Defendant never challenged preliminary decree or amendment at proper stage - No permitted afterwards - Petition dismissed.
Before:- Mr Rongon Mukhopadhyay, J.
W.P.C. No. 5103 of 2013. D/d. 27.5.2020.
Mukhraj Dubey - Petitioner
Versus
Umeshwar Narain Singh and Ors. - Respondents
For the Petitioner:- Mr. Rajiv Ranjan Tiwary, Advocate.
For the Respondent:- Mr. T.N. Jha, Advocate.
IMPORTANT
Partition suit - Recasting of amended preliminary decree - Defendant never challenged preliminary decree or amendment at proper stage - No permitted afterwards - Petition dismissed.
Civil Procedure Code, 1908, Order 20, Rule 18 (2) - Partition suit - Quashing of order whereby learned Court below had given a direction for recasting of the amended preliminary decree - Amended preliminary decree is the foundation of preparation of final decree amended preliminary decree is not available on record Court below was justified in directing the office to recast the amended preliminary decree - Petition dismissed.
[Para 9]
Mr Rongon Mukhopadhyay, J. - Heard the parties.
2. In this writ application, the petitioner has prayed for quashing of the order dated 17.07.2013, passed by the learned Senior Civil Judge-I, Palamau in Partition Suit No. 04 of 1951, whereby and whereunder learned court below had given a direction for recasting of the amended preliminary decree.
3. A partition suit was filed by the plaintiffs (respondents herein) in Partition Suit No. 4 of 1951 for partition of Milkiyat interest of Mokrir-Dar-Mokrir lands after separating them from the unburden Milkiyat interest and if necessary to partition Dar Milkiyat interest.
4. The case of the plaintiffs was that in Mouza Kakatua, P.S. Daltonganj, there were three kinds of distinct interest such as Milkiyat, Milkiyat Mokrari and Dar Mokrari. Out of the Milkiyat interest, 10 Annas 9 Pai was unburdened while remaining 5 Annas 3 Pai was burdened with Mokrari interest; out of which, 1 Anna, 6 Pai was burdened with Dar Mokrir interest. The plaintiffs had 8 Anna 1 Pai 10 Karant Milkiyat, 2 Annas 7 Pai, 10 Karant Mokrari and 1 Anna 6 Pai as Dar Mokrir interest from before the last survey and these interests were recorded in the Khewat also. The first set of defendant held both Milkiyat and Milkiyat interest while the second set of defendant had only Milkiyat interest burdened with the said Mokrir Dar Mokrir. The third set of defendant held 1 Anna 6 Pai of the said Mokrir Dar Mokrir interest, which was burdened with the plaintiffs Dar Mokrir interest. Although these interests were recorded in last survey, yet parties had been holding the land without actual partition by metes and bounds and without specification of three interests. In 1940, some of the defendants had filed Partition Suit No. 1983/40 in the court of Munsif, Palamau for partition of Mokrir Dar Mokrir interest only leaving out Mokrir Dar Mokrir from the set and on their plea it was ordered that only inoperated Milkiyat would be partitioned and Mokrir Dar were not to be bound by the said decree. It has also been stated that some of the Mokrir Dar Mokrir lands were also partitioned in spite of the objection to that effect which caused confusion in the interest of the parties and as such the suit was filed. All the defendants had appeared and contested the suit by filing separate written statements.
5. The suit was finally decreed and a preliminary decree was prepared in the year 1954. The plaintiffs had subsequently filed applications for amending the preliminary decree and the decree was amended vide orders dated 23.11.1964 and 20.3.1971. It is the case of the petitioner that the amendment was never carried out and the amended final decree was never prepared. A final decree was prepared on 31.5.1978, which was sealed and signed on 5.8.1978 and since the same contained various anomalies the defendants had challenged the same vide Partition Appeal No. 72 /78. The said appeal was allowed and the final decree was set aside vide judgment dated 10.2.2004.
