Patna High Court
Rajendra Pd Singh vs Adalat Yadav & Ors on 29 January, 2013
Author: Vijayendra Nath
Bench: V. Nath
IN THE HIGH COURT OF JUDICATURE AT PATNA
Second Appeal No.102 of 1992
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Rajendra Pd Singh, Son of Late Bindeshwari Singhj, Resident of villge- Mano
English. P.S.-Surajgarha, District-Munger-----Plaitniff(Respondent) Appellant.
Versus
1. Adalat Yadav, Son of Late Bhangi Yadav(Gope).
2. Bilto Yadav.
3. Baldeo Yadav.
Both Sons of Late Bhangi Gope.
4. Bal Kirshna Gope.
Both Sons of Late Deshri Gope, All Resident of village- Mano English, P.O.
Mano Via Kiul R.S. P.S. Surajgarha, District-Munger-Defendants-Appellants-
Respondents.
5. Ramdeo Rajak, son of Daho Rajak.
6. Belai Rajak.
7. Arjun Rajak.
Both Sons of Govind Rajak.
8. Sita Rajak.
9. Bablu Rajak, Both Sons of Belai Rajak.
10. Lukho Rajak, Son of Late Bhubneshwar Rajak.
11. Brahmdeo Rajak, Son of Dwarka Rajak.
12. Batoran Rajak, Son of Late Laduar Rajak.
All Resident of village Mano English, P.O. Mano, P.S.-Surajgarha, District-
Munger-Plaintiffs---Respondent 1st set-Respondents.
13. Lachu Rajak.
14. Raju Rajak.
15. Bhaju Rajak.
All sons of Saukhi Rajak, Residentof village and P.O. Mokamah, P.S.-
Mokamah, District- Patna.
16. Ashok Singh.
17. Subash Singh.
18. Manoj Singh, All Sons of Late Ramjee Singh.
19. Dalip Singh, Son of Late Radhey Singh.
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2 / 16
20. Bipin Singh, Son of Kesho Singh.
21. Ratan Singh, Son of Ajodhya Singh-Defendants-Respondents-Respondents.
22. Smt. Maya Devi, daughter of Late Bholi Gope.
23. Smt. Leela Devi Wife of Jogendra Yadv.
Both resident of village and P.O. Mokamah, P.S.-Mokamah, District-Patna.
24. Smt. Meena Devi, Wife of Deep Narayan Yadav.
Resident of village, P.O. , P.S. and District- Khagaria.
25. Smt. Yogni Devi Wife of Fagu Yadav, Resident of village- Bhalar P.O. and
P.S.Dharhara, District-Munger.At present all resident of village- Mano English ,
P.O. Mano, District-Munger.
26. Ram Nandan Prasad Singh, Son of Late Bindeshwari Singh, Resident of village-
Mano English, P.S.-Suraj Garha, District- Munger (Now Lakhi Sarai)
Defendants-Respondents. Respondents.
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Appearance :
For the Appellant/s : Mr. Pushkar Narayan Shahi, Sr.Adv.
Mr. Mrigendra Kumar, Adv.
Mr. Ramashish, Adv.
For the Respondent/s : Mr. Amit Prakash,Adv.
Mr. Soni Shrivastava, Adv.
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CORAM: HONOURABLE MR. JUSTICE V. NATH
ORAL JUDGMENT
Date: 29-01-2013
V.Nath, J.Heard Mr. P.N.Sahi, the learned senior counsel appearing on behalf of the appellant and Mr. Amit Prakash, the learned counsel appearing on behalf of the respondent.
2. This appeal has been filed by the plaintiff decree-holder against the judgment and decree passed in T.A.No.01/90 whereby the appellate court has set aside the final decree passed in T.S.No.01/1931.
