Mahesh Chand S/O Late Mangi Lal vs Om Prakash S/O Late Mangi Lal
2022 Latest Caselaw 6347 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

              S.B. Civil First Appeal No. 1037/2019

Mahesh Chand S/o Late Mangi Lal
                                                                  ----Appellant
                                   Versus
Om Prakash S/o Late Mangi Lal
                                                                ----Respondent

For Appellant(s)         :     Mr. Rahul Sharma
For Respondent(s)        :     Mr. M.C. Gupta for
                               Mr. G.P. Sharma
                               Ms. Rani Bhandari for
                               Mr. Ashok Kumar Pareek



              HON'BLE MR. JUSTICE SUDESH BANSAL

                                    Order

23/09/2022

     Heard on the stay application.

It appears from record that on the civil suit for partition filed

by respondent No.1-plaintiff, preliminary decree for partition has

been passed vide impugned judgment dated 19.8.2019. Except

appellant-defendant No.2, no other party has challenged the

preliminary decree for partition and defendant No.2 has

challenged the impugned decree only to the extent of issue No.4,

dismissing his counter claim for claiming 1/4th share in the rent of

rented shops. Appellant has also alleged that the property referred

in para 9 of the written statement is not liable to be partitioned.

Perusal of the impugned judgment dated 19.8.2019 clearly

reveals that as far as property referred in para 9 of the plaint and

written statement is concerned, the trial Court has observed that

through Ex.2, this property was purchased by all four brothers

jointly and same has been ordered to be divided in equal 1/4th-

(2 of 2) [CFA-1037/2019]

1/4th share, without adjudicating rights of parties in relation to

temple. As far as issue No.4 is concerned, the trial Court has

observed that defendant No.2 has not provided any detail about

the rent received by defendants No.1 to 3.

This Court is of the opinion that the preliminary decree for

partition has not been challenged by any of parties and challenge

made by appellant No.2 is only in relation to the same amount of

arrears of rent and rights of temple properties which have no

nexus with the preparation of final decree.

The Supreme Court in case of Kattukandi Edathil

Krishnan Vs. Kattukandi Edathil Valsan [AIR 2022 SC 2841]

has observed that proceedings of the final decree are in

continuation to the suit for partition, after passing preliminary

decree.

Therefore, let the trial Court proceed to preparation of the

final decree, pursuant to the judgment and preliminary decree

dated 19.8.2019, however, the final decree shall remain subject to

outcome of this first appeal.

Accordingly, the stay application stands disposed of.

Record of the trial Court be sent back with copy of this order

to the trial Court to proceed with the preparation of final decree.

(SUDESH BANSAL),J

NITIN /30

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