MURLI MANOHAR Vs. LACHMANJI

JUDGEMENT

(1.) This is a defendants' appeal arising out of a judgment dated 22-11-1946 passed by the learned Addl. Civil Judge of Banaras by which a decree was granted to the plaintiffs-respondents setting aside the final decree dated 15-1-1944 passed in partition suit No. 466 of 1939 of the Court of the Munsif Haveli, Banaras, on the ground of gross negligence on the part of the guardian ad litem of the minor plaintiffs.. The parties to the suit are members of the same family. Defendants Nos. 1 and 2, namely, Murli Manohar and Govind Lal, instituted the suit No. 466 of 1939 against the present plaintiffs and defendants Nos. 3 to 15 for partition of the property specified in Schedule A of the present plaint which admittedly was joint ancestral property of the parties. There was another property which was specified in Schedule B of the present plaint. This property was not included by the plaintiffs in the earlier suit aforesaid. In that case natural guardians of the present plaintiffs who were then minors refused to act as their guardian-ad-litem and Sri Chhail Beharilal Verma a pleader of the Court was appointed their guardian-ad-litem. The defendants pleaded in that suit that the property specified in Schedule B was also joint ancestral property and should be brought into hotch pot for purposes of partition. The trial Court framed issue No. 6 on that point which was to the following effect:

(2.) The trial Court found on that issue that this property was joint family property and was liable to be partitioned. The trial Court therefore by judgment and preliminary decree dated 6-12-1940 directed that a preliminary decree for partition of l/6th share of the plaintiffs and of an equal share of the defendants Nos. 5 and 6 in the property detailed at the foot of the plaint (with the exception of houses Nos. 241, 251, 243, 243/1 and 244) find also in the six shops situate in Mauza Sheodaspur be passed. Certain further directions were given under the preliminary decree with which we are not concerned. It was the 'property in Sheodaspur which was the subject of contention under issue No. 6 aforesaid. As against the judgment and decree of 6-12-1940 two appeals were preferred by different parties before the District Judge of Banaras. Both the appeals were dismissed by the Addl. Civil Judge on 21-9-1940 and the decree of the trial Court was affirmed. On 31-1-1943 Murli Manohar and Covind Lal applied in the Court of the Munsif, Havali tu get a final decree prepared in pursuance of, and in accordance with, the preliminary decree. In that proceeding no notice was issued to the present plaintiffs or to the other defendants Nos. 3 to 15. The Amin was called upon to prepare Kuras for the preparation of the final decree. The Amin submitted a report on 9-11-1943. Certain objections were taken against it by the then plaintiffs and by defendants Nos. 5 and 6 but some of them withdrew their objections subsequently. Defendants 1 and 3 also filed an objection against the Amin's report. Their objection was twofold, namely that the Amin had overvalued the property described as bungalow No. 8 within the cantonment of Banaras by valuing the site as a whole which belonged to the Government and in which the parties had no proprietary title; and, secondly, that these shops stood over plot No. 1 of Sheodaspur and plot No. 1 had already been partitioned by the revenue Court. Learned Munsif by his order dated 18-11-1944 repelled the two objections stated above holding that the property had not been overvalued and that the shops at Sheodaspur could not be partitioned in the present suit because they stood over land which had already been partitioned by the revenue Court. The learned Munsif was of the view that what was contained in the original judgment of the Court and in the preliminary decree was a direction to the effect that

(3.) In paragraphs 10 and 11 of the present plaint the following averments were made :