Patna High Court
Md. Sanjer Ali And Ors. vs Bibi Hasina Khatoon And Ors. on 20 April, 2007
Equivalent citations: 2007(2)BLJR2693
Author: Ramesh Kumar Datta
Bench: Ramesh Kumar Datta
JUDGMENT Ramesh Kumar Datta, J.
Page 2695
1. The revision application is directed against the order dated 25.9.2006 passed by the Subordinate Judge- Ist, Munger in Title Suit No. 46 of 1961, by which the objection petition of the petitioners dated 18.9.2006 was disposed of directing the office to ask the Pleader Commissioner to ascertain and carve out a separate Takhta of the respective parties.
The short facts leading to the impugned order are that in the year 1961 Title Suit No. 46 of 1961 was filed. The hairs of plaintiff Sk. Md. Yusuf alias Gafoor are opposite party Nos. 6 to 20 in the present matter. In the said suit the properties were delineated in three Schedules of the plaint: Schedule-1 relating to the land and house property of Bibi Rasulan Nissa, Schedule 1(c) property of the plaint is related to Bibi Rasulan Nissa and Bibi Khodaija and Schedule-1 (b) of the plaint is the vested Zamindari interest of Bibi Rasulan Nisa.
2. The suit was filed for a declaration that the deed of gift dated 18.5.1952 executed by Bibi Rasulan Nisa, since deceased and Bibi Sarjun Nisa (defendant No. 2) the two widows of the plaintiff's deceased brother Sk. Gafoor in favour of Abdul Mottalib, defendant No. 1, whose heirs by substitution are these petitioners, is under undue influence, misrepresentation and on illegal persuasions and the same was ineffective and not acted upon and further that the aforesaid widows had no right to execute the same and it was further prayed to carve out the separate patti with regard to his share in the property mentioned in three Schedules of the plaint as well as for accounting with regard to income of the said property. In the said suit, Defendant No. 2 Bibi Sarjun Nisa filed written statement (Annexure 1) in which she stated that she and Bibi Rasulan Nisa had on 8.5.1952 executed deed of gift in favour of Defendant No. 1, further that she had been unnecessarily made party in the suit and that she adopts the written statement filed on behalf of Defendant No. 1, which should be considered as part of her written statement.
3. By judgment and decree dated 4.4.1967 it was held that the deed of gift dated 18.5.1952 (Ext.A) is genuine and valid and it was further held that defendant No. 1 abundantly proved that the deed of gift was acted upon and the suit was decreed on contest in part. It was held that the plaintiff had got cause of action to bring the instant suit with regard to the properties mentioned in Schedule-1(a) of the plaint, except the house appertaining to item Nos. 2 and 5 under the heading "Sarahat Makanat Izmal" so far as the share of Mostt. Bibi Khodaija in them is concerned and not in respect of the remaining disputed properties and, as such, he will get his share in the same partitioned. Accordingly, it was directed that the Pleader Commissioner would be appointed in future proceeding for carying out a separate patti with regard to the share of the plaintiff in respect of the properties in Schedule-I(a) except the house pertaining to Item Nos. 2 and 5 under the heading 'Sarahat Makanat Page 2696 Izmal' and while doing so he would try to allot the properties disposed of by defendant No. 1 in the share of defendant No. 1.
4. Against the aforesaid judgment and decree dated 4.4.1967, the plaintiff filed First Appeal No. 298 of 1967, which was dismissed for default and for its restoration M.J.C. No. 72 of 1974 was filed. The defendant No. 1 also filed First Appeal No. 265 of 1967, in which ultimately, the compromise petition (Annexure 2) entered into between defendant No. 1 appellant and plaintiff-respondent No. 1, was filed. In paragraph No. 7 of the said compromise petition the terms and conditions of the compromise were clearly stipulated and with respect to specific properties mentioned in Schedules 1 to 3 of the compromise petition it was stated that they would be owned and possessed by Respondent No. 1 (Sk. Md. Yusuf) who would have full right, title, interest and exclusive possession therein and possession of the same had been delivered to him and with respect to the rest of the suit properties, except those, which had been alienated by the original defendant No. 1, Sk. Abdul Motalib to defendant 3rd party in the suit, shall belong to and be owned and possessed by the appellants, who would have full right, title, interest and possession therein. An objection to the said compromise petition was filed by the heirs of defendant No. 2, who were Respondent Nos. 3(a) and 3 (b) having been substituted in place or Respondent No. 3, Most. Bibi Sarjun Nisa as her heirs since she had died during the pendency of the appeal in this Court. By orders dated 2.2.1977 and 3.2.1977 passed in First Appeal No. 265 of 1967, this Court considered in detail the objections raised by the said heirs of deceased Defendant No. 2 taking note of the fact that the defendant No. 2 in her written statement said that she along with Bibi Rasulan Nissa had, in fact, executed the deed of gift and she had unnecessarily been made a party to the suit and now the objection is being made by the heirs of Respondent No. 3 Bibi Sarjun Nisa in their affidavit dated 11/1/1967. After hearing the parties, this Court came to the conclusion that on the facts and circumstances of the case as recorded in the said order, the objection petition filed on behalf of 'Respondent Nos. 3(a) and 3(b) is frivolous and the objection petition was, therefore, dismissed by order dated 2.2.1977.
5. Thereafter this Court, taking into consideration the fact that the suit had been partly decreed in favour of plaintiff-respondent No. 1 and he had also filed First Appeal No. 298/67 and, on its dismissal for default, the restoration application (M.J.C. No. 72 of 1974) was filed for restoring F.A. No. 298/67 to its original file, called for the records of F.A. No. 298/67 and M.J.C. No. 72 of 1974 in order to record the compromise in the First Appeal No. 265/67 along with them. The order for compromise was passed on the next day, on 3.2.1977, in which the court took note of the fact that the parties had entered into a compromise and in terms of paragraph No. 7 of the compromise petition dated 10.4.1974, which was filed on 13.5.1974 on behalf of the appellants and Respondent No. 1, the same are for the benefits of the minors also who were parties and, therefore, permission for the compromise was recorded and the compromise was, therefore, recorded in terms of the compromise referred to in paragraph 7 of the petition, which was directed to form part of the decree. The appeal was, accordingly, disposed of in terms of the said compromise.
6. Nearly two decades later an application was filed on 16.9.2006 by the defendants 2nd set, the heirs of earlier defendant No. 2, Bibi Sarjun Nisa, before the Subordinate Judge-Ist, Munger in T.S. No. 46 of 1961 with a prayer that in terms of the preliminary decree passed in Title Suit the Pleader Commissioner should be Page 2697 appointed and separate Takhta/Patti for their share should be prepared and he should be directed for carying out a separate Patti of their share according to the preliminary decree. The said petition which was evidently under Order 26 Rule 13 of the Code of Civil Procedure, was objected to by filing an objection petition by the defendant Ist set, the present petitioners, stating that the petition for preparation of final decree filed by the defendant second party is not maintainable in view of the fact that the decree passed by the trial court has merged in the decree passed by this Court on the basis of compromise petition filed in F.A. No. 265 of 1967, by which the sole plaintiff had been allotted the properties detailed in Schedule 1 to 3 of the compromise petition filed in the said appeal whereas the defendant second party, who were substituted in place of the deceased Respondent No. 2, Most. Bibi Sarjun Nisa were not allotted any share in the suit property.
7. In the said circumstances, it was prayed that there was no occasion for appointment of the Pleader Commissioner for carying out the Patti of the defendant second party, since nothing further remained to be carried out after the order passed by this Court accepting the compromise in the First Appeal. However, the court below over-ruled the said objection and directed issuance of writ for appointment of the Pleader Commissioner stating that in terms of the preliminary decree prepared by this Court, if the Pleader Commissioner is appointed for preparing the shares of the parties then no loss will be caused to any of the parties since the parties will get their shares, which have been allotted by the preliminary decree of this Court.
8. Learned Counsel for the petitioners submits that it is evident that the orders dated 2.2.1977 and 3.2.1977 of this Court disposing of the first appeal in terms of the compromise referred to in paragraph No. 7 of the compromise petition are final decree, as nothing further remains to be adjudicated. It is submitted that the purpose of preparation of final decree is the allotment of the specific properties to the parties to the partition suit in terms of the shares declared by the preliminary decree. However, here the compromise petition was filed in which the specific properties were allotted to the parties and the said compromise was accepted by the court, then the orders of the court disposing of the suit/appeal in terms of the said compromise petition attained the state of a final decree.
9. It is further submitted by learned Counsel for the petitioners that since by order dated 2.2.1977 passed in F.A. No. 265/67 this Court had clearly rejected the objections filed on behalf of defendants second set -Respondent Nos. 3(a) and 3(b) as frivolous, nothing has been allotted to them by the decree of the court and defendant No. 2 herself has clearly stated in her statement that she had gifted her property in favour of Defendant No. 1, therefore, they had no locus standi to file any application under Order 25 Rule 13 of the Code of Civil Procedure.
10. In support of the aforesaid proposition, learned Counsel for the petitioners seeks to rely upon Section 2(2) of the Code of Civil Procedure in which it is provided that 'decree' means the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the right of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final decree, learned Counsel, particularly emphasizes the explanation given in the said Sub-section (2) of Section 2, which clarifies that a decree is preliminary when further proceeding have to be taken before the suit can be completely disposed of; it is final when such adjudication completely disposes of the suit.
Page 2698
11. On the basis of the said proposition, learned Counsel submits that in view of the terms and conditions in paragraph No. 7 of the compromise petition with regard to the assignment of the shares in the disputed property to the plaintiffs and the remainder to defendant No. 1 the suit had completely been disposed of and by the order of this Court disposing of the appeal in terms of the compromise nothing more remained to be adjudicated upon and, thus, the order of this Court has to be construed as a final decree and not a preliminary decree. In that view of the matter, it is submitted that there could be no further steps taken for preparation of a final decree.
12. Learned Counsel for the petitioners also relies upon, the provisions of Order 20 Rule 18 of the Code of Civil Procedure in which it is provided that where the court passes a decree for the partition of the property or for the separate possession of a share therein, then if and in so far as such decree relates to any 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.
13. Relying on the said provision it is submitted by learned Counsel for the petitioners that the question of preparation of a preliminary decree can only arise where the partition or separation cannot be conveniently made without further enquiry and only in those circumstances, the court declares the right of the parties and then gives further directions and thereafter, the question arises for preparation of final decree allotting the different shares to the different parties as per their rights declared according to the preliminary decree. In the present matter, it is submitted that since the entire rights of the parties concerned in the litigation had been clearly delineated in paragraph No. 7 of the compromise petition, the same having been accepted by this Court vide its order dated 3.2.1977, there would be no occasion for taking any further steps for preparation of a final decree and the said decree itself would have to be considered as a final decree and not a preliminary decree.
14. In support of the aforesaid proposition, learned Counsel for the petitioners relies upon a Division Bench decision of this Court in the case of Raghubir Sahu v. Ajodhya Sahu and Ors. A.I.R. 1945 Patna 482, in which it has been held as follows:
In the present case, the decree was passed on compromise. It was admitted that by the compromise, the properties allotted to the share of each party were clearly specified and schedules of properties allotted to each were appended to the compromise petition. Therefore, no further enquiry was at all necessary. In such circumstances, the decree did not merely declare the rights of the several parties interested in the properties but also allotted the properties according to the respective shares of each party. Therefore, it was not a preliminary decree but it was the final decree in the suit. A compromise decree in a partition suit allotting specific parcels to the parties is a final order for effecting partition.
15. The aforesaid decision has been followed by another Division Bench of this Court in the case of Lal Muni (Smt.) v. Shiv Shankar Tiwary , in paragraph No. 7 of which it has been laid down as follows:
7. Now remains for consideration a very small question as to whether it was necessary for the decree-holders to apply for a final decree or whether the Page 2699 compromise decree which finally allotted specific properties to the parties was executable by itself. It was not disputed before us that in a suit more than one final decrees can be prepared. Having examined the terms of the agreement, I find that allotment has been made to the parties in a clear manner of the various assets except only those which were agreed to be left as joint. In such a situation it is clear that no final decree need be drawn up. The preliminary decree as such simply declares the interest of the parties and until, a final decree is drawn up, it is not possible to fix up the interest of the parties concerned in any specific property. It is, therefore, clear that until that stage comes the preliminary decree cannot be executed. The position stands entirely different where the parties make final allotments by a compromise. In such a situation nothing remains pending to be dealt with in the final decree. The compromise decree takes the position of consolidated preliminary and final decree. In such a case the view that final decree is not required to be drawn up finds support from the decision in Raghubir Sahu v. Ajodhya Sahu AIR 1945 Pat 482.
16. Learned Counsel for the petitioners also relies upon a decision of the Supreme Court in the case of Rachakonda Venkat Rao and Ors. v. R. Satya Bai (D) by L.R. and Anr. in which on nearly identical facts, the Apex Court has held as follows:
22. The fact that the compromise in 1978 was a final partition between the parties finds support from absence of any averments in the compromise application regarding reservation of right to the parties to seek partition with respect to properties kept joint in future. The decree as a matter of fact leaves nothing for future. As noticed earlier in a preliminary decree normally the court declares the shares of the parties and specifies the properties to be partitioned in the event of there being a dispute about the properties to be partitioned. After declaring the shares of the parties and the properties to be partitioned, the Court appoints a Commissioner to suggest mode of partition in terms of Order XXI, Rule 13, C.P.C. A perusal of Order XXVI Rule 13 C.P.C. shows that it comes into operation after a preliminary decree for partition has been passed. In the present case, there was no preliminary decree for partition and, therefore, Rule 13 of Order XXVI does not come into operation.
17. In view of the aforesaid decisions of two Division Benches of this Court as also of the Supreme Court, learned Counsel for the petitioners submits that there was no occasion for entertaining any such petition for preparation of final decree for appointment of Pleader Commissioner for carying out separate Takhta filed by the heirs of defendant No. 2 and the court below has, in fact, exceeded its jurisdiction by entertaining the same.
18. Learned Counsel for opposite party Nos. 28 and 29 have made a submission supporting and reiterating the stand taken by the petitioners. The said opposite parties apart from being the descendants of deceased defendant No. 1 in the suit are purchasers of part of the suit properties on their behalf also. It has been submitted that Order 26 Rule 13 of the Code only comes into the picture between a preliminary decree and a final decree. Since in the present matter, the order of this Court passed disposing of the appeal in terms of the compromise itself is in the nature of final decree hence, there would be no question of application under Order 26 Rule 13 of Page 2700 the Code being entertained by the court below for preparation of final decree. For the said reasons, it is submitted that the court below has wrongly assumed the jurisdiction, which was not available to it and the impugned order passed thereupon is thus, without jurisdiction.
19. It is submitted that the mere continuance of the so-called proceedings for preparation of final decree would only create a haphazard situation and unnecessary duplication and multiplicity of litigations and the same will also lead to harassment of the contesting parties to the suit, none of whom has come forward for the preparation of the final decree as stipulated in paragraph 7 of the compromise petition.
20. It is further submitted on behalf of opposite party No. 28 that as a matter of fact after the death of defendant No. 2 there was no need for substituting her heirs and legal representatives since she had filed her written statement clearly stating that she along with the other widow had executed a deed of gift in the year 1952 in favour of Defendant No. 1 and that she had no further interest in the matter rather she had been wrongly made a party to the suit. Thus, by the substitution of her heirs unnecessary problem has been created by the plaintiff and now it needs to be given a final burial.
