NANJA NAICKEN Vs. RANGAMMAL

JUDGEMENT

(1.) THE sixth defendant has filed this civil revision petition against the order of the additional District Munsif, Erode, dismissing his application (I. A. No. 3587 of 1969)filed under Sections 151, 152 and 153, C. P. Code, Praying to amend the preliminary decree granted in O. S. 853 of 1965, by giving him the right of partition and separate possession of his share.

(2.) ON Rangammal instituted the suit against four defendants for partition and separate possession of her three-fourths share in the plaint-schedule property. On the 10th July 1969, a preliminary decree was passed directing division by metes and bounds of the plaint schedule property into 32 shares with reference to good and bad soil and directing allotment to the plaintiff of 24/32 share, and to the first defendant of 1/32 share. Subsequent to the preliminary decree, the plaintiff applied in I. A. No. 884 of 1968 for impleading three persons, of whom the petitioner was one, as defendants 6 to 8, on the ground that they were understood to have a share in the property forming the subject-matter of the preliminary decree. This petition was ordered by the court below. Summons was issued to the sixth defendant the petitioner, who field an answer claiming a share in the property but without specifying his share. He also affixed the requisite court-fee to his written statement. Subsequently he filed a memo specifying the exact share which he claimed in the plaint schedule property. When the petitioner was impleaded, final decree proceeding were pending before the court in pursuance of the original preliminary decree and a commission had been issued for division of the property in accordance therewith. In fact, the commissioner had already submitted his report and plea; but no final decree had yet been passed. It was in this context that the petitioner applied to the court below for amendment of the preliminary decree by declaring his share in the suit property. This petition was opposed by the plaintiff-respondent it whose instance the sixth defendant had been impleaded as a party after the date of the preliminary party after the date of the preliminary decree. The learned District Munsif gave two reasons for dismissing the petition. The first was that the petitioner had not in his written statement mentioned the exact share to which he is entitled. Evidently he overlooked the fact that subsequent to the filing of the written statement the 6th defendant filed a Memo in which he specified the share to be declared. The second reason was that the petition had been filed belatedly for the purpose of dragging on the proceedings. This is not a valid reason either. Be it noted that the sixth defendant was not originally impleaded as a party to the suit before the grant of the preliminary decree. If the claim made by him was belated, it was due to reasons mostly beyond his control. It must not be forgotten that a partition suit must be deemed to be pending till a final decree is actually granted. It is the duty of the court in a partition suit to adjudicate upon the claims of all the parties who claim a share in the subject-matter of the suit. Otherwise it would lead to endless anomalies and complications. It has been repeatedly held by this court that in a partition action more than one preliminary decree can be granted: Vide Kasi v. Ramanatha Chettiar, 1947-2 Mad LJ 523. In Phoolchand v. Gopal Lal, their Lordships of the Supreme Court have held as follows-

(3.) IN the result, the order of the trial court is set aside and the matter remanded to the trial court for fresh disposal in accordance with law. The trial court is directed to expedite the disposal of the matter. The revision petition is allowed with costs.