I.N. Modi, J.
1. This is an appeal by the defendant Thakurji Sriji, which being a temple has been filed through Gulabchand and others against the judgment of the Senior Civil Judge, Jaipur, dated 16-9-1953, in a suit for pre-emption. The appeal raises a point which is interesting and which does not appear to be directly covered by authority,
2. The facts in so far as they bear on the contentions raised before me in this appeal may be stated very shortly. Certain rooms and a verandah in a house situate in Chowkdi Ghat Darwaza, Gheewalon-ka-Rasta in the city of Jaipur belonged to one Moolchand. The latter sold them to Thakurji Sriji situate in the same building by a registered deed dated 23-2-1948. The respondent Mst. Gulab Bai filed a suit for pre-emption on the ground that she was a co-sharer in the same building. The suit was brought on 28-7-1948. The trial Court partly decreed the suit by its judgment and decree dated 31-7-1952, and the operative portion of the decree was in these terms:
'The plaintiff and the defendant Thakurji Sriji do have equal rights of pre-emption and therefore they are entitled to share the suit properties in equal shares..... and so a pre-emption decree to the extent of half of the disputed property is passed in favour of the plaintiff against the defendant on payment of a sum of Rs. 412/8/-. The parties to bear their own costs. The plaintiff must deposit this money in Court within one month of the date of the decree in default whereof the plaintiff's suit shall stand dismissed.'
The plaintiff deposited the sum of Rs. 412/8/- in Court in pursuance of the decree on 22-8-1952.
The plaintiff also made an application while depositing the money that physical possession be handed over to her of half of the suit properties decreed in her favour by a partition and a commissioner be appointed for the purpose. A notice was issued to the defendant to show cause why a commissioner be-not appointed to make a partition as prayed.
On 3-11-1952, defendant's counsel Mr. Sagar-mal stated that he had no objection to a partition being effected, and, consequently, a commissioner was appointed to effect two equal divisions of the suit properties. The commissioner in due course submitted his report whereupon the Court directed the parties to file their objections, if any. The defendant raised certain objections and these were gone-into, and eventually the Court passed what it characterized a final decree on 6-7-1953. By this final decree, the Court allotted rooms Nos. 1, 2 and 3 to the defendant appellant and rooms Nos. 4 and 5 to the plaintiff Gulab Bai and directed that the intervening door between room No. 5 and rooms Nos. 2 and 3 be closed, and that the plaintiff do further pay a sum of Rs. 76/12/- to the defendant.
Aggrieved by this, the defendant went in appeal to the Senior Civil Judge, Jaipur, who by his judgment and decree dated 16-9-1953, partly allowed it and directed that the door between rooms Nos. 2 and' 3 on the one hand and room No. 5 on the other shall be closed by the plaintiff at her own cost after the defendant has opened a door facing north in room No. 2 and a further direction was given that the defendant do open this door within one month of the decree. The defendant has now come up in appeal against the aforesaid decree to this Court.
3. The principal contention which has been raised before me is that the Courts below have fallen into grave error in passing the order which they did after the trial court's decree was passed on. 31-7-1952, inasmuch as once that decree had been passed, the pre-emption suit was finally decided and the trial Court had no further judicial function to perform in respect of the complete disposal of the suit, and, therefore, all the proceedings taken by the Courts below after 31-7-1952, were erroneous and without jurisdiction.
In the second place, it is also contended that the particular division which has been directed by the Courts below is unfair to the defendant and should be modified as prayed in the grounds of appeal. I consider it unnecessary to give the details of the changes proposed by the appellant, as I am of opinion that if the first contention raised above has no force, this Court would not be justified in interfering with the decree passed by the lower appellate Court.
4. The question which in these circumstances-emerges for consideration is whether the trial Court had any jurisdiction to embark upon a division of the properties in suit after it had passed the decree dated. 31-7-1952, in a case like the present. The answer to this question depends upon what was the precise nature or character of the decree passed by the Court in this pre-emption suit. It is contended on the side of the appellant that the decree passed by the trial Court was a final decree which completely disposed of the suit as respects the Court passing the decree, while on the other hand it is contended for the plaintiff that the decree in question was only a preliminary decree which did not completely dispose of the suit and it was necessary to pass a final decree therein in order to completely dispose of the suit and that such a decree was in fact passed later when the Court directed the delivery of a specific half portion of the suit properties to the plaintiff.