21. Learned Counsel for opposite party Nos. 1 to 5, who are the main contesting parties since it is their application which had been allowed by the court below, has tried to support the impugned order. However, no concrete argument has come forward in support of the case. It is merely submitted that there is no illegality or irregularity in the order. It is further submitted that the only thing wrong, which can be found in the impugned order dated 25.9.2006, is that instead of preliminary decree used in the last but one paragraph of the impugned order, the final decree should have been used and at best this Court can direct the court below to correct the same. This court is unable to understand on what ground the said order can be supported. In fact, if the words 'preliminary decree' are substituted by the words 'final decree' in the last, but one paragraph of the impugned order then also there would be no occasion for issuance of a writ for appointment of the Pleader Commissioner to give his report for allotment of shares of respective parties.
22. In that view of the matter from the Division Bench decisions of this Court going back to the year 1945 as also the Supreme Court decision cited by learned Counsel for the petitioners, it is evident that when a compromise petition records the disposal of the entire properties in the suit among the parties to the suit and the said compromise is accepted by the court then the order of the court amounts to a final decree.
23. In the said circumstances, there can be no occasion for application of Order 26 Rule 13 of the Code as the whole process to ascertain and carve out a separate Takhta/Patti of the respective parties has already arrived at a definite conclusion. In the present matter, there is no preliminary decree on the basis of which the Pleader Commissioner can proceed in the matter and submit a report for carying out separate Takhta of the parties.
24. Another argument that has been advanced on behalf of the opposite parties is that earlier also similar application had been filed in the matter of preparation of final decree and the same had been rejected by the court below and thus, the said order not having been challenged before any higher forum it will operate as res judicata Page 2701 and the petitioners cannot be permitted to challenge the impugned order dated 25.9.2006. The said contention on behalf of opposite party Nos. 1 to 5 has only to be noticed to be rejected.
25. It is evident that the order dated 3.2.1977 of this Court passed in First Appeal No. 298/67 has finally disposed of the entire matter between the parties and it was the final decree. In that view of the matter, no court could assume the jurisdiction to take steps for preparation of final decree. Any such order of the court below in this regard would completely be non est in the eye of law and wholly without jurisdiction. The settled law is that any such order, which is wholly without jurisdiction and non est in the eye of law will not operate as res judicata in order to confer a jurisdiction upon a court which it does not possess. In this regard, reference may be made to the decision of the Supreme Court cited by the learned Counsel for the petitioners in the case of Mathura Prasad Sarjoo Jaiswal v. Dossibai N. Jeejeebhoy and Ors. wherein the Apex court held in paragraph No. 9 as follows:
The object of the doctrine of res judicata is not to fasten upon parties special principles of law as applicable to them inter se, but to ascertain their rights and the facts upon which these rights directly and substantially depend; and to prevent this ascertainment from becoming nugatory by precluding the parties from reopening or recontesting that which has been finally decided." A question relating to the jurisdiction of a Court cannot be deemed to have been finally determined by an erroneous decision of the Court. If by an erroneous interpretation or the statute the Court holds that it has no jurisdiction, the question would not, in our judgment, operate as res judicata. Similarly by an erroneous decision if the Court assumes jurisdiction which it does not possess under the statute the question cannot operate as res judicata between the same parties, whether the cause of action in the subsequent litigation is the same or otherwise.
26. To similar effect is the law laid down in the case of Union of India v. Pramod Gupta (D) by L.Rs. and Ors. in paragraph No. 28 of which it has been held as follows:
The principle of res judicata would apply only when the lis was inter-parties and had attained finality in respect of the issues involved. The said principle will, however, have no application inter alia in a case where the judgment and/or order had been passed by a court having no jurisdiction therefor and/or in a case involving pure question of law. It will also have no application in a case where the judgment is not a speaking one.
27. In view of the provisions of law in this regard there can be hardly any doubt that earlier dismissal of similar petition by the court below cannot operate as res judicata and it is open to this Court to set aside any such wrong assumption of jurisdiction by the court below, which is not warranted by the provisions of law.
28. In the result, this revision application is allowed. The impugned order dated 25.9.2006 passed in T.S. No. 46 of 1961 (F) D. by Subordinate Judge-Ist, Munger is set aside with costs of Rs. 3000/- to be paid by opposite party Nos. 1 to 5 to the petitioners.