Ishaque Mohd. and Others vs Smt. Saini Begam

Krishn Kumar Lahoti, J.

This appeal is directed against a final decree dated 7.12.2005 passed by 5th Additional District Judge, Sagar district Sagar in Civil Suit No. 33A/2003. The defendants have also challenged preliminary judgment and preliminary decree dated 24.2.2004 passed by the same Court.

Learned counsel for the appellants submitted that the Court below erred in granting 5/8th share to the respondent/plaintiff while as per Mohammedan Law she was not entitled for the same share. The appellants also challenged the will bequeathed by Pyar Mohd. in favour of Saini Begam on the ground that the will was executed more than the share of Pyar Mohd. and the plaintiff was not entitled for such share even on the basis of will dated 3.2.1979.

Learned counsel appearing for the respondent raised a preliminary objection that the appellants cannot challenge the correctness of preliminary decree against which no appeal was preferred within the limitation and in this appeal, appellants have not filed any application seeking condonation of delay in filing appeal against preliminary judgment and decree. It is not in dispute that no application seeking condonation of delay has been filed in this appeal though the appellants have challenged the preliminary decree passed in the matter dated 24.2.2004.

Learned counsel for the respondent also submitted that u/s 97 of the C.P.C., the findings recorded by the court below while passing a preliminary decree cannot be assailed at the time of hearing of an appeal against a final decree. In support of his contention, he has placed reliance to a Single Bench judgment of the Karnataka High Court in Smt. Parvathamma vs. A. Muniyappan and others 1997 Karnataka 370 and submitted that this appeal may be dismissed.

From the perusal of the record, facts are that the respondent Smt. Saini Begam filed a suit against the appellant on 14.11.1991 claiming her share in the property. She also set up a will in her favour by her brother Pyar Mohd. The suit was contested by the appellant. The 5th Additional District Judge, Sagar by judgment dated 24.2.2004 found that the disputed property is a joint property of the plaintiff and defendants. The property was of Sheikh Muneer, father of the plaintiff. The plaintiff got 1/4th share by way of succession, 3/8th share from her brother Pyar Mohd. by way of will. The will dated 3.2.1979 bequeathed by Pyar Mohd. in her favour was found valid and on the basis of this the trial Court granted a preliminary decree in favour of the respondent. In nut shell, preliminary decree passed by the trial Court was as under :-

(i) The plaintiff is the owner of disputed house situated at Chandrashekhar ward, Sagar old No. 174, area 4500 sq. ft. to the extent of 5/8th share, the share shall exclude the area shown by green line in the map.

(ii) That the plaintiff shall be entitled for a partition of her 5/8th share by excluding the property which was shown in green color in the map.

(iii) Perpetual injunction was issued against the defendants that the defendants shall not disposes the plaintiff from the property in her possession till she gets her share after partition. The defendants shall bear their expenses and shall also bear the expenses of plaintiff.

No appeal was preferred against the preliminary decree.

Thereafter the plaintiff/respondent filed an application for final decree on 26.7.2004. In the proceedings, a notice was issued to the defendants/ appellants. All the appellants appeared before the trial Court. By order dated 27.2.2005. Court appointed Shri V.K. Kher, Advocate as Commissioner and a writ of commission was issued to him. On 2.7.2005, Shri V.K. Kher, the Commissioner submitted his report. The degree holder plaintiff filed his objection on the Commissioner report on 6.8.2005. The defendants have not filed any reply to the objection filed by the plaintiff. On 20th September, 2005, the trial Court directed both the parties to submit their proposal and alternate in respect of partition. On 20.10.2005, the defendants submitted their proposal for the partition. The Court heard the parties on 10.11.2005 and passed an order on the objection on 25.11.2005. In the order dated 25.11.2005 the Court had also gave various options to the parties in respect of division of the disputed property but it appears that none submitted any option in response to order dated 25.11.2005, therefore a final decree was passed on 7.12.2005 which is under challenge in this appeal.

To appreciate the contention of the parties, firstly legal position in respect of objections of the respondent may be looked into. Section 97 of the Civil Procedure Code, 1908 reads as under :-

Appeal from final decree where no appeal from preliminary decree - 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.

The aforesaid provision specifically provides that where any party has not filed any appeal against the preliminary decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree.

The Apex Court considered the scope of Section 97 in Venkatrao Anantdeo Joshi and Others Vs. Sau. Malatibai and Others, , wherein the Apex Court held that in a suit for partition where preliminary decree is passed, at the time of passing of final decree it is not open to the respondent to raise objection that he was a tenant of the suit premises. Section 97 of CPC specifically provides that where any party aggrieved by the preliminary decree does not appeal from the said decree, he is, precluded from disputing its correctness in any appeal which may be preferred from the final decree. The Apex Court referred an earlier judgment in Mool Chand and others Vs. Dy. Director, Consolidation and others, in this regard. The Division Bench of this Court in Devisahai and Others Vs. Sardar Govindrao Mahadik and Others, held that a preliminary decree passed in a partition suit is not a tentative decree but should be regarded as conclusive in respect of the matters dealt with in the preliminary decree. Although when the legislature provided for a preliminary decree, a final decree is to be passed and the final decree has been made executable but that would not mean that a preliminary decree is a tentative decree or an interlocutory order. The provisions of Section 97 CPC attained finality to a preliminary decree in respect of the matters decided by it. A party aggrieved by a preliminary decree does not appeal from it then he is precluded from disputing its correctness in an appeal from the final decree.

The judgment relied on by the respondent in Smt. Parvathamma (supra) also laid down the same law held that after commencement of the CPC if no appeal is filed against a preliminary decree such party shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree.

In view of the specific provision as contained in Section 97 of the Code and the law laid down by the Apex Court and this Court, there is no iota of doubt that the appellant is precluded from raising correctness of the preliminary decree in this appeal. Though appellants in this appeal has also challenged the preliminary decree but has not filed any application seeking condonation of delay in filing appeal. Apart from this, along with the memo of appeal, a certified copy of the preliminary decree is also not filed. Against the preliminary decree dated 24.2.2004, this appeal was barred by limitation on 19.1.2006 when this F.A. No. 1 12/06 was filed. In absence of application or certified copy of the decree this appeal can not be found as an appeal against preliminary decree, so no interference can be made in the preliminary decree.

Apart from this, in the final decree proceedings, appellants were noticed by the trial Court. They appeared and participated in the final decree proceedings. Now after passing of the final decree, they are stopped from raising correctness of the preliminary decree.

In view of the aforesaid, the contention of the appellant that in the preliminary decree shares were not properly determined by the trial Court or by will respondent was not entitled to claim share of Pyar Mohammad, cannot be examined and in this regard objections raised by the learned counsel for the Respondent is sustained.

So far as the second contention of the appellant that by way of will, the brother of the appellant namely Pyar Mohd. could not have bequeathed the 1/3"* share in favour of plaintiff Smt. Saini Begum, this question was considered by the trial Court in the judgment and preliminary decree dated 24.2.2004 and decided issue No. 2 and 3 against the appellants. No appeal was preferred by the appellants against the aforesaid findings or against the judgment and decree dated 24.2.2004. As the aforesaid findings have attained finality and while considering this appeal against the final judgment and decree, the findings recorded by the judgment dated 24.2.2004 cannot be reexamined.

No other point is raised in respect of final decree.

In view of the aforesaid, this appeal is found without merit and is dismissed with cost. Counsel''s fee Rs. 1,000/-.