6. The respondents herein had preferred Second Appeal No. 13 /05, which was disposed of directing the trial court to prepare a final decree in terms of the amended preliminary decree. The plaintiffs-respondents herein had filed an application for amendment of the plaint since the lands mentioned in the plaint were not included in the preliminary decree and accordingly the same be inserted in the preliminary decree. The learned court below had passed an order on 15.12.04 to the effect that since the preliminary decree had already been amended as per orders dated 23.11.1964 and 20.3.1971 no further order need be passed in this regard. After the order dated 26.8.09 was passed in Second Appeal No. 13/05, the plaintiffs/respondents had filed an application praying for calling for the original record of Partition Suit No. 4/51 and then the final decree be prepared. Vide impugned order dated 17.3.2013, the learned court below has come to a conclusion that no amended preliminary decree is available on record and there is nothing on record to show that the amendment in the preliminary decree has ever been carried out and therefore the office was directed to recast the amended preliminary decree. The petitioner had filed an application for grant of certified copy of the preliminary decree as well as the amended preliminary decree but even the preliminary decree is not available and as such it has been stated that recasting of the preliminary decree does not arise.
7. Mr. R.R. Tiwary, learned counsel for the petitioner, has stated that the impugned order is illegal and liable to be quashed since there was no direction by the High Court in Second Appeal No. 13/05 for recasting of the amended preliminary decree and it was only confined to preparation of final decree. He has stated that the order of the learned court below dated 17.7.2013 amounts to preparation of fresh amended preliminary decree. It has been contended that when there is no amended preliminary decree on record, no final decree could have been prepared.
8. Mr. T.N. Jha, learned counsel appearing on behalf of the respondents, has stated that after passing of the judgement dated 31.8.54 in Partition Suit No. 4/51, a preliminary decree was prepared. He has stated that the proprietary interest in the preliminary decree vested in the State of Bihar by virtue of Bihar Land Reforms Act 1950. However, the lands, which were under khas possession of the parties were converted as raiyati under section 6 of the Act. Learned counsel further submits that as per section 4(ee) of the Act, the State of Bihar was required to be made a party in the suit. Further after passing the judgment and preliminary decree, several parties either died and several who were minors had attained majority. In such circumstances, vide orders dated 23.11.64 and 20.3.71, the amendment was allowed in the plaint and preliminary decree was prepared with addition of new schedule of land. Learned counsel further adds that some pages were lost and the process of recasting the preliminary decree is going on on the basis of amended plaint.
9. The preliminary decree was prepared in terms of the judgement passed in Partition Suit No. 4/51. The plaint as well as the preliminary decree were twice amended on 23.11.64 and 21.4.71. The preliminary decree was never challenged by the defendant/petitioner and the same had become final. On the ground of technicalities, the final decree which was prepared was challenged by the defendants in Partition Appeal No. 72/78 and the final decree was set aside as the same was not in consonance with the preliminary decree. In the appeal preferred by the plaintiffs (S.A. No. 13/05), an order was passed on 26.8.09, in which the trial court was directed to prepare final decree in terms of the amended preliminary decree. The petitioner basically is trying to reap the benefits of the amended preliminary decree being missing. When the petitioner/defendant had never challenged the preliminary decree or the amendment, he at this stage cannot be permitted to thwart attempts at preparation/recasting of amended preliminary decree. This court in S.A. No. 13/05 had clearly given a direction to prepare final decree in terms of the amended preliminary decree and since the amended preliminary decree is the foundation of preparation of final decree and since the amended preliminary decree is not available on record the learned court below was justified in directing the office to recast the amended preliminary decree. In such view of the matter, therefore, I do not find any reason to interfere in the order dated 17.7.2013 passed by the learned Senior Civil Judge-I, Palamau in Partition Suit No. 4 of 1951 and accordingly having found no merit in this writ application, the same is hereby dismissed.
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