Ramakant Soni vs Ramratan Soni and Another

Nawal Kishore Agarwal, J.—This is defendant''s First Appeal filed u/s 96 of the CPC (for short ''the C.P.C.'') directed against the judgment and decree dated 29th March, 2005 passed by the 3rd Additional District Judge (F.T.C.), Janjgir in Civil Suit No. 58-A/2004. Plaintiff/respondent No. 1-Ramratan Soni, appellant/defendant No. 1-Ramakant Soni and respondent/defendant No. 2-Smt. Vijaylakshmi Soni are brothers and sister. Ramaratan Soni i.e. plaintiff instituted a suit for partition of joint family property i.e. house and moveable property described in Schedule of the plaint claiming 1/2 share in it. According to the plaintiff, suit property is coparcenery property belonging to plaintiff and defendant No. 1 (appellant herein). His sister Smt. Vijay Lakshmi Soni, after marriage, is residing in her matrimonial home.

Appellant, by filing written statement, denied partition inter alia on the ground: plaintiff relinquished his share in the suit property in lieu of Rs. 20,000/- cash and some jewelry goods given by the appellant to the plaintiff.

The trial Court framed the following issues:

The trial Court, on a close scrutiny of the evidence led, decreed the suit holding each party has one-third share in the suit property finding inter alia appellant could not prove, plaintiff relinquished his share in the suit property after receiving Rs. 20,000/- and some jewelry shop articles from the appellant.

Shri Shree Kumar Agrawal, learned Senior Advocate with Shri Anand Gupta for the appellant would submit: the trial Court, without appreciating the evidence recorded in the case, in its proper perspective decreed the suit in appellant''s favour. In the alternative, it was contended that instead of passing preliminary decree under Order XX Rule 18 of the C.P.C. the trial Court went wrong in passing final decree and the decree impugned deserves to be suitable modified.

Shri Vishnu Koshta, learned counsel appearing on behalf of respondent No. 1, on the other hand, supported the judgment and decree and submitted: the trial Court, after appreciating the entire material and evidence placed on record, has passed the decree, which needs no interference.

I have heard learned counsel for the parties and perused the judgment and decree impugned including record of the trial Court.

Appellant-Ramakant Soni, in his statement para-9, has categorically admitted, legal heirs of Chitaram have inherited the suit property and he is in its occupation as Manager of the family-In view of above admission, it was for the appellant to prove, plaintiff relinquished his share by receiving Rs. 20,000/- and some jewelry shop articles from him, in which he utterly failed. Therefore, so far as judgment and decree impugned is concerned, the same has been passed on due appreciation of the evidence led and I do not find any infirmity in the approach of the trial Court in granting decree of partition holding each party is having equal share in the suit property.

The core question, therefore, arises for determination of this Court is whether trial Court was justified in not passing the decree in accordance with the provisions contained in the Order XX Rule 18 (2) of the C.P.C..

Provision of Order XX Rule 18 of the C.P.C. reads as under:

Order XX Rule 18 of the C.P.C.

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,-

(1) if and in so far as the decree relates to an estate assessed to the payment of revenue to the Government, the decree shall declare the rights of the several parties interested in the property, but shall direct such partition or separation to be made by the Collector, or any gazetted subordinate of the Collector, deputed by him in this behalf, in accordance with such declaration and with the provisions of Section 54;

(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 the several parties, interested in the property and giving such further directions as may be required.

A preliminary decree declares the rights or shares of parties to the partition. Once the shares have been declared and a further inquiry still remains to be done for actually partitioning the property and placing the parties in separate possession of divided property then such inquiry shall be held and pursuant to the result of further inquiry a final decree shall be passed, A preliminary decree is one which declares the rights and liabilities of the parties leaving the actual result to be worked out in further proceedings. Then, as a result of the further inquiries conducted pursuant to the preliminary decree the rights of the parties are finally determined and a decree is passed in accordance with such determination, which is, the final decree. The distinction between preliminary and final decree is this: 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.

A bare perusal of the decree impugned would reveal: it merely declares the rights and liabilities, leaving the actual result to be worked out in further proceedings, that is, for the purpose of partitioning suit property by metes and bounds between the parties.

In view of the above discussion, I am of the considered opinion, the decree impugned, in fact, has been passed under Order XX Rule 18(2) of the C.P.C. Therefore, the decree passed by the trial Court is held to be a preliminary decree. Thus, the appeal is disposed of with the direction to the trial Court to proceed in the matter effecting partition of the suit property between the parties and thereafter, pass a final decree.

No order as to costs. A decree be drawn accordingly.