3. Filtering the unnecessary details, the facts required to be frescoed are that Waris Ali had three daughters namely Mostt. Nawazan, Mostt. Mahbooban and Mostt Sayeedan. Most Mahbooban died first and Farasat and Kalo Mian were the descendants of Mostt Mahbooban. Thereafter Most. Sayeedan died leaving 3 Patna High Court SA No.102 of 1992 dt.29-01-2013 3 / 16 behind a daughter Most. Samidan who predeceased Most. Nawazan leaving behind her son Abdul Hamid but he also died leaving his widow Most. Makbulan who inherited his share in the properties of Waris Ali. Lastly Most. Nawazan died issueless, and Farasat and Kalo Mian were nearest to her in the line of succession. It was the case of the plaintiffs that the defendant Nos. 5 and 6 (defendant 3rd set) namely Farsat and Kalo Mian, after inheriting the share of Most. Nawazan became entitled to 2/3rd share and the defendant no.7 (defendant 4th set) namely Most. Makbulan was entitled to 1/3rd share in the property of Waris Ali described in schedule I of the plaint. It was further case of the plaintiffs that Most Nawazan had purchased the property mentioned in Schedule II of the plaint from Nazir to which the defendant 3rd set became exclusively entitled after inheritance. The plaintiffs claimed to have purchased the entire land described in Schedule II of the plaint and 8 ½ decimal of land out of land described in Schedule I of the plaint from defendant 3rd set and instituted the T.S.No. 01 of 1931 seeking the relief for recovery of possession over the Schedule II land and for partition of 8 ½ decimals of land from Schedule I land. The defendant 1st set who claimed interest in the suit properties through the defendant no.7 Most. Makbulan, and the defendant 2 nd set denied the claim of the plaintiffs and contested the suit.
4. After hearing the parties, the aforesaid suit was decreed and a preliminary decree for partition was passed on 17.08.31 in favour of the plaintiffs holding them entitled to 8 ½ decimal of land in Schedule I and 2/3 rd share in Schedule II properties as described in the plaint. The plaintiffs were also held entitled to mesne profits till the recovery of actual possession.
5. It is not in dispute that the said preliminary decree was not challenged by any of the parties to the T.S.No.01/31. The plaintiffs of that suit transferred their interest in the suit property by sale deed dated 21.06.75 in favour 4 Patna High Court SA No.102 of 1992 dt.29-01-2013 4 / 16 of the father (now deceased) of the present appellant. The final decree proceeding was initiated on 23.12.1981 and a Pleader Commissioner was appointed to make partition according to the rights declared by the decree. The pleader commissioner submitted his report which was contested by the respondents of this appeal (defendant 2nd set in T.S.No. 01 of 1931) who raised the objection to the maintainability of the final decree proceeding as well as to the report of the Pleader Commissioner. By order dated 02.05.90, the learned court below rejected the objection and confirmed the report of the Pleader Commissioner. The final decree accordingly was prepared and sealed and signed on 24.05.90.
6. The defendant 2nd set of T.S.No.01/31 filed Title Appeal No. 01/90 against the aforesaid final decree. The appellate court after hearing the parties has allowed the appeal and set aside the judgment and final decree.
7. From the impugned judgment of the appellate court below it appears that altogether four points were formulated by the Court for determination which are as follows:-
(I) Whether in view of the subsequent legislation Bihar Land Reforms Act 1950, the interest of the plaintiff vested in the State and the application for preparation of final decree on his behalf was maintainable?
(II) Whether the subsequent decision of the competent Civil Court and Revenue Courts shall operate as res judicata in the preparation of final decree?
(III) Whether there can be two final decree with respect to the same subject matter in a suit?
5 Patna High Court SA No.102 of 1992 dt.29-01-2013 5 / 16 (IV) Whether the application for preparation of final decree is covered by Article 137 of Limitation Act and the application of the Decree-holder in this case was barred under the same?
