Patna High Court
Bhola Sahu @ Bhola Sah vs Chandu Sahu on 12 August, 2024
Author: Khatim Reza
Bench: Khatim Reza
IN THE HIGH COURT OF JUDICATURE AT PATNA
SECOND APPEAL No.287 of 2017
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Bhola Sahu @ Bhola Sah son of Late Jagdish Sahu, Resident of Rosera Town,
P.S.-Rosera, District-Samastipur at present resident of Village-Kusheshwar
Asthan, P.S.-Singhia, District-Darbhanga. ... ... Appellant/s
Versus
1. Chandu Sahu son of Late Kishan Sahu, Resident of Rosera Town Dhabh
Muhalla, P.S.-Rosera, District-Samastipur.
2. Garib Nath Sahu, son of Late Kishun Sahu, Resident of Rosera Town Dhabh
Muhalla, P.S.-Rosera, District-Samastipur.
3. Mt. Gita Devi, W/o Late Kishun Sahu, Resident of Rosera Town Dhabh
Muhalla, P.S.-Rosera, District-Samastipur.
4. Ranjit Sahu, S/o Late Bhagwan Lal Sahu, Resident of Rosera Town Dhabh
Muhalla, P.S.-Rosera, District-Samastipur.
5. Santosh Sahu, son of Late Ramdeo Sahu, Resident of Rosera Town Dhabh
Muhalla, P.S.-Rosera, District-Samastipur.
6. Binod Sahu, son of Late Ramdeo Sahu, Resident of Rosera Town Dhabh
Muhalla, P.S.-Rosera, District-Samastipur.
7. Ramnath Sahu, son of Late Ramdeo Sahu, Resident of Rosera Town Dhabh
Muhalla, P.S.-Rosera, District-Samastipur.
8. Umesh Sahu, son of Late Ram Sahu, Resident of Rosera Town Dhabh
Muhalla, P.S.-Rosera, District-Samastipur.
9. Dinesh Sahu, son of Late Ram Sahu, Resident of Rosera Town Dhabh
Muhalla, P.S.-Rosera, District-Samastipur.
10. Mahesh Sahu, son of Late Ram Sahu, Resident of Rosera Town Dhabh
Muhalla, P.S.-Rosera, District-Samastipur.
11. Naresh Sahu, son of Late Ram Sahu, Resident of Rosera Town Dhabh
Muhalla, P.S.-Rosera, District-Samastipur.
12. Malti Devi, W/o Rajesh Prasad, Resident of Village-Siwan, P.O. and P.s.
Imli Chawk, District-Siwan.
13. Shanti Devi, Wife of Indra Mohan Prasad, Welfare Department, Patna,
Mohalla-Welfare Department, Patna, P.O. and P.S.-Bankipur, Punaichak,
District-Patna.
14. Asha Devi, W/o Prem Kumar, At and P.O.-Supaul, District-Madhepura, at
present Village-Kusheshwar Asthan, P.S.-Singhia, District-Darbhanga.
16. Ram Babu Sahu, Son of Late Shiv Shankar Sahu, resident of Town, P.S.-
Rosera, District-Samastipur, at present Village-Kusheshwar Asthan, P.S.-
Singhia, District-Darbhanga.
17. Munna Sahu, son of Late Ram Khelawan Sahu, resident of Town, P.S.-
Rosera, District-Samastipur, at present Village-Kusheshwar Asthan, P.S.-
Singhia, District-Darbhanga.
18. Arun Sahu, son of Late Raghunath Sahu, resident of Town, P.S.-Rosera,
District-Samastipur, at present Village-Kusheshwar Asthan, P.S.-Singhia,
Patna High Court SA No.287 of 2017 dt.12-08-2024
2/17
District-Darbhanga.
19. Shambhu Sah, son of Late Raghunath Sahu, resident of Town, P.S.-Rosera,
District-Samastipur, at present Village-Kusheshwar Asthan, P.S.-Singhia,
District-Darbhanga.
20. Sunil Sahu, son of Late Raghunath Sahu, resident of Town, P.S.-Rosera,
District-Samastipur, at present Village-Kusheshwar Asthan, P.S.-Singhia,
District-Darbhanga.
