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Ghanashyam Martha Vs. Brundaban Pradhan and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 13 of 1976
Judge
Reported inAIR1977Ori154; 43(1977)CLT453
ActsCode of Civil Procedure (CPC) , 1908 - Sections 2(2) - Order 20, Rule 18
AppellantGhanashyam Martha
RespondentBrundaban Pradhan and anr.
Appellant AdvocateA.B. Misra and ;P.N. Mohapatra, Advs.
Respondent AdvocateR.C. Patnaik and ;P.K. Misra, Advs.
DispositionRevision dismissed
Cases ReferredBambathi Bibi v. Chariya Maliyammal
Excerpt:
.....ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - 6. the legal position is well settled that a partition suit must be deemed to be pending till a final decree is actually passed and that any number of preliminary decrees can be passed therein. 9. applying the principles laid down in the aforesaid decisions to the facts of this case i hold that the contention raised on behalf of the petitioner is not well founded and the same must be rejected......into three equal shares and allotment of one such share to each of the parties. during the final decree proceedings the opposite party no. 1 filed a petition on 5-9-73 praying for a direction to the commissioner to adjust to the share of the petitioner 1.97 acres of lands alienated by him to third parties prior to the suit. the petitioner and opposite party no. 2 filed counters contending, inter alia, that the opposite party no. 1 had also transferred 0.36 acre of lands to one arakhri naik prior to the institution of the suit and that those lands should be adjusted to his share. the learned subordinate judge on a consideration of the oral and documentary evidence produced by the opposite party no. 1 came to hold thai 0.50 acre of land out of plot no. 102 under khata no. 234 and.....
Judgment:
ORDER

P.K. Mohanty, J.

1. Petitioner and opposite party No. 1 are brothers, the former being the elder and opposite party No. 2 is their mother. Opposite party No. 1 filed O. S. No. 51 of 1970 in the Court of the Subordinate Judge, Nayagarh against the petitioner and opposite party No. 2 for partition of 13.52 acres of land and 3 preliminary decree was passed directing partition of the properties into three equal shares and allotment of one such share to each of the parties. During the final decree proceedings the opposite party No. 1 filed a petition on 5-9-73 praying for a direction to the Commissioner to adjust to the share of the petitioner 1.97 acres of lands alienated by him to third parties prior to the suit. The petitioner and opposite party No. 2 filed counters contending, inter alia, that the opposite party No. 1 had also transferred 0.36 acre of lands to one Arakhri Naik prior to the institution of the suit and that those lands should be adjusted to his share. The learned Subordinate Judge on a consideration of the oral and documentary evidence produced by the opposite party No. 1 came to hold thai 0.50 acre of land out of plot No. 102 under Khata No. 234 and 0.23 acre of land appertaining to plot No. 730 under khata No. 235 of village Krishnaprasad which were transferred by defendant No. 1 (petitioner) prior to the suit should be adjusted towards his share. He also held that 0.06 acre of land appertaining to plot No. 1405. 0.11 acre of land appertaining to plot No. 892 and 0.19 acre of land appertaining to plot No. 904/1462 i.e. in all, 0.36 acre transferred by the plaintiff prior to the suit should be adjusted to his share. Accordingly he directed the Commissioner that while effecting the partition he should adjust those properties to the shares of the defendant No. 1 and the plaintiff. Aggrieved by this decision, the petitioner has preferred this Civil Revision.

2. It is urged on behalf of the petitioner that the court below had no jurisdiction to entertain the plaintiff's petition after passing of the preliminary decree, specially when the plaintiff did not make any prayer for such a relief in the plaint. Opposite party No. 1 on the other hand contended that the order sought to be revised is a decree within the meaning of Section 2 of the C. P. Code and it would therefore be appealable as a decree and the Civil Revision is not maintainable.

3. The question that arises for consideration is whether the impugned order is an 'order' within the meaning of Section 2(14). C.P.C. or a 'decree' within the meaning of Section 2(2). C.P.C.

4. Section 2(14), C.P.C. defines 'order' as the formal expression of any decision of a civil court which is not a decree. 'Decree' is defined in Section 2(2), C.P.C. as the formal expression of an adjudication which 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. The Explanation to Section 2(2) makes it clear that the decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of and it is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final.

5. There was a serious dispute between the parties regarding allotment of the alienated lands. It was contended on behalf of the defendants that the defendant No. 1 made the alienation in his capacity as the karta of the joint family and as such it was binding on all the members of the joint family. The plaintiff's contention was that the alienations made by defendant No. 1 were for his own benefit and not for the benefit of the joint family. The court below on a consideration of the evidence on record decided that the alienations made by the plaintiff and defendant No. 1 were for their own benefits and accordingly directed that the lands alienated should be adjusted to the shares of the alienors in my opinion, the impugned order amounts to an adjudication of the substantive rights of the parties and it will therefore amount to a preliminary decree.

6. The legal position is well settled that a partition suit must be deemed to be pending till a final decree is actually passed and that any number of preliminary decrees can be passed therein. The incidents of a suit for partition have been considered by the Supreme Court in Phoolchand v. Gopal Lal, AIR 1967 SC 1470. The Court held:

'We are of opinion that there is nothing in the Code of Civil Procedure which prohibits the passing of more than one preliminary decree if circumstances justify the same and that it may be necessary to dc so particularly in partition suits when after the preliminary decree some parties the and shares of other parties are thereby augmented. We have already said that it is not disputed that in partition suits the Court can do so even after the preliminary decree is passed. It would in our opinion be convenient to the court and advantageous to the parties, specially in partition suits, to have disputed rights finally settled and specification of shares in the preliminary decree varied before a final decree is prepared. If this is done, there is a clear determination of the rights of parties to the suit on the question in dispute and we see no difficulty in holding that in such cases there is a decree deciding these disputed rights; if so, there is no reason why a second preliminary decree correcting the shares in a partition suit cannot be passed by the Court'

Wanchoo, J. speaking for the Court, then went on to hold:

'So far therefore as partition suits are concerned we have no doubt that if an event transpires after the preliminary decree which necessitates a change in shares, the Court can and should do so; and if there is a dispute in that behalf, the order of the Court deciding that dispute and making variation in shares specified in the preliminary decree already passed is a decree in itself which would be liable to appeal.'

7. In the case of Basavayya v. Guravayya, AIR 1951 Mad 938 (FB) after the preliminary decree for partition was passed the plaintiff applied for an enquiry into the profits of the properties realised by the defendants subsequent to the institution of the suit and a final decree for his share of such profits. The defendants opposed the application on the ground that there was no prayer in the plaint for the recovery of such profits and that the preliminary decree passed in the suit did not direct an enquiry into the same. The trial court overruled the objections and directed enquiry against which a revision petition was filed. The Full Bench dealt with the scope and effect of Order 20, Rule 12, C.P.C. and held that the claim of the plaintiff suing to partition and his share of the profits accruing from the lands pending suit is not properly speaking a claim for 'mesne profits' and that Order 20, Rule 12, C.P.C. has no application to such a case. But, Order 20. Rule 18, Sub-clause (2) would be applicable. Their Lordships summarised their conclusions as follows:

'A partition suit in which a preliminary decree has been passed is still a pending suit and the rights of the parties have to be adjusted as on the date of the final decree: Judunath v. Parameswar, ILR (1940) 1 Cal 255 : (AIR 1940 PC 11). In such a suit the Court has not only to divide the common properties but has also to adjust the equities arising between the parties out of their relation to the common property the property to be divided. The preliminary decree determines the moieties of the respective parties and thereby furnishes the basis upon which the division of the property has to be made. There are other matters in addition to the moieties of the parties that have to be considered and decided before an equitable final partition can be effected. Among them are the realisation of common out standings, the discharge of common liabilities, the distribution of the profits of the properties realised pending the suit, either in cash or by allotment of property of the requisite value, the grant of owlets, the provision of maintenance of parties entitled thereto, the allotment of lands on which improvements have been effected to the sharer who has improved them, the allotment of alienated lands to the share of the alienor and other similar matters. Even after the passing of the preliminary decree it is open to the Court to give appropriate directions regarding all or any of these matters either suo motu or on the application of the parties. Order 20, Rule 18, Civil P. C. does not prohibit the court from issuing such directions after the stage of a preliminary decree. It is open to the Court in order to prevent multiplicity of litigation and to do complete justice and effect an equal division of all the common assets and properties among the parties, to direct an enquiry into the profits received or realised by one or some of them during the pendency of the suit and to award the others their proper share of such profits under its final decree. This enquiry can be ordered either as part of the preliminary decree itself or subsequently as a step towards the passing of the final decree, and in either case the result of the enquiry has to be incorporated in the final decree.'

This Full Bench decision was followed in AIR 1958 Andh Pra 517 (Rachepalli Atchemma v. Yerragunta Rami Reddi), AIR 1958 Andh Pra 520 (Simma Krishanamma v. Nakka Latchumanaidu), AIR 1963 Mad 171 (Ponnuswami v. Santhappa), AIR 1972 Mad 216 (B.N. Thigarajan v. B. N. Sundaravelu) and AIR 1975 Mad 208 (Lakshmi Animal v. Subbaraj). It was also followed in AIR 1954 Orissa 223 (Basu Behera v. Dombaru Behera) and cited in AIR 1967 SC 155 (Gopalkrishna Pillai v. Meenakshi Ayal). In AIR 1954 Orissa 223 while construing the provisions of Order 20, R. IB. C.P.C. this Court laid down as follows:--

'The Rule therefore empowers the Court to 'pass a preliminary decree merely declaring the right of the parties and giving such further directions as may be required from time to time. It is common knowledge that in a suit for partition various disputes are likely to crop up all of which cannot be disposed of at the trial. The Code, therefore, provides that the rights of the parties may be determined in the. first instance and their disputes regarding divisions, allotments, ascertainment of assets and libilities, etc. may be disposed of before a final decree is passed. All that the court does in passing the preliminary decree is to declare the rights of the parties and the nature of their rights, and until the disputes are finally disposed of and a final decree is passed the suit must be deemed to be pending. During this period the court may give such directions as may be necessary from time to time to adjust the equities between the. parties as regards the valuation of the properties and their allotment to individual shares and decide all other incidental matters that may arise.'

8. In AIR 1968 Ker 282 (Mavimu alias Bambathi Bibi v. Chariya Maliyammal) a preliminary decree for partition had been passed and final decree proceedings were pending. The Commissioner had submitted his report dividing the properties by metes and bounds. On the application of some of the parties the Court directed that since it was not convenient to divide item 1 by metes and bounds among the sharers it should be sold in public auction and direction was issued to the Commissioner to sell the same. A civil revision was preferred against this order. The High Court held that the direction regarding sale of the property was a final adjudication of the rights of the parties in regard to the mode of division and would therefore amount to a preliminary decree and hence appealable though no formal decree had been drawn up.

9. Applying the principles laid down in the aforesaid decisions to the facts of this case I hold that the contention raised on behalf of the petitioner is not well founded and the same must be rejected. The impugned order satisfies all the requirements of the definition of decree as denned in Section 2(2). C.P.C. and it is open to appeal. This Civil Revision is not maintainable.

10. In the result, the Civil Revision is dismissed but in the circumstances without any order as to costs. The learned Subordinate Judge is directed to draw up a formal decree in terms of his order dated 30-9-75. This decree will be treated as a second preliminary decree in the suit.


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