8. The first question as to whether in view of the Bihar Land Reforms Act, 1950 the interest of the plaintiffs vested in the State of Bihar, and therefore, he was not entitled for preparation of final decree, has been answered in favour of the defendant 2nd set- and it has been held that in view of the provisions of Bihar Land Reforms Act, 1950, the right, title and interest of the plaintiffs in the suit property stood vested in the State of Bihar, and therefore, no final decree could have been prepared. The appellate court below has further come to the finding that in view of the judgments passed in subsequent T.S.No. 158/32 and T.A.No.106/33, the issues arising between the parties are barred by res judicata. It has also been held that the prayer for preparation of final decree was barred by limitation in view of the provision of Article 137 of the Limitation Act. The appellate court, however, has held that there can be more than one final decree in one suit.
9. This second appeal was admitted by order dated 04.08.1992 on the following substantial questions of law :-
(i) As to whether the effect of preliminary decree passed in the year 1931 can be taken away by the order under appeal on the ground that intermediary interest of decree holder vested in the State of Bihar under Section 4 of the Land Reforms Act?
(ii) As to whether the court below is right in 6 Patna High Court SA No.102 of 1992 dt.29-01-2013 6 / 16 holding that the application for preparation of final decree was barred by limitation?
10. Mr. P.N.Shahi, the learned senior counsel appearing on behalf of the appellants in support of this appeal has submitted that there is absolutely no evidence to establish that the property subject matter of T.S.No.01/31 was the intermediary interest which would have been covered by the provisions of the Bihar Land Reforms Act, 1950. It has been urged that the cases of the parties in the suit were not that the properties purchased by the plaintiffs or the properties in possession of defendant 2nd set were intermediary interest. Elaborating his contentions, Mr. Shahi has placed the judgment of T.S.No.01/31 and also the judgments passed in subsequent T.S.No.158/32 and T.A.No.106/33 and has submitted that there is nothing in the aforesaid judgments also to indicate that any intermediary interest was ever involved in the suit and the adjudication was made in that regard. It has been next submitted that the provision of Article 137 of the Limitation Act is not attracted so far as the prayer for preparation of final decree is concerned in view of the fact that a partition suit can be finally disposed of only after the preparation of final decree, and therefore, after the filing of the suit till the passing of the final decree, there cannot be the application of Article 137 of the Limitation Act. It has also been contended that the issue of res judicata has been wrongly decided by the appellate court below.
11. Mr. Amit Prakash, the learned counsel appearing on behalf of the respondent no.4 has submitted that the appellate court below has correctly held that the title and interest of the plaintiff stood wiped out in view of the provision of Bihar Land Reforms Act, 1950. It has been contended that from the judgment of the appellate court below, it is clear that the said finding has been given on the basis of admitted facts particularly taking into notice that the plaintiffs had 7 Patna High Court SA No.102 of 1992 dt.29-01-2013 7 / 16 accepted to have intermediary interest, and therefore, in that view of the matter there can be no escape from the application of Section 4 of the Bihar Land Reforms Act, 1950. The leaned counsel has further placed the judgment of T.S.No.158/32, which was a subsequent suit filed by the plaintiffs of T.S.No.01/31, praying for ejectment of the defendant 2nd set of T.S.No.01/31 from the house on Plot No. 2873 and also for arrears of rent. It has been contended by the learned counsel that in the said suit the prayer for ejectment was rejected and in that view of the matter also the plaintiffs could not have any more rights surviving to get the same crystallized in the final decree proceeding.
12. The basic facts are not in dispute that the T.S.No. 01/31, filed by the plaintiffs Jhakho Dhobi and Mittan Dhobi, was decreed and a preliminary decree for partition was passed on 17.08.31 holding the plaintiffs to be entitled to 8 ½ decimals land in Schedule I and 2/3rd share in Schedule II of the plaint. The said preliminary decree was not challenged by any of the parties to the suit. It would be pertinent to take notice of some of the facts of the said suit including the defence set up by the defendant 2nd set therein in view of the fact that the descendants of the defendant 2nd set only have filed the objection in the final decree proceeding and have assailed the final decree in appeal in the court below.
13. As already mentioned, the T.S.No. 01/31 was filed with regard to the properties mentioned in Schedule I and Schedule II of the plaint of that suit. The total area of land in Schedule I was 23 decimal of plot no. 2870, 2871 and 2872, and the total area of land in Schedule II was 19 decimal of Plot No.2873 and 2874. The plaintiffs claimed that the defendant 3rd set had got 2/3rd share in Schddule I land which were their ancestral land belonging to Waris Ali and further the defendant 3rd set were entitled to the entire 19 decimal of Schedule II land which was the acquired property of Most. Nawazen which the defendant 3 rd 8 Patna High Court SA No.102 of 1992 dt.29-01-2013 8 / 16 set exclusively inherited. The plaintiffs prayed that they should be given possession over the entire 19 decimal of land of Schedule II and 8 ½ decimal of land from Schedule I after effecting partition.
14. The defendants contested the claim of the plaintiffs. The defendant 2 nd set contested the claim only with regard to Schedule II land by stating that they were not tenants of the plaintiffs, and they had been tenants over the land of Schedule II since long under Hamid and had built their house in its part with his permission and were cultivating the remaining land. In his deposition Bihari Gope (defendant 2nd set) had stated that he had taken Bandobasti of Schedule II land on batai from Hamid and had been paying rent to him and sharing the produce.
15. In view of the pleadings of the parties, the issue no.9, besides other issues, was framed in T.S.No. 01/31 as to "whether defendant 2 nd party are Kerayadars of the disputed house". The learned court decided this issue as follows:
"...On the point of possession also the plaintiffs' evidence is much superior with respect to the newly acquired land. On behalf of the defence it was sought to be made out that Bihari took settlement of the newly acquired land from Hamid and built his house but D.W.2 said that it was Hamid who built the house. This discrepancy shows that Bihari was not settled upon the land by Hamid. On the other hand, there is satisfactory evidence on behalf of the plaintiffs to show that both the newly acquired and ancestral lands were with bataidars and the entire produce of the newly acquired lands used to be taken by defendant 3rd party to the exclusion of Hamid. It has no doubt been said for the plaintiffs that the house upon the newly acquired land was built by defendants 3rd party and that Bihari is occupying the house on a rental of Rs. 15/- per year. Whoever built the house whether Bihari or defendants 3rd party, there can been no doubt that Bihari has 9 Patna High Court SA No.102 of 1992 dt.29-01-2013 9 / 16 been a tenant of the land on which the house is built under defendant 3rd party. Bihari's statement who is D.W.4 is unreliable and I cannot believe from his evidence that he took settlement from Hamid. In my opinion possession has remained with defendant 3rd party over the newly acquired land and not with Hamid..."
Ultimately the T.S.No.01/31 was decreed in the following terms:
" Suit be decreed modifiedly, plaintiff to recover 8 ½ decimal out of lands of Schedule I and 2/3rd share out of the lands of Schedule II, that a commissioner be appointed hereafter to partition by metes and bounds as held above..."
16. As mentioned earlier, this preliminary decree in T.S.No. 01/31 was not challenged by any of the parties and as such the findings recorded therein cannot be open to assail in a final decree proceeding initiated on the basis of this preliminary decree. The principle of law in this regard is well illumined by a four Judges Bench of the Apex Court in the case of Venkata Reddy & Ors. Vs. Pethi Reddy, AIR 1963 SC 992, where it has been laid down as follows:
"... A decision is said to be final when, so far as the Court rendering it is concerned, it is unalterable except by resort to such provisions of the Code of Civil Procedure as permits reversal, modification or amendment. Similarly, a final decision would mean a decision which would operate as res judicata between the parties if it is not sought to be modified or reversed by preferring an appeal or a revision or a review application as is permitted by the Code. A preliminary decree passed, whether it is in a mortgage suit or a partition suit, is not a tentative decree but must, in so far as the matters dealt with by it are concerned, be regarded as conclusive. No doubt, in suits which contemplate the making of two decrees a preliminary decree and a final decree- the decree which would be executable would be the final decree. But the finality of a decree or a decision does not necessarily 10 Patna High Court SA No.102 of 1992 dt.29-01-2013 10 / 16 depend upon its being executable. The legislature in its wisdom has thought that suits of certain types should be decided in stages and though the suit in such cases can be regarded as fully and completely decided only after a final decree is made the decision of the court arrived at the earlier stage also has a finality attached to it. It would be relevant to refer to Section 97 of the Code of Civil Procedure which provides that where a party aggrieved by a preliminary decree does not appeal from it, he is precluded from disputing its correctness in any appeal which may be preferred from the final decree. This provision thus clearly indicates that as to the matters covered by it, a preliminary decree is regarded as embodying the final decision of the court passing that decree..."
