LAXMIN Vs. KHAGESHWAR SINGH

JUDGEMENT

(1.) BY this second appeal present appellant has challenged the legality and propriety of the judgment and decree dated 18-12-2001 passed by Second Additional District Judge, Raigarh, in Civil Appeal No. 12-A/99, affirming the judgment and decree dated 5-1-98 passed by the Civil Judge Class I, Sarangarh in Civil Suit No. 52-A/97 whereby learned Civil Judge Class I has partly decreed the suit of the respondent No. 1 lor declaration, partition and separate possession. Learned Counsel for the appellant has assailed the judgment and decree impugned on the ground that Court below has not considered the law that preliminary decree for partition of the immovable property is sine qua non and when will effecting the propriety not owned by the person is void ab initio.

(2.) THE brief facts of the case are that mother-in-law of the present appellant Sulochana has executed the Will of suit property on 22-10-2006. She died in the year 1991, after the death of Sulochana the present appellant has illegality mutated her name upon the entire property specially property in dispute thereafter a Revenue Case was filed and decided ultimately suit for declaration, title and possession in alternate of the partition of j of share was filed by the respondent No. 1. After affording the opportunity of hearing learned Civil Judge Class I has partly decree the suit and declaration. THE respondent No. 1 as an owner of the of the share of the property in dispute and decree for partition and possession same was affirmed in civil appeal impugned. Shri M.K. Bhaduri, Advocate for the appellant, Shri A.K. Athley, Advocate for the respondent No. 1 and Shri Rajendra Tripathi, Panel Lawyer for the State are heard.

(3.) AS regard the nature of decree, Le., whether it would be preliminary or final is concerned the property in dispute is an undivided estate assessed to the payment of revenue to the Govt. specially provisions has been made in Rule 18 of Order 20 and Section 54 of the Code of Civil Procedure, 1908 (in short 'the Code') and Section 54 of the Code, which reads as under: