Wajihunnissa and Others vs Bankebehari Singh and Others

Kulwant Saha, J.—This is an appeal against the preliminary decree in a partition suit. An objection has been taken that the appeal is incompetent inasmuch as a final decree had been made in the suit before the present appeal was preferred. The preliminary decree was made by the Subordinate Judge on 26th April 1926. An appeal was preferred against that decree before the District Judge on 1st June 1926. During the pendency of that appeal the Subordinate Judge made a final decree on 11th December 1926. The appeal was dismissed by the District Judge on 26th December 1927 and the present second appeal was preferred to this Court on 1st March 1928. It is admitted that no appeal was filed against the final decree and that decree has now become absolute. It appears that before the final decree was made the appellants applied for a stay pending the hearing of the appeal but their application was rejected and the final decree was prepared. The question is whether the existence of the final decree made on 11th December 1926 rendered the present appeal incompetent.

Section 96, Civil P.C., gives a right of appeal against every decree save where otherwise expressly provided in the body of the Code and Section 97 makes it incumbent upon the party aggrieved by a preliminary decree to prefer an appeal against that decree otherwise he shall be precluded from disputing its correctness in any appeal which he may prefer from the final decree.

The law, therefore, not only gives him a right to appeal against the preliminary decree but it imposes the restriction that if he does not prefer an appeal against that decree, ho is precluded from disputing its correctness in an appeal against the final decree. There is no provision anywhere in the Code which takes away the right of a party to appeal against the preliminary decree if a final decree has been made before the appeal is preferred.

The contention can, however, be raised that even if the preliminary decree is reversed or modified on appeal, the final decree will remain as a binding decree and it cannot be altered or set aside except by way of appeal. If the preliminary decree which is the basis upon which the final decree is made is reversed I fail to see how the final decree will retain its force. The question is not free from difficulty and there have been conflicting decisions on the point.

In Mackenzie v. Narsingh Sahai [1909] 36 Cal. 762, an appeal against the preliminary decree was preferred after the preparation of a final decree, and Mookerjee and Carnduff, JJ., held that it was not open to the appellant to challenge the correctness of the preliminary decree without preferring an appeal against the final decree. The principle which their Lordships applied was the one laid down in Madhu Sudan Sen v. Kamini Kanta Sen [1905] 32 Cal. 1023, to the effect that the right of appeal from interlocutory orders ceases with the disposal of the suit and the learned Judges were of opinion that the principle was equally applicable to cases of suits in which there was first a preliminary decree and ultimately a final decree, and their Lordships observed that if the appeal against the preliminary decree was on the merits and the preliminary judgment was set aside the position of the parties would become anomalous inasmuch as the final decree would still stand. This decision was under the Code of 1882 which contained no provision similar to Section 97 of the Code of 1908. Woodroffe and Coxe, JJ., took the same view in Sadhu Charan Dutta v. Hara Nath Dutta 20 C.W.N. 231. No reasons are given in this judgment, but reliance was placed upon Khirodamoyi Dasi v. Adhar Chandra Ghose [1912] 18 C.L.J. 321, where Brett and Sharfuddin, JJ., held that the existence of a final decree rendered an appeal against the preliminary decree incompetent. Reference in this case was made to Section 97, Civil P.C., and it was held that the provision of this section does not relieve the person who appeals from the preliminary decree from the necessity of appealing against the final decree, nor does it provide how if the preliminary decree is contrary to the terms of the final decree, the final decree is to be interfered with, if it has been allowed to stand without any appeal being preferred against it. These are weighty decisions of eminent Judges and I feel considerable hesitation in taking a view contrary to that taken in these cases. I have, however, given the matter my best consideration and I regret I cannot persuade myself to agree with the view taken by these learned Judges. In Abdul Jalil v. Ameer Chand [1912] 18 C.L.J. 223, the preliminary decree was made on 12th December 1899 and it was confirmed on appeal by the District Judge on 2nd March 1900. A second appeal was preferred to the High Court which modified the decree on 8th January 1903. In the meantime a final decree had been made on 27th March 1900. Although it does not appear from the report of the case when the second appeal to the High Court was preferred, yet it appears from the judgment of Sharfuddin, J., that the final decree was passed during the pendency of the second appeal and Sharfuddin, J., held that the final decree, which was founded upon the preliminary decree, ceased to exist since the latter decree was modified by the High Court and that

the ground work of the final decree having been sat aside the final decree became ineffectual.

In Letters Patent Appeal against the decision of Sharfuddin, J., Sir Lawrence Jakins, C.J. and Mookherjee, J. upheld the decision of Sharfuddin, J. Jenkins, C.J. observed:

The decree of the High Court of 8th January 1903, though a preliminary decree, must be regarded as decisive of the rights of the parties, notwithstanding the fact that there had been a prior final decree and in the special circumstances of this case we have so to determine.