17. The final decree proceeding was initiated at the instance of the heirs of the plaintiffs of T.S.No. 01/1931 and later on the father of the present appellant, as purchaser from the plaintiffs, was also allowed to be impleaded as the plaintiffs. The pleader commissioner was appointed to make partition. After the submission of the report by the pleader commissioner, the objections were raised by the defendant 2nd party in the suit to the maintainability of the final decree proceeding and also the validity of the report of the pleader commissioner. After rejecting the objections, the final decree was passed. In appeal by the defendant 2nd set, however, the appellate court has set aside the final decree on the ground, besides others, that the plaintiffs‟ right, title and interest in the suit property stood wiped out under the provisions of Bihar Land Reforms Act, 1950.
18. It would be relevant here to take into notice the provisions of Section 3A and Section 4(a) of Bihar Land Reforms Act relating to the notification of vesting and its consequences.
Section 3A-Notification vesting an estate or tenure in the State-(1) The State Government may, from time to time, by 11 Patna High Court SA No.102 of 1992 dt.29-01-2013 11 / 16 notification(s), declare that the estates or tenures of a proprietor or tenure-holder, specified in the notification, have passed to and become vested in the State.
(2) x x x x x x x x
(3) x x x x x x x x
Section 4-Consequences of the vesting of an estate in the State- (1)-Notwithstanding anything contained in any other law for the time being in force or any contact and notwithstanding any non-compliance or irregular compliance of the provisions of Section 3, 3A and 3B except the provisions of Sub Section (1) of Section 3 and Sub Section (1) of Section 3A, on the publication of the notification under Sub Section (1), or Section 3 or Sub Section (1) or Sub Section (2) of Section 3A, the following consequences shall ensue and shall be deemed always to have ensued, namely:
(a) Such estate or tenure including the interests of the proprietor or tenure holder in any building or part of building comprised in such estate or tenure and used primarily as office or cutchery for the collection of rent of such estate or tenure and his interests in trees, forests, fisheries, jalkars, hats, bazaars, mela and ferries and all other sairati interests, as also his interest in all sub-soil including any rights in mines and minerals whether discovered or undiscovered, or whether being worked or not, inclusive of such rights of a lessee of mines and minerals, comprised in such estate or tenure (other than the interests of raiyats or under raiyats) shall with effect from the date of vesting, vest absolutely in the State free from all encumbrances and such proprietor or tenure holder shall cease to have any interests in such estate other than the interests expressly saved by or under the provisions of this Act.
19. From the conjoint reading of the aforesaid provisions, it is manifest that the vesting takes away the interest of a proprietor or a tenure holder in his 12 Patna High Court SA No.102 of 1992 dt.29-01-2013 12 / 16 estate or tenure. From the judgment of T.S.No.01/31, it does not appear that the suit was with respect to the intermediary interest in an estate or tenure and its partition. The plaintiffs were allowed their claim on the basis of their purchase of 8 ½ decimal of land in Schedule I and 2/3rd share in Schedule II properties as specifically mentioned in plaint. It was not the case of any of the parties to the suit that the plaintiffs had acquired only intermediary interest and not the specific properties by purchase. So far as the claim of the defendant 2 nd set in the suit was concerned, it was on the basis of Bandobasti from Hamid of Schedule II land on Batai and they accepted to have been paying rent to Hamid and dividing the produce with him as per the deposition of D.W.4 Bihari Gope (defendant 2nd set) who stated that he took the land on Bandobasti from Hamid and was cultivating it on Batai. He had also accepted to have construed a house later on over 1 ½ katha of land with permission from Hamid and continued cultivating the remaining land. It was not the case of the defendant 2nd set that Hamid was either a proprietor or a tenure holder of the Schedule II land and had settled the said land with the defendant 2nd set creating a raiyati interest. The learned court in the judgment of T.S.No. 01/31, as noticed hereinbefore, had also found on the basis of evidence that the newly acquired land and ancestral land were with bataidars and the entire produce of the newly acquired land used to be taken by defendant 3rd party. The case of the defendant 2nd party that they took settlement of Schedule II land from Hamid was squarely disbelieved by the learned court below while passing the preliminary decree and the status of the defendant 2 nd set was held to be "a tenant of the land on which the house is built under defendant 3rd party". Thus it becomes manifest that the plaintiffs never claimed intermediary interest in the suit land in T.S.No.01/31 rather they claimed their title over specific area of land on the basis of their purchase and prayed to be put in 13 Patna High Court SA No.102 of 1992 dt.29-01-2013 13 / 16 possession over the entire 19 decimal of Schedule II land, and 8 ½ decimals of land out of Schedule I land after partition by metes and bounds. From the facts of the case of the defendant 2nd set, as discussed in the judgment of T.S.No.No.01/31 while passing the preliminary decree, it does not appear that the defendant 2 nd set had also claimed to have acquired a raiyati interest from an intermediary. To the contrary, it appears that they had claimed interest on the basis of settlement as Bataidar(under-raiyat) and permissive possession over the house which claimed to have built after permission. The learned court below, while passing the preliminary decree, has also held that Bihari (defendant 2nd set) has been a tenant of the land on which the house is built under defendant 3 rd set. The maladroit effort of the defendant 2nd set, now, to take advantage of the word „tenant‟ as used in the judgment, to forward a claim of having acquired a raiyati interest is more than apparent but the same cannot be accepted as it is clearly against the tenor of the judgment of the preliminary decree and further also in absence of the pleading and evidence by the defendant 2nd set in the suit that they had taken settlement from the defendant 3rd set having only an intermediary interest.
20. Much emphasis has been laid on behalf of the contesting respondent on the judgment passed in subsequent T.S.No. 158/1932 and T.A.No. 106/33 arising therefrom. The appellate court below in the impugned judgment also has placed reliance on the same before coming to the finding that the title of the plaintiff over Schedule II land got extinguished after the vesting under the Bihar Land Reforms Act and the finding in that suit and appeal will operate as res judicata. The T.S.No. 158/32 had been filed by the plaintiffs against the defendant 2nd set (defendant 1st set in that suit) for recovery of arrears of rent and for ejectment from the house. The suit was decreed with regard to arrears of rent but was dismissed for the relief of ejectment holding that the defendant 2 nd set was in 14 Patna High Court SA No.102 of 1992 dt.29-01-2013 14 / 16 possession of the entire 6 katha of homestead land on Batai and the notice for ejectment was not valid as the matter would be governed by the Bihar Tenancy Act. In T.A.No. 106/33, filed by the plaintiffs, the decree was affirmed with further finding that the defendant 2nd set took settlement of Plot No. 2873 from Most. Nawazan and had built the house thereupon but the plaintiffs had purchased the house on Plot No. 2872 and were not entitled to a decree for ejectment. It was however also held that 6 months notice as required under the Bihar Tenancy Act was necessary for seeking the relief of ejectment. It was further held that the defendant 2nd set were liable to pay the rent as ground rent. But in these judgments also, it has nowhere been held that the plaintiffs were having only intermediary interest and the defendant 2nd set had acquired a reiayati interest by virtue of the settlement from the defendant 3rd set. In the impugned judgment, the appellate court has also made reference to the dismissal of rent fixation case and appeal thereafter by the plaintiff.
21. On the basis of these facts, the appellate court below has come to the finding that the interest of the plaintiffs in the suit land had vested in the State of Bihar. However there is no reference in the entire judgment of the necessary pleading and evidence thereupon of the crucial fact that the plaintiffs purchased only an intermediary interest from the defendant 3rd set. No doubt the mention has been made that in Khatian the land under Schedule II had been described as Bakast Gair Majarua land of Riyaz Ali but that alone would not be sufficient to hold that Riyaz Ali sold his intermediary interest to Nazir who, in turn, sold it to Most. Nawazan. Such fact should not have been decided on the basis of assumption but on the basis of pleading and cogent evidence showing acquisition of intermediary interest as distinguished from raiyati interest by Most. Nawazan over Schedule II land. The appellate court below has definitely made out a third 15 Patna High Court SA No.102 of 1992 dt.29-01-2013 15 / 16 case in this regard as the conclusion that the plaintiffs‟ interest has vested under the provision of Bihar Land Reforms Act, 1950 is not supported by the pleading and evidence in T.S.No.01/31. The appellate court has referred to the admission of the plaintiffs that they were having only an intermediary interest but it has not been pointed out where such admission had been made. During course of submission also, such admission of the plaintiffs could not be pointed out by the contesting respondents. The appellate court below has further based its finding on the fact that the plaintiffs were not in khas possession of the Schedule II land and so their title and interest got extinguished by operation of law. The term „khas possession,‟ mentioned in Section 6 of the Bihar Land Reforms Act, refers to the possession of an intermediary over agricultural or horticultural holding and the said provision cannot be attracted in absence a clear finding, based on pleading and evidence that the plaintiffs were holding only intermediary interest in schedule II and the defendant 2nd set had acquired the status of a raiyat after taking settlement from the defendant 3rd set or from Most Nawazan. Even in their pleading, the defendant 2nd set had made out a case of taking settlement of Schedule II land on Batai i.e. as under-raiyat and had also stated to have made the house in a part of the land with the permission of the land owner. The defendant 2nd set have also not brought on record the Compensation Assessment Roll, prepared under the provisions of Bihar Land Reforms Act , 1950 to support their case that the Schedule II Land had vested in the State of Bihar and the plaintiffs as intermediaries were paid compensation. It is well settled that the Bihar Land Reforms Act, 1950 never operates so as to affect a raiyat interest which never vests in the state. In view of all these facts and circumstances it is difficult to uphold the conclusion of the appellate court below that the right, title and interest of the plaintiffs in Schedule II land got extinguished after vesting under the 16 Patna High Court SA No.102 of 1992 dt.29-01-2013 16 / 16 provision of Bihar Land Reforms Act, 1950.
22. As is evincible from the decision in the case of Venkata Reddy (supra) , a preliminary decree passed in a partition suit is not a tentative decree but is conclusive with regard to the matters decided therein. It is really amazing as to how the appellate court below has come to the conclusion that the decisions in the later suit and appeal i.e. T.S.No. 158/32 and T.A.No. 106/33 would be res judicata between the parties and would affect the validity of the final decree prepared in pursuance to the earlier preliminary decree. It has been submitted on behalf of the contesting respondents that the final decree would not be executable in view of the decisions in the later suit and appeal. This argument is devoid of merit for the simple reason, as held by the Apex Court in Venkata Reddy (Supra) that the finality of a decree or decision does not necessarily depend upon its being executable.
23. The learned counsel for the contesting respondents has fairly agreed that there is no application with regard to provision of Article 137 of the Limitation Act in preparation of final decree. Therefore, the finding by the appellate court that the prayer of the plaintiffs for preparation of final decree was barred by limitation is also held to be erroneous and accordingly set aside.
24. In the result both the substantial questions of law as formulated earlier are decided in favour of the appellants. This second appeal is allowed and the impugned judgment and decree of the appellate court below is accordingly set aside. In the facts and circumstances of the case, there shall be no order as to costs.
Nitesh/- (V. Nath, J)