all, to a share of 73/108 in one house, and of one-third in the other. He ordered separation by actual partition by metes and bounds of the shares thus ascertained from the rest of each of the houses in question and a formal order was drawn up which undoubtedly reads like a preliminary decree in a partition suit and fulfils all the conditions of such a decree embodying the declaration and the direction above stated. An appeal against this having been lodged to the Court of the District Judge, the learned District Judge has held that the order complained of is not a decree and that no appeal lies against the same. This order is supported before me on behalf of the respondents on the ground that there cannot be more than one preliminary decree in a suit for partition and that the defendant should be content to wait for the passing of a final decree in the suit when he would be entitled, in appeal from such a decree, to challenge the correctness of the order now in question. After examining the record, it seem to me that this much is certainly clear, viz., that the learned Subordinate Judge conceived himself to be passing a second or supplementary preliminary decree in the suit, as if on an amended plaint. It is a little difficult to discuss the abstract question whether an appeal lies or not without allowing it to be complicated by the farther question whether the order complained of is a good order in law, or one which the learned Subordinate Judge was entitled to pass. I take the defendant's contention to be that the learned Subordinate Judge had no right to do any thing beyond correctly interpreting and carrying out the terms of the preliminary decree before him. If the learned Subordinate' Judge had dealt with the matter from this point of view, that is to say, that the only question before him was whether the preliminary decree as passed would or would not bear a certain interpretation, an order passed by him on this basis would be a mere interlocutory order only to be challenged by way of appeal from the final decree. The order before me, however, is not of this nature. It seems to me that the learned Subordinate Judge conceived himself to be dealing with the matter upon a new set of facts which had come into existence since the passing of the preliminary decree which had been appealed to this Court. He considered that the plaintiffs were abandoning a portion of their claim and had a right to take such a step with or without any formal amendment of the plaint even after a preliminary decree had been passed If this view is correct, it necessarily involves the passing of a second preliminary decree on a new set of facts. There is force in the analogy which was pressed upon me in argument between the present case and that of a plaintiff in a partition suit who acquires, by inheritance or otherwise, a farther share in the property in suit after the preliminary decree has been passed. If, however, the learned Subordinate Judge was mistaken in the point of view from which he regarded the plaintiff's application and if, as a matter of fact, nothing could happen. which would justify the passing of a second or supplementary decree, then his whole proceedings are open to question because he did not confine himself to merely interpreting the preliminary decree as originally passed, but undoubtedly thought it to be susceptible of modification in view of facts which had subsequently occurred, namely, the abandonment by the plaintiffs of a portion of their claim. To sum up, therefore, my opinion regarding this appeal, I hold that it is not in itself I an impossibility that there should be a second preliminary decree passed in a suit for partition if such second decree is based upon facts or circumstances alleged to have come into existence after the. passing of the first preliminary decree. I hold that the question whether, in the present case, any circumstance had or had not occurred since the passing of the first preliminary decree, sufficient to justify the passing of a second preliminary decree, is a question which has to do with the merits of the decision now called in question in appeal and not with the question whether an appeal lies. I hold that the order appealed against is in fact a second preliminary decree in this partition suit and was intended to be a second preliminary decree and was open to appeal to the District Judge. I, therefore, set aside the order of the lower Appellate Court and remand this case to that Court under the provisions of Order XLI, Rule 23 of the Code of Civil Procedure directing is to be re-admitted to the file of pending appeals and disposed of accordingly. Costs will abide the event.


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