No doubt there is the distinctive feature in this case that the final decree was prepared during the pendency of the appeal against the preliminary decree, but on principle I see no distinction why an appeal preferred before the preparation of the final decree should be held to be competent although a final decree is prepared during the pendency of the appeal and is not challenged by way of appeal against it and an appeal perferred after preparation of the final decree should be held to be incompetent.

In Kanhaiya Lall v. Tribeni Sahai [1914] 36 All. 532 a Full Bench of the Allahabad High Court held that when an appeal has been filed and is pending against the preliminary decree in a suit for partition, the passing of a final decree does not render the appeal nugatory. It is true that there also the appeal against the preliminary decree was preferred before the passing of the final decree but it appears from the decision of learned Judges in that case that they wore of opinion that even if the final decree had been passed before the presentation of the appeal against the preliminary decree the appeal would have been competent.

The question was considered by the Madras High Court in Lakshmi v. Maru Devi [1911] 37 Mad. 29 and the decisions of the Calcutta High Court in Mackenzi v. Narsingh Sahay [1909] 36 Cal. 762 and Madhu Sudan Sen v. Kamini Kanta Sen [1905] 32 Cal. 1023 and the other decisions on the point were csnsidered, and the learned Judges took the view that the appeal against the preliminary decree was competent even if preferred after the date of the final decree.

The question was considered by a Special Bench of this Court in Bibi Wahidunnissa v. Deep Narayan Prasad [1916] 1 Pat. L.J. 406. There the appeal was preferred before the preparation of the final decree, but Chamier, C.J. who was a party in the Pull Bench decision of the Allahabad High Court in Kanhaiya Lall v. Tribeni Sahai [1914] 36 All. 532, adhered to the view taken by him in that case and although the cases, which held that the appeal against the preliminary decree was incompetent if a final decree had been prepared before the presentation of the appeal, were distinguished on that ground, yet I see no reason on principle for holding that the appeal against the preliminary decree becomes incompetent because of the final decree having been passed in the suit. The final decree, if it be a bar to the appeal against the preliminary decree, ought to be a bar in either case or in no case, and as there is nothing in law to create a bar, I would hold that the present appeal was competent.

Now, to come to the facts of the case: It appears that the plaintiffs were the landlords of a holding of 1914 acres of land in Kamgarpore which was originally held by one Sheikh Nabi Bux. Sheikh Nabi Bux died leaving three sons. Farzand Ali, Juman Ali and Imam Mian. In the Record-of-Rights the names of these three sons were recorded in respect of this holding. Farzand Ali and Juman Ali died, and the plaintiff instituted a suit for rent against Imam Mian and four out of the five sons of Farzand Ali (the fifth son being then dead) and got a decree on 4th May 1921. In execution of this decree the property was sold and purchased by the plaintiffs on 26th June 1921, who obtained delivery of possession through Court in December 1922. In 1923 Wajihunnissa, the surviving widow of Farzand Ali and Mt. Bakridan the daughter of Juman Ali, brought a suit to recover their share of the holding on the ground that the decree obtained by the landlord was not binding on them as they were not impleaded in the rent suit. They obtained a decree and recovered possession of their share of the holding which was held to be 5/24ths of the entire holding.

The plaintiffs then instituted the present suit for partition of their 19/24th share of the holding. The defendant viz., the widow of Farzand Ali, and the daughter of Juman Ali, raised an objection that the suit was bad for non-joinder of three persons, viz., Mt. Rajiban, the widow of Fakhruddin, deceased son of Farzand Ali, Manzur Alam, the son of Fakhruddin and Mt. Barkatan, the daughter of Farzand Ali by his wife Wahidunissa.

The learned Subordinate Judge held that these three persons were interested in the holding but their right had been extinguished by limitation because they had been out of possession for more than two years at the instance of the landlords and the period of limitation provided for in Schedule 3, Ben. Ten. Act applied. He further held that only the four sons of Farzand Ali were recorded as tenants in the landlord''s sarishta and the suit for rent brought against the said four sons and the decree obtained therein and the sale in execution of that decree had the effect of passing the interest of these three individuals to the plaintiffs.

He further referred to the fact that in the suit instituted by the widow by Farzand Ali and the daughter of Juman Ali the three persona now put forward were made defendants and in that suit they did not set up any right. The learned Subordinate Judge accordingly overruled the objection of the defendant and made the preliminary decree. On appeal by the defendants the learned District Judge has upheld that decree. He has held that the three persons now put forward allowed themselves to be represented by the other cosharers in the holding who were recorded in the landlord''s books and the decree was, therefore, a rent decree. He further held that even if it be assumed that it was a money decree it must be held that as against these three persons the landlord got possession not under the decree but as a landlord, and Schedule 3, Ben. Ten. Act would still apply. He referred to the conflict of judicial decisions on the point whether the schedule does or does not apply because the landlord got possession in the capacity of an auction purchaser, and he was of opinion that the cases which decided that the schedule did apply ought to be followed.

