M. Natesan, J.
1. This revision arises out of proceedings in a suit Original Suit No. 78 of 1955, Subordinate Judge's Court, Cuddalore, for partition of joint family properties, the plaintiff being the petitioner herein. On the 7th of August, 1959. a compromise decree was passed in the suit. It purported to be final decree. Under Clause (1) of the decree, besides the portion of a house marked in the plan attached to the compromise, the lands specified in schedule-A to the compromise were allotted absolutely to the plaintiff for his share and interest in the joint family properties. Under Clause (3) the marked portion of premises in the plan showing the old terraced house, site, etc., and the B Schedule lands with wells, etc., were allotted absolutely to defendants 1 to 3 for their share and interest in the joint family properties. There are provisions in the compromise regarding the crops on the lands, trees, engines, jewels, life-stock, etc. It is needless to refer to the details of these terms which are all embodied in the decree. There is a provision in the compromise that the claims of the respective parties have been settled by the compromise and that the properties to the plaintiff must be delivered within one month from the date of the compromise by defendants 1 to 3. Similarly within the same period the properties allotted to defendants 1 to 3 must be delivered to them by the plaintiff. It is further provided that if not so delivered, both the parties might treat the compromise itself as the final decree and apply for execution and obtain delivery through Court.
2. The application, the order in which has given rise to the revision was made by defendants 1 to 3 praying for the appointment of a commissioner to divide the properties according to the decree, dated 7th August, 1959, treating it as a preliminary decree and praying for a final decree. The plaintiff and defendants 4 to 9 raised objections to the maintainability of the application inter alia on the ground that the decree, dated 7th August, 1959, was itself a final decree and that there has been a final division and allotment of the properties. It was stated in the objections filed, that the compromise clearly specified the properties to be taken by the respective parties and that, in the circumstances, the application for appointment of a commissioner for division of the properties afresh and for a final decree was not maintainable. A plea was also raised that the applicants had applied to the executing Court for delivery of possession impliedly taking the stand that there has been a final allotment and a final decree and they were, therefore, preculded from claiming a fresh final decree.
3. The learned Subordinate Judge noticed that among the various items of properties set out in the schedules A and B of the compromise decree, in some of the items the parties are allotted portions by reference only to extents for example, in item (3), Nanja Survey No. 8/1, the first defendant had been given 1 acre and 58 cents out of the total extent of 3 acres and 98 cents. The compromise does not show in which portions of the survey fields the extents respectively allotted are to be found. The shares in the fields are not identified by boundaries or delineated by sketches or plans. Observing that evidently the parties had not applied their minds to this aspect of the matter when they prayed for a final decree in terms of the compromise, and in the view that in the circumstances, justice would be rendered by the appointment of a commissioner to divide the properties which require division and passing a fresh final decree in respect of those items alone, the learned Subordinate Judge ordered the application. The rights of the parties or their respective extents in the several items are not in dispute, but as it stands, if execution is necessary, the Court will not be able to execute the decree and give separate possession of their respective shares to the parties in respect of those items where there has been no clear specification of the properties allotted. The learned Subordinate Judge thought that a fresh suit would entail a lot of expense and delay for both sides and the opposing parties would not be put to any great injustice by the Court giving effect to the rights of parties as declared in the compromise. This being the basis of the decision, this Court will be hesitant to interfere in the matter on revision under Section 115, Civil Procedure Code even if there was any error.
4. But it has become necessary to examine the matter in view of certain special features of the case which learned Counsel for the petitioner puts forward. The respondents, the applicants before the lower Court are unrepresented before me, but learned Counsel for the petitioner has taken me through the entire record. Learned Counsel does not dispute the existence in the compromise decree of allotments not capable of identification by reference to the record only as referred to by the learned Subordinate Judge. Learned Counsel is, therefore, hard put to contend that with reference to these items there is a final decree. The decree may be final in other respects, while being preliminary in respect of these items. No doubt, the compromise decree proceeds as if it is a final decree but whether a decree is final or preliminary or partly preliminary and partly final has to be determined only by reference to the decree itself and not by the description given to the decree by the parties.
5. The suit in this case was for partition of the family properties and plaintiff prayed for being put in separate possession of his half share in the properties. Where preliminary and final decrees are necessary, the preliminary decree declared the rights of parties and the final decree carries into fulfilment the preliminary decree and divides the properties specifically by metes and bounds in terms of the rights declared under the preliminary decree thereby completely disposing of the suit. An executable decree is secured to the parties. The Code does not preclude the passing of more than one final decree and itself contemplates the possibility of a composite decree, that is, a decree partly preliminary and partly final. In Ramanathan Chetty v. Alagappa Chetty 59 M.L.J. 102 : (1939) Mad. 378, Gurgenven, J., observes that he can find nothing in the code repugnant to the notion that more than one preliminary decree or more than one final decree may be passed. Reference may also be made to Jashoda Dasee v. Upendrd Nath (1918) 44 I.C. 671, of the Calcutta High Court where it was found necessary to have a supplementary final decree dealing with the portion undisposed of in the earlier final decree, the suit being one for partition. No doubt, in the same suit there cannot be two final decrees for partition with reference to the same property. The jurisdiction of the Court to pass a composite decree and pass more than one final decree being there when special circumstances of the case require it, we must look to the terms of the decree itself to find out when the question arises, as in the present case, as to what is the real nature of the so-called final decree. Has there been a final adjudication of the rights of parties dividing the properties by metes and bounds and declaring the respective rights of the parties in particular properties duly identified or identifiable if execution becomes necessary. The question, we have to ask ourselves, is whether the suit has been finally disposed of or has something further to be done in the suit itself to specify the rights of parties. For this, rather than to speculate upon what the parties intended, or the Court must have intended, we look to the terms of the decree itself.
6. The fact that the decree in this case is on compromise will not, in my opinion, affect the position, unless the terms are so clear that the parties did not require or expect further relief from Court in the very proceedings. It is open to the parties by compromise to just have their rights declared and put an end to the suit. If that be the case then there can be no further proceedings in the very suit, and if any party is thwarted in securing the relief provided, his remedy where there is no decree capable of execution may be another suit. The parties may also by compromise leave certain matters to the executing Court, if it should become necessary. A decree on compromise can be either preliminary or final or composite in character. Quite often preliminary decrees get passed on compromise and the actual contest comes in at the final decree stage. The terminology used by the parties cannot conclude the matter as to the character of the decree, the effect and scope of the terms of the compromise being alone material for the said purpose. As noticed already it has been pointed out by the learned Subordinate Judge that there are some items wherein only the extents which the respective parties are to have, alone, is specified and their respective locations. But the compromise contemplates execution proceedings in Court if it should become necessary for the parties to secure possession of their respective shares. The relief of separate possession sought in the plaint has not been given up but is intended to be provided, Can it be said here, that there has been a final specification of the rights of parties in those items, capable of relief in execution ex concessi not; there is only a declaration of rights. When a division of these items in terms of the extents declared under the decree by the appointment of a commissioner is directed, it cannot, in the circumstances of this case, be said that the decree is being re-opened and a fresh final decree made. Learned Counsel for the petitioner before me does not seriously contest this position nor is it argued that the relief of localisation also may under the terms of the compromise be had in execution.
7. But learned Counsel submits that while it may be necessary to have a final decree when there has been a mere declaration of rights only under the compromise, and the parties intend a final end to their claims in the very suit, the Court will not take up the matter if in fact, the parties had subsequently outside the Court divided the properties in terms of the compromise decree and entered into possession of their respective shares. Learned Counsel submits that, in this case, the parties had divided the properties according to convenience and enjoyment and had entered into possession of their respective extents even in those items where there has been no specification of the location of the shares. Learned Counsel drew my attention to the objections that had been filed in the lower Court where there is reference to Execution Application No. 675 of 1962 filed by defendants 1 to 3 for transfer of the decree as it stood treating it as a final decree. They sought transfer on the averment that the properties had to be taken possession of through Court, that they were situate within the jurisdiction of the District Court and that the decree had, therefore, to be transferred to the District Court for execution and delivery through Court. This was opposed by the present petitioner and on nth September, 1962 the Court passed an order thereon to the following effect:
The only objection raised is that the petitioner is in possession of the properties allotted to him and that therefore there is no need for transferring the decree to the District Court. The petitioner denies this. The question whether the respondent is in possession of any of the properties allotted to the petitioner can be gone into in the E.P., that may be filed by the petitioner.
With these observations, the Court ordered the transfer of the execution proceedings to the District Court. But the matter was not further proceeded with and defendants 1 and 3 came out with the application for the passing of a final decree now the subject of consideration.
8. If, in fact, defendants 1 to 3 had entered into possession of their respective extents outside the Court, there is force in the contention of the learned Counsel that the present proceedings for the passing of a final decree cannot lie. It is indisputable that the right of a party to claim relief from Court for partition primarily depends on the fact to be proved that there are divisible joint properties. If factually the parties had got amicably divided these items and assumed separate possession on their respective titles the Court cannot be called upon to re-divide the properties. As observed in Tara Pada v. Shyama Pada : AIR1952Cal579 .
This principle may be invoked not only when a suit is filed by a party for effecting partition and before a preliminary decree is passed, but it is equally applicable at every stage of the partition suit. If all the parties to a partition suit amicably effect a partition whatever may be the form of procedure adopted leaving nothing as joint family property, is there anything further for the Court to do?
The following further observations in the case support the contentions of the learned Counsel for the petitioner:
In the present case after the Court had declared the rights of parties and passed a preliminary decree, the parties were given an opportunity to have the declaration finalised through Court. It did not disentitle the parties from amicably settling their disputes and effecting partition without the help of the Court.
From what has been described above and the clear admissions of the parties nothing now remains to be done under the preliminary decree.
On the other hand, the object of the present proceedings initiated by the plaintiff with an application for the passing of a final decree about fifteen years after partition had actually been effected, and the parties had continued to be in possession is really in form for a direction for the passing of a final decree but in substance it is to upset actual partition effected and accounts adjusted by agreement of parties. Until the agreed partition and rendering of accounts are set aside under proper legal process, if that be possible, it is not possible for the Court in the present proceedings to reopen the partition...
9. In the present case the compromise provided for the parties taking possession of their respective allotments outside Court within one month of the decree and failing therein only they had to resort to Court. The contention of the present petitioner has been actual allotment and entry into possession by the sharers of their respective plots. Assuming that the decree was partly preliminary, that is preliminary in respect of those items where the extents allotted had not been localised, still if the parties had effected the division by metes and bounds outside Court, had entered into possession peacefully, there will be no necessity for the Court to pass an order for the appointment of a commissioner to effect partition. There has been an end to the original cause of action.
10. Although, therefore, the accepted proposition is that once a preliminary decree is passed by the Court, it is open to the parties to come up subsequently with a prayer to take further steps for the passing of a final decree, there is an important exception to the general rule. On proof of changed circumstances, as in the present case, when it is found that there is no necessity or room for the application of the general rule, as the parties had already taken advantage of the directions contained in the preliminary decree, the exception to the general rule comes into play. The Court cannot and would not in equity take any further steps. Vide the same case: Tara Pada v. Shyama Pada : AIR1952Cal579 .
11. This being the position, Counsel for the petitioner is justified in his contention that the learned Subordinate Judge ought to have considered the contention that the defendants had taken possession of the respective extents in respect of which final decree is sought. On the earlier occasion when the defendants proceeded on the basis that there was an executable decree, the Court had ordered that the question of possession in terms of the allotment pleaded by the plaintiff could be gone into in the execution proceedings. That being so, it was incumbent on the Court in the present proceedings for final decree to have enquired into the allegation that the defendants had taken possession of specified extents in accordance with the preliminary decree by mutual arrangement thus making the appointment of a commissioner and the final decree not only otiose but also incompetent.
12. In the circumstances, while I am not prepared to interfere in revision with the lower Court's interpretation of the decree and the order of the learned Subordinate Judge entertaining the application for the passing of a final decree, I accept the plea of the petitioner that there must be an enquiry as to the present existence of necessity for an executable final decree. Before appointing a commissioner the Court should have enquired into the question whether any of the items of the immovable properties requiring localisation of extents allotted had been taken possession of by the respective parties in accordance with their declared rights. If possession had been so taken there could be no proceedings for fresh division. The order now passed directs the commissioner appointed to divide the items mentioned in the application and allot specific portions thereof to the applicants to the extents provided under each S. No. in the compromise decree. Before the commissioner is called upon to enter upon the division of the items the Courts will now enquire into the matter and find out whether as contended for by the plaintiff, possession had been taken of specific portions in the items according to the extents as provided under the compromise decree. There will be need for division and allotment by the commissioner and a final decree only in respect of such items if any as have not been amicably divided and possession taken by the respective parties, in terms of their rights under the compromise decree, dated 7th August, 1959.
13. The order of the Court below is, therefore, set aside and the matter remanded to the lower Court for fresh disposal in the light of the above observations. Revision allowed accordingly. No costs.