5. It was also contended that the objection which was sought to be raised by the defendant in this Court had not been raised in any of the twoCourts below, and in fact counsel for the defendant had gone to the length of stating that he had no objection whatsoever to the making of the partition, and, therefore, such an objection should not be allowed to be raised now.
6. Now, so far as the last-mentioned objectionis concerned, I should like to say at once that where it is a question of inherent lack of jurisdiction, no amount of consent of any of the parties can confer jurisdiction on a court which it does not possess. Either the Court had jurisdiction to proceed in the manner in which it did or it had not. If it had the jurisdiction, well and good. But if it did not have the same then I have no doubt that the proceedings would be without jurisdiction, and no amount of consent thereto on the part of counsel of any of the parties could cure the defect.
7. This brings us back to the question whether the trial Court had any judicial function to perform after it had passed its decree) on 31-7-1952, whereby it had decreed the possession of half portion of the suit premises on payment of a certain amount by a certain date and it further ordered that if such payment were not to be made within the time specified, the plaintiff's suit would stand dismissed.
8. Order 20 of the Code of Civil Procedure provides the various forms of decrees which a court may pass in various kinds of suits. Thus Rule 12 deals with the decree to be passed in a suit for possession of immovable property and for rent or mesne profits both in the past and future. Sub-rule (2) lays down that where the decree directs an inquiry as to the rent or rnesne profits in the past or with respect to them from the institution of the suit until delivery of possession, a final decree in respect of such rent or mesne profits has to be passed in accordance with the result of such inquiry.
It may be pointed out, however, that it is open to the Court to dispense with such an inquiry whether with respect to mesne profits in the past Or to those for the future depending on the circumstances of a given case and where such a course is justified, it may at once pass a final and executable decree in respect of such profits. Thus it was held in Ganeshi Lal v. Snehalata Dassi AIR 1947 Cal 68 that though it was usual for the Court to pass a preliminary decree regarding mesne profits accruing after the commencement of the suit, nevertheless the Court would be quite within its rights if it passed a final decree for mesne profits payable subsequently to the suit if, in the circumstances of the case, an inquiry was unnecessary or waived by the parties.
Reference was made in this case to the view of Sulaiman C.I. in A.P. Bagchi v. Mrs. F. Morgan AIR 1937 All 36 according to which if the plaintiff claimed mesne profits on the basis of rent which was fixed and agreed upon between the parties, or if the court decided that mesne profits ought to be allowed on that basis, the amount being definitely ascertained, there would be no occasion for passing a preliminary decree at all. The priciple which is thus established is that whether a preliminary decree should be passed in a suit for possession and mesne profits will depend on the facts and circumstances of each case.
Similarly, Rule 15 of Order 20 provides that in a suit for dissolution of partnership and/or rendition of accounts, the Court may, before passing a final decree, pass a preliminary decree, defining the proportionate share of the parties and also fixing the day on which the partnership must stand dissolved or directing accounts to be taken. It may also be pointed out, however, that where the shares of the parties are admitted and so also the factum and the date of dissolution, the Court need not pass a preliminary decree. Then we come to Rule 16 which also contemplates the passing of a preliminary decree in a suit between a principal and an agent, and in any other suit not specifically provided for, where it may be necessary, in order to ascertain the amount of money due to or from any party, directing that an account be taken, and after such accounts are taken, a final decree for money is passed as being a proceeding in die suit itself, and it is that which terminates the suit.
The Code of Civil Procedure, however, makes a specific provision under Rule 18 for the kind of decree to be passed in a suit for partition of im-moveable property or for separate possession of a share therein. We are not concerned with Sub-rule (1) of this rule which deals with an estate assessed to the payment of revenue to the Government, and in such a case, the decree passed by the civil court is merely declaratory and the actual partition is left to be effected by the Collector or such other person to whom such powers have been delegated by competent authority. Sub-rule (2) deals with other properties, and in such a case it is provided that if the partition or separation cannot be conveniently made without further inquiry, the Court may pass a preliminary decree declaring the rights of the several parties interested in the property and giving such further directions as may be required.
Even here, the point to note is that it is not obligatory for the Court to pass a preliminary decree, and it is only where a partition cannot be conveniently made without a further inquiry that a preliminary decree is required to be passed leaving the actual partition to be made later on. It may also be pointed out that after a preliminary decree has been passed in a partition suit, the proper course for the plaintiff desiring separate possession of his share is to apply for a final decree and not to bring a fresh suit for the purpose.
9. I now come to a decree in a pre-emption suit which is provided for by Rule 14 of Order 20. This rule reads as follows :--
'14. Decree in pre-emption suit---
(1) Where the Court decrees a claim to pre-emption in respect of a particular sale of property and the purchase-money has not been paid into court, the decree shall-
(a) specify a day on or before which the purchase-money shall be so paid, and-
(b) direct that on payment into court of such purchase-money, together with the costs (if any) decreed against the plaintiff, on or before the day referre-1 in Clause (a), the defendant shall deliver possession of the property to the plaintiff, whose title thereto shall be deemed to have accrued from the date of such payment, but that, if the purchase-money and the costs (if any) are not so paid, the suit shall be dismissed with costs.
(2) Where the court has adjudicated upon rival claims to pre-emption, the decree shall direct,--
(a) if and in so far the claims decreed are equal in degree, that the claim of each pre-emptor complying with the provision of Sub-rule (1) shall take effect in respect of a proportionate share of the property including any proportionate share in respect of which the claim or any pre-emptor failing to comply with the said provisions would, but for such default, have taken effect; and
(b) if and in so far as the claims decreed are different in degree, that the claim of the inferior preemptor shall not take effect unless and until the superior pre-emptor has failed to comply with the said provisions.'
10. It seems to me that the decree passed in the present case properly falls under Sub-rule 2 (a) of this rule, as the decree for pre-emption was in respect of a proportionate share of the property.
11. The question appears to have been raised in some cases as to whether a preemption decree passed in terms of the afore-said rule is only a preliminary decree, inasmuch as the right of the preemptor is directed by the decree to ripen only on payment by him into court of such purchase-money together with costs, if any, decreed against the plaintiff on a date specified by the decree.
Such a question was raised in Janga Singh v. Lachhmi Narain AIR 1920 Oudh 25, and it was held that a condition attached to a decree upon the fulfilment of which only the decree-holder can enjoy the fruits of the decree, does not make such a decree preliminary. This decision proceeded upon the ratio that the condition that is attached to the decree did not and cannot arrest the complete dis-posal of the suit and that the court after having passed such a decree has no furdier judicial function to perform in respect of the complete disposal of the suit.
It was also pointed out that though at a subsequent stage the court may be called upon to determine whether the requirements of the decree had been complied with, e.g., where the payment made is questioned as having been made beyond time but all that would merely involve the question of the construction of the decree, or as I might put it, the question of due compliance with ft and that would not amount to a fresh adjudication of the rights of the parties with respect to any of the matters in controversy in the suit. I am in respectful agreement with this view.
12. It may be pointed out, however, that the precise question which has been raised before me did neither arise in the aforesaid case nor was it decided.
By parity of reasoning, however, I am disposed to hold that a decree passed with respect to a proportionate share of the suit property under Sub-rule (2) of Rule 14 is a decree which completely disposes of the suit as respects the court passing it and that there is nothing in such a decree which could rightly arrest the final disposal of the suit.
It was, therefore, a final decree and not a merepreliminary decree. The courts below seem to me tohave fallen into some kind of confusion when theyentertained the view that a decree for pre-emptionwhere a claim has been decreed with respect to aproportionate share of the suit property is somethinglike a decree for partition by separate possession. Tomy mind, such a decree in a pre-emption suit is verydifferent from a decree in a partition suit.
A decree for separate possession of a specific share in a partition suit would not terminate the suit until the property decreed is demarcated because it is only in that way that separate possession can be decreed. This cannot be postulated, however, of a decree in a pre-emption suit because the court is not required to deliver by separate possession the property decreed where it is only an undemarcated of the entire suit property. The correct position in law, to my mind is that as soon as such a decree is passed, it is a final decree so far as the court passing it is concerned and it terminates the suit, and the moment as the 'court has passed such a decree, that court has no further judicial function to perform with respect thereto.