21. Gopal Sahu, son of Late Baidyanath Sahu, resident of Town, P.S.-Rosera,
District-Samastipur, at present Village-Kusheshwar Asthan, P.S.-Singhia,
District-Darbhanga.
22. Kanhaiya Sahu son of Late Baidyanath Sahu, resident of Town, P.S.-Rosera,
District-Samastipur, at present Village-Kusheshwar Asthan, P.S.-Singhia,
District-Darbhanga.
23. Bijay Sahu, son of Late Jugeshwar Sahu, resident of Town, P.S.-Rosera,
District-Samastipur, at present Village-Kusheshwar Asthan, P.S.-Singhia,
District-Darbhanga.
24. Nandlal Sahu @ Munna Sahu, son of Late Jugeshwar Sahu, resident of
Town, P.S.-Rosera, District-Samastipur, at present Village-Kusheshwar
Asthan, P.S.-Singhia, District-Darbhanga.
25. Ashok Sahu (Purbey), son of Late Jugeshwar Sahu, resident of Town, P.S.-
Rosera, District-Samastipur, at present Village-Kusheshwar Asthan, P.S.-
Singhia, District-Darbhanga.
26. Mt. Manjula Devi, W/o Late Jugeshwar Sahu, resident of Town, P.S.-Rosera,
District-Samastipur, at present Village-Kusheshwar Asthan, P.S.-Singhia,
District-Darbhanga.
27. Smt. Kaushilya Devi, D/o Late Jugeshwar Sahu, resident of Town, P.S.-
Rosera, District-Samastipur, at present Village-Kusheshwar Asthan, P.S.-
Singhia, District-Darbhanga.
28. Munia Kumari, D/o Late Jugeshwar Sahu, resident of Town, P.S.-Rosera,
District-Samastipur, at present Village-Kusheshwar Asthan, P.S.-Singhia,
District-Darbhanga.
29. Birendra Prasad, Son of Late Baijnath Prasad, resident of Khagaria, P.s.-
Khagaria, District-Munger (New District-Khagaria), at present Mohalla-
Mahabir Asthan, Baidyanath Super Market, District-Samastipur.
30. Smt. Gayatri Devi, wife of Late Baijnath Prasad, resident of Khagaria, P.s.-
Khagaria, District-Munger (New District-Khagaria), at present Mohalla-
Mahabir Asthan, Baidyanath Super Market, District-Samastipur.
31. Devendra Prasad Nayak, son of Late Musai Nayak, Mohalla-Prabhu Thakur,
Ward No.-08, Under Town Rosera, P.S.-Rosera, District-Samastipur.
32. Rameshwar Singh, son of Late Churamani Sahu, Mohalla-Dhab Under
Town-Rosera, P.S.-Rosera, District-Samastipur.
33. Bhuvneshwar Singh, son of Late Churamani Sahu, Mohalla-Dhab Under
Town-Rosera, P.S.-Rosera, District-Samastipur.
34. Jagdish Pd. Narain, son of Late Radhey Pd. Narain, Resident of Rosera
Town, P.S. Rosera, District-Samastipur.
Patna High Court SA No.287 of 2017 dt.12-08-2024
3/17
35. Smt. Rukmini Devi, Wife of Jagdish Prasad Narain, Resident of Rosera
Town, P.S. Rosera, District-Samastipur.
36. Satyadeo Pandit, son of Late Madan Pandit, Resident of Cinema Chowk,
Bhirha Road under Nagar Panchayat Rosera, P.S.-Rosera, District-
Samastipur.
37. Manoj Pandit, son of Late Madan Pandit, Resident of Cinema Chowk,
Bhirha Road under Nagar Panchayat Rosera, P.S.-Rosera, District-
Samastipur.
38. Sri Raj Kumar Bhairve S/o Late Bhola Bhairve, Dist-Samastipur.
39. Sri Ajay Kumar Panjiyar, S/o Late Rajendra Panjiyar, Dist-Samastipur.
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Anil Kumar Jha, Sr. Advocate
Mr. Sanat Kumar Mishra, Advocate
For the Respondent no. 9: Mr. Ajit Kumar, Advocate
Mr. Abhay Kumar, Advocate
For Respondent 1,2,3 : Mr. Choudhary Shyam Nandan, Advocate
For Respondent 36&37 : Mr. Uma Shankar Singh, Advocate
Mr. Shishir Kumar Shishir, Advocate
Mr. Binod Kumar Sinha, Advocate
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CORAM: HONOURABLE MR. JUSTICE KHATIM REZA
CAV JUDGMENT
Date : 12-08-2024
This Second Appeal has been filed by the defendant
no. 3/ appellant against the judgment and decree dated 18.04.2017
passed by the learned District Judge, Samastipur in Partition
Appeal No. 04 of 2017 affirming the final judgement and decree
dated 20.09.2016 passed by the learned Sub Judge III, Rosera in
Partition Suit No. 33 of 1956 whereby the learned appellate court
has held that the appeal is not maintainable in view of the
provision contained in Section 97 of the Code of Civil Procedure
and also dismissed the petition for condoning the delay as the
appeal itself is not maintainable.
Patna High Court SA No.287 of 2017 dt.12-08-2024
2. On 28.03.2023, the following substantial questions of
law were formulated while admitting the appeal:-
(i) Whether without deciding question of limitation in
filing of the appeal, appeal could be dismissed on the point of
maintainability of the appeal?
(ii) Whether filing of appeal against final decree is
maintainable when the appellant has not challenged the
preliminary decree?
(iii) Whether objection against the Pleader
Commissioner's report in a final decree proceeding by the
appellant would entitle him to file appeal against the final decree?
3. A Partition Suit bearing Partition Suit No. 33 of 1956
was filed wherein, the appellant was defendant no. 3. A
preliminary decree was passed on 23.11.1960 declaring plaintiffs 4
Aanas share and directing for preparation of final decree and in
view of the preliminary decree respective shares of the parties
were allotted as per the preliminary decree. No party to the suit
raised any grievance against the preliminary decree and hence, no
appeal was filed against preliminary decree. The learned trial court
proceeded to prepare the final decree. A Survey Knowing Pleader
Commissioner was appointed, who prepared his report. Objections
were raised against the report by the defendant nos. 1, 2 & 3.
Patna High Court SA No.287 of 2017 dt.12-08-2024
Other defendants also filed their objections in final decree stage.
Objection of the defendants-appellant was rejected.
4. The learned trial court accepted the Pleader
Commissioner report and passed the judgement and final decree.
Against the judgment and final decree, the defendant/appellant
filed Partition Appeal No. 04 of 2017 which was delayed by 46
days and was accompanied by a petition for condonation of delay.
The District Judge held that appeal is not fit to be admitted and
there is no question of condoning the delay.
5. Learned counsel for the appellant submitted that
appellant has not challenged correctness of the preliminary decree.
The learned District Judge proceeded to interpret Section 97 of the
Code of Civil Procedure wrongly and held that since the appellant
has not filed appeal against preliminary decree hence, the appeal
was not maintainable against final decree. However, in the instant
appeal, the appellant is not disputing the correctness of the
preliminary decree and the provisions does not come in the way.
6. The learned appellate court below relied upon a
decision in the case of Phoolchand and another v. Gopal Lal
reported in AIR 1967 SC 1470. The said decision is not at all
relevant for the points in issue and has wrongly been relied upon.
The learned Appellate Court further held that since the appeal
Patna High Court SA No.287 of 2017 dt.12-08-2024
itself was not maintainable and not fit to be admitted, there was no
question of condoning the delay. The appeal is not hit by Section
97 of the Code of Civil Procedure. The learned Appellate Court
below has misinterpreted the provision of Section 97 of the Code
of Civil Procedure, which is entirely foreign to the law. The
learned lower Appellate Court has relied upon the decision
reported in AIR 1967 SC 1470 (Supra) which do not lay down
any such proposition and the principle laid down therein are
otherwise. In fact, what Section 97 bars is that if no appeal is filed
against preliminary decree, the correctness of preliminary decree
cannot be challenged in an appeal against final decree and Section
97 nowhere lays down that no appeal lies against final decree if no
appeal is filed against preliminary decree which has been
misconceived and misconstrued by the learned lower appellate
court. The decision of Hon'ble Apex Court cited by the learned
lower Appellate Court seems to be a wrong citation. However, the
quoted portion from the said decision deals with an altogether
different situation which is wholly inapplicable to the facts of the
present case as there is no subsequent variation of shares between
the parties and further that decision nowhere lays down that if no
appeal is preferred against preliminary decree, no appeal can be
filed against final decree.
