BABULAL Vs. HABIBNOOR KHAN

JUDGEMENT

(1.) The short question posed for our consideration in this appeal on grant of special leave under Article 136 of the Constitution of India is as to whether application moved under Section 4 of the Partition Act, 1893 (for short 'the Act') by respondent No. 1, who was the decree-holder in the partition suit, was maintainable in law.

(2.) A few facts leading to this appeal are required to be noted at the outset to appreciate this controversy between the parties.

(3.) Respondent No. 1 had brought a suit for partition and separate possession of his 1/4th share in a dwelling house situated at Indore in the State of Madhya Pradesh. The said dwelling house consisted of two portions belonging to an undivided family. One portion out of the two portions of the house had been sold to non-applicant No. 3 before the High Court Babu Rao who was a stranger to the family and the rest portion of it had been brought in a Court auction in execution of a mortgage decree by one Kundanbai, whose legal representative is the present appellant Babu Lal. The suit filed by respondent No. 1 was dismissed by the trial Court, but, in appeal a preliminary decree was passed for partition and separate possession of plaintiff-respondent No. 1's share in the suit property. Pursuant to the said preliminary decree a Commissioner was appointed to effect partition by metes and bounds and to apportion mesne profits among the claimants. One Afzalnoor Khan, the younger brother of respondent No. 1, who was one of the defendants, did not raise any objection, with the result that a final decree in terms of the preliminary decree came to be passed on 5th September, 1967. On 6th May, 1968 respondent No. 1-original plaintiff initiated execution proceedings for effecting the partition by metes and bounds on spot. Certain objections were raised by the appellant. They were overruled and it was found by the trial Judge on 7th November, 1973 that a supplementary final decree was yet required to be passed. In the meantime, the Commissioner submitted his report along with the site plans recommending the partition of the dwelling house.