SOHAN LAL Vs. JAMUNAWATI & ORS

JUDGEMENT

(1.) This is an appeal against the final judgment/decree dated 16th March, 2016 passed by the Trial Court wherein a final decree has been passed in the following terms:

(2.) Admittedly, a preliminary decree was passed vide judgment dated 17th September, 2015 by which property bearing no. 16/347, Gali No. 03, Bapa Nagar, Pyare Lal Road, Karol Bagh, New Delhi-110005 was directed to be partitioned in favour of the Legal Heirs of Late Sh. Rati Ram in the following terms:

(3.) On a query by the Court, learned counsel for the Appellant submits that no appeal was preferred challenging the preliminary decree dated 17th September, 2015 and the present appeal is directed only against the final decree by which the Court has directed auctioning of the property. In the absence of a challenge to the preliminary decree of partition, as per Section 97 of the CPC, in an appeal against the final decree, the findings of the preliminary decree cannot be assailed. In the present case, the shares of the various parties have been determined by the Preliminary decree which has not been challenged. The final decree merely directs the auction. No arguments on the merits of the final decree, i.e., to the existence of any other mode of partition was addressed by the Appellant. In Ganduri Koteshwaramma & Anr. v. Chakiri Yanadi & Anr., (2011) 9 SCC 788 it was held by the Supreme Court that in an appeal against the final decree, the Court may modify the Preliminary decree, if there are changed circumstances. The Supreme Court observed: