Orissa High Court
Ash Mohammed @ Md. Yasin @ Yessin ... vs Md. Ilyas on 26 June, 2018
THE HIGH COURT OF ORISSA, CUTTACK
R.S.A. NO.55 OF 2018 AND MISC. CASA NO. 238 OF 2018
An Appeal under Section 100 C.P.C. from the judgment dated
11.01.2018 passed by Sri Sudipta Acharya, District Judge, Bargarh in
R.F.A. No. 36 of 2016 confirming the judgment dated 25.7.2016 passed
by Shri Pravakar Ganthia, Civil Judge (Junior Division), Bargarh in Civil
Suit No.83 of 2010.
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Ash Mohammed @ Md. Yasin @ Yessin Mohammad @ Yessi Mohammed ..: Appellant
-Versus-
Md. Ilyas :: Respondent
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For Appellants - M/s. Sk. Zafrulla and J. Kamila
For Respondents - M/s. Dinesh Ku. Mohanty,
Deepak Ku. Rath and A.P. Mishra
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PRESENT:
THE HONOURABLE DR. JUSTICE D.P. CHOUDHURY
---------------------------------------------------------------------------------------------------- Date of hearing- 20.04.2018 : Date of judgment- 26.06.2018
---------------------------------------------------------------------------------------------------- DR. D.P. CHOUDHURY, J. The captioned appeal assails the judgment dated 11.01.2018 passed by the learned District Judge, Bargarh in R.F.A. No.36 of 2016 confirming the judgment dated 25.7.2016 passed by the learned Civil Judge (Junior Division), Bargarh while making preliminary decree passed in Civil Suit No.83 of 2010 final and acceptance of the report of the Civil Court Commission. The parties referred to before the learned trial court are also referred in this appeal.
2. The infiltrated factual matrix leading to the case of the present 2 appellant as plaintiff is that the plaintiff has filed Civil Suit No.83 of 2010 for partition of suit properties between the plaintiff and the defendant with further prayer to declare the right of preemption. It is the further case of the plaintiff that the plaintiff and defendant are two brothers governed by Mohammedan Law. After death of Md. Ibrahim, who was the common ancestor, the plaintiff, defendant and their mother Quresa Bibi succeeded to the suit property which consists of residential house. During life time of mother, she divided the suit property into two equal parts allotting each of same to plaintiff and defendant respectively. Accordingly, she plaintiff filed the affidavit sworn in by mother Quresa Bibi on 31.07.2007. After death of mother Quresa Bibi on 29.01.2009 plaintiff requested the defendant for partition to which no result was yielded. Then the suit was instituted. The defendant did not prefer to file written statement, but contested the suit on merit.
3. The plaintiff examined P.W.1 and proved some documents. The defendant neither adduced oral evidence nor documentary evidence, but contested the suit. After hearing the parties, preliminary decree was passed declaring one and half share to each of the party over the suit schedule property. Also the decree for preemption was passed to the effect that none of the parties can transfer their respective share to any outsider or third party.
4. After passing the preliminary decree defendant filed Final Decree Proceeding dated 15.9.2015. On 21.04.2016 the learned court below made preliminary decree final and directed for appointment of Civil Court Commissioner to carve out share of each party. It is alleged inter alia 3 that the Commissioner without following proper procedure prepared the report which was accepted by the learned trial court and the report was made part of the final decree. Against the acceptance of report C.M.P. No.1218 of 2016 was filed before this Court and it was disposed of with liberty to file appeal. Against such acceptance of report in the final decree proceeding which is treated as decree, R.F.A. No.36 of 2016 was filed before the learned District Judge, Bargarh who dismissed the appeal by confirming the order dated 25.07.2016 passed by learned trial court.
5. Basing on the submissions of learned counsel for the appellant, the following substantial questions of law are framed:-
(i) Whether the courts below are correct in accepting the report of the Civil Court Commissioner which ignores the division of the residential house of the parties in the preliminary decree?
(ii) Whether the learned courts below erred in law by holding that plaintiff cannot claim any share over the ancestral residential house which stands over the portion of the suit land allotted in favour of the defendant?
SUBMISSIONS:
6. Learned counsel for the appellant submitted that the order of the learned court below is illegal, erroneous and opposed to the law. The learned courts below have erred in law to appreciate the very purport of the preliminary decree and there by committed error in holding that the report of the Civil Court Commissioner is in consonance with the preliminary decree. According to him, there is a house on the suit plot and it has not been partitioned equally by the Civil Court Commissioner by allotting one and half 4 of the house to respective parties. When the Civil Court Commissioner found joint possession of the parties over the house, the residential house should have been partitioned by allotting one and half share each to the respective parties over t he same on the line of the preliminary decree.
7. Learned counsel for the appellant further submitted that the final decree proceeding should be passed according to preliminary decree unless there is any adjudication of the rights of the parties afresh between the preliminary decree and final decree. The Commissioner has not noted the existence of the ancestral house on the ground that the house being a dilapidated building does not meet the test. Therefore, the impugned judgment and decree passed by the learned courts below are erroneous, illegal and opposed to law requiring indulgence of the Court to set aside the same.
8. Learned counsel for the respondent submitted that the preliminary decree has been passed to partition the suit property into two equal shares and the parties have been directed to partition the property mutually as per the sketch map admitted by both parties. Further, the decree was passed for pre-emption to the effect that none of the parties can transfer their respective absolute share to outsider. Accordingly, the Civil Court Commissioner was deputed and he has prepared the report which is correct, legal and there is no wrong on it. Hence, the correct final decree proceeding is found to have been drawn up by the courts below which requires no interference.
DISCUSSIONS:
9. It is the admitted fact that there is a preliminary decree passed 5 in the suit filed by the plaintiff. It is also admitted fact that the defendant had not filed written statement, but had contested the suit. In that suit, the plaintiff had filed an affidavit and a sketch map vide Exts. 3 and 4, where the plaintiff and defendant have taken a mutual settlement allotting 4.1/2 dec. of the suit land to the plaintiff and rest of 4.1/2 dec. to the defendant. That document had been admitted by both parties. It is also not in dispute that the preliminary decree was passed basing on the plaintiff's evidence including the documentary evidence which the defendant admitted. On perusal of the judgment of the lower trial court while passing the preliminary decree, it appears that it had passed the decree on contest, although the material had been adduced as if there is comproise between the parties allotting respective shares. So, the operative portion of the preliminary decree is quoted below:-
" The suit be and the same is decreed on contest without cost. The suit land as shown in the sketch map and admitted by the parties is equally partitioned between the plaintiff and the defendant. The red portion of the sketch map of R.O.R. of Holding No.92, Plot No.2738 for an area of A.0.041/2 decimal is given to the defendant and the green colour portion of the same plot for the same area is given to the plaintiff. Further a decree of pre-emption is passed with effect that none of the parties can transfer their individual absolute share to any outsider or third party. Advocates' fees are at contested rate."
10. It is not in dispute that the defendant filed final decree proceeding to make the aforesaid preliminary decree final. The plaintiff did file objection in the final decree proceeding and after hearing both the parties the preliminary decree was made final on 21.4.2016. In further course of action, the Civil Court Commissioner was deputed to partition the suit property in accordance with the preliminary decree. The courts below 6 have already held that the Civil Court Commissioner has made partition of the suit property between the parties in accordance with the preliminary decree. The objection of the plaintiff is that the house standing on the plot has not been partitioned into two equal shares although it was the terms and condition of the preliminary decree which is not a fact, because the aforesaid operative portion of the preliminary decree does not show that the house standing on the suit plot as per the sketch map admitted by both parties has to be divided into two equal shares. But it is clear that the red portion of the 4.1/2 dec. out of the suit land would go to the defendant and rest 4.1/2 dec. of the suit property with green colour would go to the plaintiff. The appellant has not disputed about the allotment of the quantum of share by the Civil Court Commissioner as per the preliminary decree to the respective parties, but only objected to the same about division of the house in question standing on the suit plot.