Patna High Court SA No.287 of 2017 dt.12-08-2024
7. Reliance has been placed in the case of T. Ravi and
Another Vs. B. Chinna Narasimha and Others and Selvi Vs.
Gopalakrishnan Nair (Dead) Through Legal Representatives
and Others reported in 2017 (7) SCC 342 and 2018 (7) SCC 319
respectively wherein, it is held that the scope of the Section is to
the effect that matters which are concluded by preliminary decree
cannot be re-agitated in an appeal against final decree. Thus, there
is no bar in Section 97 regarding maintaining a first appeal against
final decree if no appeal is preferred against preliminary decree.
Therefore, the appeal is very much maintainable.
8. In such view of the matter, if preliminary decree was
not appealed/challenged, the appeal against final decree is
maintainable.
9. On the other hand, learned counsel for the respondent
no. 9 and learned counsel for the respondent nos. 1, 2, 3, 4 and 7
have submitted that appeal filed against final decree without
challenging the preliminary decree is not maintainable. Reliance
has been placed in the case of Phoolchand and another Vs.
Gopal Lal and another (Supra) which has clearly held that in
case of present nature no appeal is maintainable against the Final
Decree. Para 7 of the aforesaid Judgement clearly says that if an
event after Preliminary Decree transpires that there is necessity
Patna High Court SA No.287 of 2017 dt.12-08-2024
to change the shares, the Court may allow the same by making the
variation in shares specified in the Preliminary Decree which
would be liable to appeal. However the same can only be done so
long as the final decree has not been passed. Similar view has been
taken in the case of Tapan Kumar Bhattacharjee Vs. Ratan Kr.
Bhattacharjee and Others reported in AIR 2004 Gauhati 27.
10. Learned counsel for the respondents further
submitted that if there is variation in shares of respective parties in
terms of Advocate Commissioner's report upon which Final
Decree is passed, the aggrieved party cannot challenge the
question of correctness of Advocate Commissioner Report in
appeal against Final Decree.
11. Mr. J.K. Verma, learned counsel for the respondent
nos. 38 & 39 supported the case of the appellant and submitted
that the issue, in question, is squarely covered by a decision of this
Court rendered in S.A. No. 548 of 1992 (Digvijay Kumar Singh
& Anr. Versus Pramila Devi & ors.) decided on 24.11.2023
wherein, the same issue was considered and answered holding that
non filing of appeal against preliminary decree does not operate as
a bar to file appeal against final decree by relying upon a judgment
in the case of Mool Chand and Others Vs. Dy. Director,
Consolidation and Others reported in 1995 (5) SCC 631. Section
Patna High Court SA No.287 of 2017 dt.12-08-2024
97 bars only re-agitation of matters covered by preliminary decree
regarding rights of parties, determination of shares etc. which
becomes final on account of non filing of appeal but it nowhere
precludes challenging the final decree by filing appeal on grounds
other than those which are covered by preliminary decree and have
come into existence on account of subsequent event of pleader
commissioner report etc. and their correctness including the other
legal infirmities in final decree proceeding leading upto passing
thereof. If such view is not taken then it would lead to a situation
where any illegality or infirmity vitiating the final decree
proceeding or passing of final decree will be immune to challenge.
12. Learned counsel for the respondent nos. 38 & 39 in
reply to 1st substantial question of law submitted that the lower
appellate court has grossly erred in not considering the limitation
petition first before deciding the maintainability of appeal matter.
Unless the delay is condoned, there is no appeal legally before the
court and as such the lower appellate court should have first
decided the limitation matter and thereafter should have taken up
the maintainability matter.
13. Since the lower appellate court has not admitted the
appeal due to above misconception of legal position regarding non
maintainability of appeal against final decree due to non filing of
Patna High Court SA No.287 of 2017 dt.12-08-2024
appeal against preliminary decree, the judgment impugned is
vitiated and dismissal of the appeal at the outset is illegal as he has
failed to consider the limitation petition first on its own merits, and
consequently failed to exercise the jurisdiction vested in it by law
which resulted in passing the impugned judgment which is
perverse and the limitation petition still remains unconsidered on
merits.
14. Learned counsel for the respondent nos. 38 & 39
further replied to the IIIrd substantial question of law and submitted
that there is no absolute bar regarding non maintainability of
appeal in absence of objection to the report of Pleader
Commissioner. This Hon'ble High Court in the decision rendered
in S.A. No. 548 of 1992 (Digvijay Kumar Singh & Anr. Versus
Pramila Devi & ors.) decided on 24.11.2023 has held that even a
litigant who does not file an objection in the learned trial court in
an appropriate case (though not as a general rule) can raise the
same at the appellate stage. There is no bar in maintaining the
certain circumstances appeal against final decree even if no
objection is raised against preliminary decree. However, in the
facts of the present case, as a matter of fact, the objections to the
report of pleader commissioner were raised by defendant nos. 1, 2,
3, 3a, 3b and 15 etc. which is even recorded in the judgment of
Patna High Court SA No.287 of 2017 dt.12-08-2024
final decree dated 20.09.2016 and thus even factually this
Substantial Question of Law may not be attracted. The appellant
is defendant no. 3, who raised the objection and other appellants
and respondent nos. 38 and 39 are claiming through defendant nos.
1, 2 & 3 and some other defendants and as such it cannot be said
that no objection was raised by these persons against report of
Pleader Commissioner.
15. Considered the submission made on behalf of the
parties and perused the impugned judgment as well as substantial
question of law having been framed by this Court in this appeal.
So far substantial question of law that failure to file appeal against
the preliminary decree would operate as a bar in an appeal filed
against final decree is concerned, the provision of Section 97 of
the Code of Civil Procedure has been examined by the Hon'ble
Supreme Court in the case of Chitturi Subbanna Vs. Kudapa
Subbanna and Others reported in (1965) 2 SCR 661 and it has
been held that "the object of the s. 97 is that questions which had
been urged by the parties and decided by the Court at the stage of
preliminary decree will not be open for re-agitation at the stage of
preparation of final decree and would be taken as finally decided
if no appeal had been preferred against preliminary decree."
Patna High Court SA No.287 of 2017 dt.12-08-2024
16. It is apparent from a bare perusal of the language of
Section 96 that it provides for an Appeal against any decree unless
it is otherwise provided for under the C.P.C., or under any other
law for the time being in force.
17. Section 97 of the CPC provides thus:-
"Where any party aggrieved by a preliminary decree
passed after the commencement of this Code does not appeal from
such decree, he shall be precluded from disputing its correctness
in any appeal which may be preferred from the final decree."
18. In a suit for partition of property or separate
possession of a share therein, Order XX Rule 18 of the CPC
comtemplates a decree has to be passed in the terms of Sub Rule 2.
The relevant extract of which is quoted as under :-
"Order XX Rule 18.
Decree in suit for partition of property or separate
possession of a share therein. - Where the Court passes a decree
for the partition of property or for the separate possession of a
share therein, then, ---
(2) if and in so far as such decree relates to any other
immovable property or to movable property, the Court may, if the
partition or separation cannot be conveniently made without
further inquiry, pass a preliminary decree declaring the rights of
Patna High Court SA No.287 of 2017 dt.12-08-2024
the several parties, interested in the property and giving such
further directions as may be required."
19. The partition suit is decided at two stages i.e. at first
stage preliminary decree is passed and at second stage, a final
decree. Passing of the preliminary decree does not decide the suit
finally. Preparation of final decree is continuation of the same suit.
20. In Shankar Balwant Lokhande versus
Chandrakant Shankar Lokhande, (1995) 3 SCC 413; while
considering the provisions of Order 20 Rule 18, Code of Civil
Procedure, and also the period prescribed for execution of a decree
under the Limitation Act, the Apex Court has observed as under: -
4. "Thus it could be seen that where the decree relates to
any immovable property and the partition or separation cannot be
conveniently made without further enquiry, then the court is
required to pass a preliminary decree declaring the rights of
several parties interested in the property. The court is also
empowered to give such further directions as may be required in
this behalf. Preliminary decree in a partition action, is a step in
the suit which continues until the final decree is passed. In a suit
for partition by coparcener or co-sharer, the court should not give
a decree only for the plaintiffs share, it should consider shares of
all the heirs after making them parties and then to pass a
Patna High Court SA No.287 of 2017 dt.12-08-2024
preliminary decree. The words "declaring the rights of several
parties interested in the property" in Sub Rule 2 would indicate
that the shares of the parties, other than the plaintiff(s), have to be
taken into account while passing a preliminary decree. Therefore,
preliminary decree for partition is only a declaration of the rights
of the parties and the shares they have in the joint family or
coparcenary property, which is the subject matter of the suit. The
final decree should specify the division by metes and bounds and it
needs to be endorsed on stamped paper."
21. A preliminary decree merely declares the rights and
shares of the parties and leaves room for some further inquiry to be
held and conducted pursuant to the directions made in the
preliminary decree which inquiry having been conducted and the
rights of the parties finally determined, a decree incorporating such
determination needs to be drawn up which is the final decree.
22. A preliminary decree first determines the rights and
interests of the parties. The suit for partition is not disposed of by
passing of the preliminary decree. It is by a final decree that the
immovable property of joint Hindu family is partitioned by metes
and bounds. After the passing of the preliminary decree, the suit
continues until the final decree is passed. If in the interregnum
period i.e. after passing of the preliminary decree and before the
Patna High Court SA No.287 of 2017 dt.12-08-2024
final decree is passed, the events and supervening circumstances
occur necessitating changes in shares, there is no impediment for
the court to amend the preliminary decree or pass another
preliminary decree re-determining the rights and interests of the
parties having regard to the changed situation.
23. In view of the preceding analysis, with regard to the
maintainability of appeal against final decree even if no appeal is
preferred against preliminary decree only restriction is that in the
appeal against final decree one cannot dispute the correctness of
preliminary decree if he has not filed appeal against preliminary
decree.
24. The appellants of the Title Appeal have not
challenged the correctness of the preliminary decree passed in
partition suit. Therefore, any aggrieved party, who has not filed
any appeal against the preliminary decree with regard to right, title
and interest or shares can challenge final decree in appeal with
regard to "Rai", "Simt" and valuation as well as the same not
being in consonance with the preliminary decree. Reference in this
regard may be made to a decision of the Madras High Court in
case of Abdul Rasheed and Ors. Vs. Abdul Jabbar and Ors.,
reported in AIR Online 2018 MAD 848 decided on 18.07.2018 in
which it has been held that even a litigant who does not file
Patna High Court SA No.287 of 2017 dt.12-08-2024
objection in trial court in an appropriate case (though not as a
general rule) can raise the same at the appellate stage. However,
the appellant as well as defendant nos. 1, 2, 3, 3a, 3b and 15 have
raised objection against pleader commissioner report.
25. So far 1st substantial question of law is concerned,
the lower appellate court erred in law. Without deciding the
limitation of the appeal, the appeal was dismissed on the point of
maintainability. The lower court should have first decide the
limitation matter and thereafter, should have taken up the
maintainability matter. The appellate court has not admitted the
appeal due to above misconception of legal possession regarding
non maintainability of the appeal against final decree due to non
filing of appeal against preliminary decree.
26. In the light of the narrative and discussion (Supra),
there can be no doubt that learned appellate court below erred and
was not justified in passing the impugned judgment in appeal
against final decree as not maintainable when the provision has not
barred the appeal against final decree where correctness of the
preliminary decree has not been challenged/questioned. Therefore,
the Partition Appeal No. 04 of 2017 is maintainable against final
decree.
Patna High Court SA No.287 of 2017 dt.12-08-2024
27. The substantial questions of law are answered in
favour of the appellants.
28. Accordingly, the judgment and decree of the lower
appellate court passed in Partition Appeal No. 04 of 2017 by the
learned District Judge, Samastipur is hereby set aside.
29. The matter is remanded to lower appellate court to
first decide the limitation matter and then proceed accordingly.
30. With the above direction, the instant Second Appeal
is allowed.
31. The learned lower Appellate Court is directed to
decide the matter at the earliest, preferably, within a period of six
months from the date of receipt/production of a copy of this order.
(Khatim Reza, J)
sankalp/-
AFR/NAFR NAFR
CAV DATE 16.05.2024
Uploading Date 14.08.2024
Transmission Date NA