I wish to point out that a decree for preemption is essentially decree for possession but not necessarily for separate possession of the property sought to be pre-empted. I entirely agree that where a suit for possession so also a suit for pre-emption has been decreed, and the property is capable of immediate actual possession, such possession must be delivered under Sub-rule (1) of Rule 35 of Order 21; but where this cannot be done as in the case of a decree for joint possession, or, which is the same thing in a decree for pre-emption of a proportionate share, the entire property being in the possession of the vendee, as in the present case, such a decree is capable of execution in accordance with Sub-rule (2) of the said rule.
In other words, possession can be delivered by affixing a copy of the warrant in some conspicuous place on the property and proclaiming by beat of drum, or other customary mode, at some convenient place, the substance of the decree. The delivery of possession in such a case is merely symbolical and not physical. But all the same, it is perfectly effective. Where, however, the decreeholder wants separate possession of the property decreed in his favour, the proper course for him, as I look at the whole matter, is to file a suit for partition by separate possession, and it is in such a suit that all the equities raised by the parties as to what would be a just and fair partition could be properly decided and not in the pre-emption suit itself.
13. I may also draw attention in this connection to Article 10 of the Limitation Act which provides for varying starting points of limitation for pre-emption suits where the purchaser takes under the impugned sale physical possession of the whole of the property sold as contra-distinguished from suits where the subject of sale does not admit of physical possession, The limitation of one year in the first case is prescribed to start from the date when the vendee took physical possession of the whole of the property, where as in the second category of cases, it is laid down that it will start from the date when the instrument of sale is registered.
It is true that in the present case the vendee did take possession of the whole of the property sold to him, and, therefore, the limitation provided by the second clause of the third column is not attracted into application. The point, however which I wish to make is that, in a suit for pre-emption, it is not always necessary that the pre-emptor can be held to be entitled to actual physical possession, and the right to pre-empt may well arise in respect of property which does not admit of physical possession such as where it may be raised with respect to the sale of an undivided share in the property.
This clearly Brings out that a suit for pre-emption cannot be equated with a suit for partition as learned counsel for the plaintiff sweepingly suggests. The two suits are essentially different in nature, and consequently the decrees to be passed therein must also vary in their essential character. The view which I feel persuaded to accept therefore is that where pre-emption is sought in respect of an undivided share in property which has been sold, the pre-emptor is suit is a suit for possession of that snare and when such a suit is decreed, the correct legal position is that any decree which is passed with respect to such a share in favour of the plaintiff is a final decree without more and is perfectly capable of execution according to law.
Further, what is true of a suit brought for preemption of an undivided share in property must equally be true of the suit where rival claims for pre-emption have been set up and the suit has been decreed according to the proportionate share of the parties in law.
The decree in either of the cases discussed above is final and not preliminary and it cannot be stated with respect to either of them that the complete disposal of the suit has not been made and that such a cfisposal can only occur when separate possession of the share decreed is made over to the plaintiff. I hold accordingly.
14. From the view which has commended itself to me it follows, as it must, that the trial court was functus officio as soon as it passed the decree for pre-emption dated the 31st July, 1952.This decree was final and not preliminary and was capable of execution, and, therefore, all further proceedings which were taken by the trial court subsequent to this decree were ultra vires of that court and without jurisdiction.
It must further follow that the trial court having no jurisdiction to deliver actual physical possession in this suit, as though it were a suit for partition, could not arrogate to itself the jurisdiction which it did not possess merely because the parties consented to the procedure adopted by the court. The circumstance therefore, that learned counsel for the defendant consented to these proceedings Being taken when called upon by the trial court to show cause cannot alter the conclusion at which I have arrived above.
15. For the reasons mentioned above, I am constrained to come to the conclusion that this appeal must be allowed and all the proceedings taken by the courts below after the decree dated the 31st July, 1952, must be set aside as being without jurisdiction. Having regard to all the circumstances of the case, however I direct that the pnrties shall bear their own costs of this appeal and the appeal in the court below.
16. Leave to appeal is prayed for and allowed.