11. It is reported in A.I.R. 1961 S.C. 790; Kaushlaya Devi and others v. Baijnath Sayal (deceased) and others at paragraph-10 Their Lordships held in the following manner:-
"(10) ::::..The whole object of enacting S. 97 was to make it clear that any party feeling aggrieved by a preliminary decree must appeal against that decree; if he fails to appeal against such a decree the correctness of such a decree cannot be challenged by way of an appeal against the final decree, which means that the preliminary decree would be taken to have been correctly passed. When S. 97 provides that the correctness of the preliminary decree cannot be challenged if no appeal is preferred against it, it clearly provides that if it is not challenged in appeal it would be treated as correct and binding on the parties:::.."
12. With due regard to the aforesaid provision it is clear that the 7 final decree has to be drawn up in accordance with the terms of the preliminary decree. It is true that there can be more than one preliminary decree in a suit and every decree before being final can adjudicate the right of the parties, but last one decree is the final decree. Of course that depends on the quite numbers of cause of action. Here on 21.4.2016 the preliminary decree passed in C.S. No. 83 of 2010 has already become final and accordingly the Civil Court Commissioner was only directed by the learned court below to partition as per the preliminary decree. Said order has not been challenged, but later order dated 25.7.2016 on report of the Civil Court Commissioner has been only challenged. Since the house in question has not been directed to be partitioned into two equal shares, the final decree proceeding followed by the report of the Civil Court Commissioner cannot go beyond the terms of the preliminary decree and order of final decree dated 21.4.2016.
13. It appears from the order of the lower appellate court that he has considered the report of the Civil Court Commissioner who carved out the shares of the parties. According to the sketch map attached to the preliminary decree and found no mistake in his report dated 20.6.2016 and found no mistake. Same view has been also taken by the learned trial court. At the stage of Second Appeal re-a`ppreciation of the report of the Civil Court Commissioner is not permissible unless the report is perverse or against the preliminary decree. When both the courts below have already appreciated the report of the Civil Court Commissioner after hearing the parties and found same is prepared in accordance with the preliminary decree, neither the report is perverse nor the finding of the learned court 8 below is perverse while accepting the said report. Hence, in this Second Appeal, the claim of the learned counsel for the appellant to reject the report of the Civil Court Commissioner finds no force.
14. The substantial questions of law as to whether the plaintiff can claim any share over the ancestral residential house which stands on the portion of the suit land allotted in favour of the defendant in a final decree depending upon the evidence adduced by both parties while passing preliminary decree and report of Civil Court Commissioner. No doubt, the ancestral house if found in suit schedule for partition, same should be partitioned provided there are terms and condition between the parties, but here the terms and conditions as per the preliminary decree is to allot 4.1/2 decs. to plaintiff and 4.1/2 decs. to defendant without any partition of house if any on the suit land. Of course said decision is based on Ext.3. Moreover, report of the Civil Court Commissioner shows that plaintiff has got newly built house on his allotted plot wherein a dilapidated house is on allotted plot of defendant. So the allegation of appellant that such house is partible is not correct. Thus, the plea of the appellant that there is a residential house which stands on the portion of the suit land allotted in favour of the defendant, but without disputing the mutual settlement by allotting respective share between plaintiff and defendant is a new claim in the appeal which is not permissible inasmuch as the Second Appellate Court being required to delve into the issue of substantial questions of law is not required to entertain the fresh plea of facts which was not agitated before the courts below. Moreover, the records of lower courts show that the preliminary decree proceeding has already become final by virtue of order 9 dated 21.4.2016 which has already been confirmed by the learned lower appellate court and such finding has not been challenged in this Second Appeal being attained finality.
15. In terms of the discussions made hereinabove the Court is of the view that both the substantial questions of law have been answered as discussed in above paragraphs, thus this Court do not find any merit in the appeal as well as in the Misc. Case. Hence, the order of the learned lower appellate court is hereby confirmed.
In the result R.S.A. No.55 of 2018 and Misc. Case No. 238 of 2018 being devoid of merit stand dismissed. Respective parties shall bear their own cost.
The L.C.R. be returned back forthwith.
.
Dr. D.P. Choudhury, J Orissa High Court, Cuttack Dated the 26th June, 2018/DNP 10