In this second appeal by the defendant it is contended that the learned District Judge was wrong in holding that the decree obtained by the plaintiffs was a rent decree and not a money decree and secondly, that Schedule 3, Ben. Ten. Act, has no application to the present case in a much as the dispossession was not by the landlord as such but by the Court in execution of a writ for delivery of possession to the auction purchaser.

With regard to the first point, it is argued that it has already been held in the previous suit bi ought by the widow of Farzand Ali and the daughter of Juman Ali that the decree was a money decree and it was on this view that it was held that the shares of these two ladies did not pass at the sale is execution of the decree.

There is considerable force in this argument and it seems to me that it is not open to the plaintiffs to contend in this suit that the decree was a rent decree and not a money decree.

As regards the second point there is a clear conflict of decisions in this Court. In Jaimangalbati Misrain v. Jharu Lal Das Mozamdar [1917] 2 Pat. L.J. 567 and Gowher Ali v. Enayet Ali [1917] 2 Pat. 45 it was held that Article 3 Schedule 3, Ben. Ten. Act, applied, while in Mahadeo Bao v. Pragash Rao AIR 1927 Pat. 48 and Shyam Sunder Naik and Others Vs. Gobardhan Kamti and Others, it was held that the article did not apply to the dispossession of a tenant at the instance of the auction purchaser, although he was also the landlord. Under the circumstances it is desirable that the point should be-settled by a reference to a Pull Bench. The question I would refer to the Full. Bench is:

(1). Whether Article 3 Schedule 3, Ben. Ten. Act is applicable to the dispossession of: a raiyat in execution of a writ for delivery of possession issued by the civil Court to the auction-purchaser, who is the landlord?

And as this question arises in a second appeal the whole appeal is referred to the Pull Bench.

Das, J.

I agree.

Opinion.

Das, J.

In my opinion the question referred for our decision does not arise in the circumstances of the case. Shortly stated the facts are as follows: The plaintiffs are the landlords and they instituted a suit for recovery of rent against one Imam Mian and also against four out of five sons left by Farzand Ali. The original tenant Nabi Bux had died leaving three sons Parzand Ali, Juman Ali and Imam Mian. It appears that at the date of the rent suit Farzand Ali and Juman Ali were dead and the suit was accordingly instituted against the surviving son Imam Mian and the four out of five sons left by Farzand Ali. The plaintiffs got a decree on 4th May 1921. They took out execution and in due course purchased the holding; at the sale held in execution of the decree. They obtained possession some time in December 1922. Some time in 1923 a suit was instituted by the present defendants, the widow of Farzand Ali and a daughter of Juman Ali, for recovery of their shares in the holding purchased by the plaintiffs. They contended that the decree obtained by the plaintiffs on 4th May 1921 was not a rent decree as all the tenants were not made parties to the suit; and they insisted that the sale did not operate to convey the holding in question to the plaintiffs but that, all that passed to the plaintiff''s was the right, title and interest of the judgment-debtors. The suit succeeded and the present defendants who were the plaintiffs in that suit recovered a decree in respect of their 5/24th share. It may be mentioned that certain persons were cited as defendants in the title suit as the heirs of those who were recorded as tenants in the Record-of-Rights; but they took no part in the litigation and asked for no relief in their favour. The result was that no relief was granted to them.

The present suit was instituted by the respondents for partition of the holding as against the defendants who were the plaintiffs in the title suit. The substantial defence put forward was one of defect of parties. It was alleged that the heirs of those who were recorded in the Record-of-Rights were necessary parties to the suit and that the defect was so serious that the suit should be dismissed. The Courts below have gone into the question and have come to the conclusion that those persons have no subsisting title in the disputed holding, their claim being barred under the provisions of Article 3, Schedule 3, Ben. Ten. Act. The defendants have appealed to this Court.

The question which has been referred for our decision is:

whether Art 3, Schedule 3, Ben. Ten. Act is applicable to the dispossession of a raiyat in execution of a writ for delivery of possession issued by the civil Court to the auction purchaser who is the landlord.

As I have said, the question does not arise because I have no doubt whatever that the plea of want of necessary; parties is not open to the present defendants. It is well settled that the necessary conditions for a suit for partition are; first, that there must be unity of title; and, secondly, there must be unity of possession. It is admitted that the persons whose rights are now set up by the defendants have no possession whatever in the disputed holding and so fat-as the question of rights is concerned, it may be mentioned that the present plaintiffs do not admit that right. It would, in my opinion, lead to unnecessary complications to convert a partition suit into a suit for title. If those persons have any rights in the disputed properties they will no doubt assert their rights in a properly constituted suit; but I am clearly of opinion that their rights being denied by the present plaintiffs and it being admitted that they are not in possession of the disputed land, it cannot be urged that they are necessary parties to a suit for partition. As the whole appeal is before us, I must] hold that there is no merit whatever in the objection and that the appeal must be dismissed with costs throughout including the costs of this reference.

James, J.

I agree.

Rowland, J.

I agree.