MULUGU RAGHAVACHARYULU Vs. MULUGU SRI VENKATA RAMANUJA CHARYULU

JUDGEMENT

(1.) This is an application for leave to appeal to the Supreme Court against the decision of this Court in App. No. 698 of 1948. That appeal arose out of a, suit for partition instituted by the respondent in the Court of the Subordinate Judge of Narasapur. The present petitioner was the first defendant in the suit. His wife was the second defendant. The plaintiff alleged that he had been taken, in adoption by the defendants on 7th April 1932 and that as adopted son he was entitled to a half share in the family properties. On 6-7-1940 the first defendant had sold some of the suit properties to the second defendant under Ex. D-7 and settled other properties on her on 25-10-19.44 under Ex. D-10. The plaintiff contended that these deeds were not binding on him and that he was entitled to a half share in the properties comprised in those deeds. The defendants contested the suit on several grounds. They denied that they took the plaintiff in adoption. They contended that the deeds Exs. D-7 and D-10 were valid and binding on him. They also pleaded that the suit was barred by limitation. They raised several other pleas. On these pleadings, as many as 25 issues were framed. Of these, issues 1 to 3 are alone now material. They are as follows: "1. Whether the suit is barred by limitation because it is filed more than three years after plaintiff attained majority?

(2.) Whether defendants 1 and 2 adopted plaintiff on 7-4-1932 as alleged?

(3.) Whether the claim of plaintiff, if true, is defeated by exclusion for 12 years or adverse possession of first defendant?" At the hearing of the suit, these issues were tried as preliminary issues. The Subordinate Judge held in favour of the plaintiff on issues 1 and 3 on the question of limitation. But he held on the second issue that the plaintiff had not proved the adoption set up by him. On that he dismissed the suit. The plaintiff preferred an appeal against that decision to this court, appeal No. 698 of 1948, and in our judgment dated 12-11-1952, we held, differing from the Subordinate Judge, that the plaintiff had established his adoption. Agreeing with the Subordinate Judge on the question of limitation, we remanded the case for trial of the other issues. The first defendant has filed the present application for leave to appeal to the Supreme Court against this order. The point for decision is whether the order of remand dated 12-11-1952 is a final order within the meaning of Article 133 of the Constitution. 2. It is contended by Mr. P. M. Srinivasa Aiyangar, the learned advocate for the petitioner, that as we have decided on issue 2 that the plaintiff was adopted by defendants 1 and 2, our judgment would be a final order, because on that finding the plaintiff would be entitled to a half share in the family properties. But the truth of the adoption was not the only question in controversy between the parties. If that had been so, on our finding on issue 2, we should have passed a preliminary decree for partition, and that would have been open to appeal as a decree under Article 133. There are other and substantial questions on which the parties are at issue. For example, the plaintiff contends that the sale deed, Ex. D-7, dated 6-71940 and the settlement deed Ex. D-10 dated 27-10-1944 are not binding on him. The defendants, however, plead that they are valid and binding on him. Issues 4, 5 and 6 relate to this contention. Unless these issues are determined, there cannot be a final adjudication of the points in dispute in the suit. No doubt the issue as to adoption is an important one, and by reason of our finding on that issue, one obstacle to the plaintiff obtaining a decree is removed. But before he can obtain a preliminary decree for partition, other issues also must be determined. Therefore, our judgment is interlocutory in character, not final. 3. There is considerable and high authority interpreting the precise meaning of the words "final order". In --'Firm Ramchand Nanjimal v. Firm Goverdandas Vishandas Ratanchand', AIR 1920 PC 86 (A), the question arose with reference to an order passed under the Indian Arbitration Act. The defendant in an action applied for stay under Section 19 of the Indian Arbitration Act and that was granted. The Judicial Commissioner of Sind set aside that order and remanded the case for disposal on the merits. Leave to appeal against his order was granted on the ground that it was a final order. Before the Privy Council, an objection was taken that the order under appeal was not a final order. In upholding this objection, Viscount Cave, after referring to the English authorities on the subject, observed as follows: