Abul Kalam and Others vs Usman Ghani and Others

Shivaji Pandey, J.—Heard learned counsel for the appellant and learned counsel for the respondent.

Since both the cases are arising out of the same order, they have been heard together and are being disposed of by this common order.

The appellant is challenging the order dated 15.12.2009 passed by the Ist Additional Judge, East Champaran, Motihari in T.A. No. 47 of 2006 by which judgment and final decree dated 1.9.1998 passed in T.S. No. 9 of 1974 has been set aside and the case has been remanded back giving a direction to the court below to issue a fresh writ to the Pleader Commissioner for preparation of the final decree in accordance with original appellate preliminary decree passed in F.A. No. 399 of 1979.

From the record facts are gathered that Maulvi Sujat Ali was the common ancestor of both sides. He had four sons and three daughters, namely, Shah Mohammad, Md. Abdul Gani, Md Mustafa. Md. Sallauddin Haidar, Bibi Queressa, Bibi Sabutan, Bibi Idan. One of the daughter is Bibi Idan and present appellant is son of Bibi Idan. According to the appellant, Bibi Idan has died after the death of Sujat Ali whereas claim has been made by the other side that Bidi Idan has pre-deceased her father, Maulvi Sujat Ali,. It also appears that plaintiff has filed Partition Suit No. 9 of 1974 which was decided in which the plaintiff was granted 1/5th share. Abdul Kalam is the son of Bibi Idan. Bibi Idan was made defendant No. 6 in the suit and later on name of Abdul Kalam was expunged, the judgment and decree was passed on 30.1.1979 which was challenged in F.A. No. 399 of 1979 which was dismissed vide judgment and decree dated 9.4.1997 and the said judgment was tested in Letter Patent Appeal and ultimately the matter went to Hon''ble Supreme Court in Special Leave Petition which was challenged unsuccessfully.

In this way the order passed by the trial court remained unaltered. One development took place as during the pendency of First Appeal the appellant, namely, Abdul Kalam, filed an application making statement that he is son of Bibi Idan was party to the suit but his name was wrongly expunged by the trial court on the request of plaintiff though he was necessary party. The said court vide order dated 23.3.1994 allowed the application and accordingly he was made one of the respondent in the First Appeal but while disposing of the appeal the court did not grant any share in the property in question.

When the matter returned to the trial court an application was filed by the appellant, namely, Abdul Kalam, who was made defendant No. 6 made a prayer that the Commissioner may be directed to carve out his share. As no one had appeared to object the petition of Abdul Kamal defendant No. 6 appellant, the trial court directed the Pleader Commissioner to carve out the share of defendant No. 6 appellant separately and submit the report.

The Commissioner submitted his report carving out his share to the extent of 1/11th and accordingly demarcated share. The trial court vide order dated 16.1.1999 Annexure 9 amended the preliminary decree and granted 1/11 the share to the present appellant. It also appears that in pursuance of the order dated 16.1.1999 necessary correction was made in the decree which is apparently clear from the amended portion marked as Annexure-10 to the supplementary affidavit filed by the appellant. The order dated 7.1.1998 was challenged by Bibi Kuraija in Civil Revision No. 958 of 1998 which was dismissed as withdrawn on 22.7.1988. Again Haji Md. Salauddin challenged the same order in Civil Revision No. 1774 of 1998 which was rejected vide order dated 26.11.1998 there the Court has recorded a finding that as the order dated 7.1.1998 was under consideration in Civil Revision No. 958 of 1998 which was dismissed as withdrawn, in such circumstance, having found no merit dismissed the Civil Revision No. 1774 of 1998. The plaintiff filed review application vide Misc. Case No. 21 of 1998 raising a grievance that the order dated 7.1.1998 was passed without giving proper notice in the matter but the court below did not find any substance and so much so on account of dismissal of the civil revision the review application was also dismissed. It also appears that Md. Haji Salaudin Haider has again filed Civil Revision No. 2363 of 1998 there the court has dismissed the civil revision application with the observation that in terms of the order dated 1.9.1998 the final decree is to be prepared and against which the appellant has forum to challenge the same accordingly the civil revision application (Annexure-D) was dismissed vide order dated 16.2.1999.

Against the final decree dated 20.2.1999 was passed by the Sub Judge IV, Motihari in which Abdul Kalam was granted share in the property that was challenged before this Court vide F.A. 180 of 1999 on account of enhancement of pecuniary jurisdiction of the court vide order dated 8.8.2005 the case was transferred to the District Judge Motihari, was numbered as T.A. No. 50 of 2006. Another appeal was filed on remand and the same was registered as T.A. No. 40 of 2006. The court below found that issue with regard to date of death of Bibi Idan was not taken into consideration by the court below as to whether Bibi Idan had died after the death of Sujat Ali or she pre-deceased her father. If Bibi Idan pre-deceased her father in such situation appellant will not be entitled to share and there will be no change of share but if the finding is recorded that she died after Sujat Ali then in that circumstances no illegality has been committed in granting share to the present appellant, namely, Abdul Kalam.

Learned counsel for the appellant has submitted that rightly or wrongly the trial court has directed to carve out the share of the parties, accordingly necessary correction was made in the decree, the other side has never challenged the order dated 16.1.1999, in such situation in view of Section 97 of the Code of Civil Procedure, the appellate court should not have entered into the issue of share of the appellant, as the issue of share can only be adjudicated at the stage of preliminary decree but at the time of final decree, only the share of the parties to be demarcated. The appellate court should not have entered into the issue of the entitlement of share of Abdul Kalam as it has become final by the order dated 16.1.1999 which was decided on the basis of the report of the Advocate Commissioner who demarcated the share of the present appellant and necessary correction was also made in the decree.

Learned counsel for the respondent has submitted that entitlement of share of the appellant is dependent on the finding to be recorded about the death of Bibi Idan as the same was never taken into consideration by any court and mere order dated 16.1.1999 will not be a basis to carve out share in favour of the present appellant. He has further submitted that the order dated 7.1.1998 was passed behind back of the defendant and when they could know, effective step was taken by challenging the order. So much so that objection filed by the respondent to the Pleader Commissioner was rejected vide order dated 1.9.1998 the same was challenged in Civil Revision No. 2363 of 1998 and this Court has given liberty to challenge the same at the appellate stage. This Court has refused to interfere in the matter having alternative forum.

It is a peculiar case, as at the time the judgment and decree no share was granted to the present appellant at no stage any share was granted by this court or by the Hon''ble Supreme Court, this Court impleaded appellant as defendant in the suit, taking clue of the order of this Court, the present appellant has filed an application with a prayer for giving a direction for carving out his share. Commissioner followed the direction, latter, on the basis of the reports his share was declared and carved out, accordingly necessary correction was made in the preliminary decree. There is no any dispute that the trial court has jurisdiction to pass more than one preliminary decree and make necessary correction in the preliminary decree itself but the question is, can there be an amendment to preliminary decree, when share of the party is dependent on adjudication and recording of finding on particular issue, there cannot be amendment to decree without the backing of proper adjudication, followed by amendment of preliminary decree in such situation an amendment in the decree which was never challenged is not a bar under Section 97 of the Code of Civil Procedure to subsequent challenge to interfere with the preliminary decree. The bar of reopening the share as provided under Section 97 of the Code of Civil Procedure would apply in a situation when decree is amended on the basis of proper adjudication of matter in issue. The share of the appellant is dependent of the fact of her mother has died before death of maternal grand father or after death of maternal grand father. During course of argument the counsel for the appellant has submitted that the order of the preliminary decree has already been executed. He has been handed over his portion of land and has already constructed a building over the same, after such a long lapse of time remanding back the matter will unsettle a settled matter and would open pendura box. It will be nothing but creating a confusion and creating unnecessary hardship to the present appellant. It is a fact that by judicial order the share of the appellant has not precipitated but the order has been passed on the back ground of the report of the Pleader Commissioner.

In view of the fact there is no adjudication with regard to death of Bibi Idan as she died prior to the death of father or subsequent to the death of his father. During course of argument it has come out that the present appellant has already made construction of the building over the land. It has come during course of argument that the appellant has been given share in terms of the report of the Pleader Commissioner in view of the direction passed by the trial court.

Appellate Court has directed for passing fresh final decree giving its own reason, which cannot be faulted and said to be bad in law. In exercise inherent jurisdiction of this Court, it is directed that the appellant, if so advised, may go for a fresh suit making a prayer for declaration of his share over the property but in the meantime construction or possession which has been handed over to the appellant will remain undisturbed but this protection as given, will be remain enforced, provided the appellant takes proper steps by filing proper suit before the competent civil court within a period of 90 days from the date of pronouncement of this order.

With the aforesaid observations and directions these appeals are disposed of.