ANANT AMBAJI GITE Vs. DNYANESHWAR SHANKAR GITE

JUDGEMENT

(1.) THIS writ petition filed under Article 227 of the Constitution of India is directed against the order passed by Extra Assistant Judge, Satara on 7th July, 1984 whereby he set aside the order passed by Joint Civil Judge, Junior Division, Satara on 16th October, 1981, remanded the matter back to the said Court with direction to proceed with the application Exh. 11 for drawing the final decree. The facts leading to the controversy are short and may be narrated briefly.

(2.) ONE Namdeo Gite had four sons viz. (i) Ganpati, (ii) Nagu, (iii) Ambaji, and (iv) Shankar. In the year 1928 Ganpati filed suit for partition and separate possession regarding agricultural lands and house property bearing No. 1014 against his three brothers. In the said suit Nagu was impleaded as first defendant, Ambaji as second defendant and Shankar as third defendant. The trial Court on 8th April, 1930 decreed the plaintiffs suit in respect of agricultural land by declaring that plaintiff (Ganpati), first defendant (Nagu) and second defendant (Shankar) had 1/3rd share each. As regards second defendant (Ambaji) share the Trial Court awarded a sum of Rs. 4,500/- to him and charge was kept on the house property. In respect of the house property, the trial Court declared 1/4th share of all four brothers. The trial Court also directed that plaintiff, first defendant and third defendant shall pay a sum of Rs. 1500/- to second defendant Ambaji as a condition precedent for execution of the decree. The third defendant (Shankar) is reported to have died leaving behind the present respondents as his heirs. The legal representatives of Shankar purchased 1/4th share of Ganpati and 1/4th share of Nagu under Registered sale deed and thus became entitled to 3/4th share while the petitioners who are legal heirs of Ambaji held 1/4th share in the suit house. On 17-11-1978 the present respondents made an application before Civil Judge, Junior Division, Satara. It was prayed therein that final decree be drawn, the house be divided by metes and bounds and possession of 3/4th share in the house be given to them. The present respondents also deposited the amount of Rs. 4,500/- which was ordered to be deposited in the judgment dated 8th April, 1930. The trial Court registered the said application as Regular Darkhast No. 154 of 1978 and after issuing Notices under Order 21, Rule 22 C. P. C. rejected the said application by an order dated 16-10-1981. The reason for dismissal of the said application was that such Darkhast application having been made after a lapse of 48 years was time barred and untenable. The order passed by the Joint Civil Judge, Jr. Division on 16-10-1981 was carried in appeal and the Extra Assistant Judge, Satara by his order, as observed above set aside the said order of Civil Judge, Junior Division, Satara and remanded the matter back to the said Court for proceeding with the application Exh. 11 for drawing final decree.

(3.) THERE is no doubt that suit filed by the plaintiff Ganpati was for partition and separate possession of agricultural lands and house property against his brothers. On 8th April, 1930 the Trial Court declared 1/3rd share each of plaintiff, first defendant and third defendant in the agricultural land and 2nd defendant was awarded Rs. 4,500/- in lieu of his share. As regards the house property all the four brothers were held to have 1/4th share. Since the second defendant was awarded Rs. 4,500/-- in lieu of agricultural land, it was declared by the trial Court that plaintiff, first defendant and third defendants shall pay Rs. 1,500/- each to second defendant Ambaji as a condition precedent before execution of the decree. On perusal of the decree dated 8th April, 1930 it is clearly revealed that as regards the agricultural land, since it was assessed to payment as revenue to the Government, the decree was in the nature of final decree and after declaration of the share of the plaintiff, first defendant and third defendant, nothing further was required to be done by Civil Court and partition of the agricultural land was to be done by Collector in accordance with such declaration and the provisions of section 54 is of Civil Procedure. However, as regards the house property, the decree dated 8th April, 1930 is nothing but a preliminary decree within the meaning of Order 20, Rule 18 of the Code of Civil Procedure Code and a further enquiry was necessary for partition of the said house after the shares were declared by the trial Court on 8th April, 1930. The decree dated 8th April, 1930 as regards the house property being only a preliminary decree, question of its execution did not arise and there being no time limit prescribed for making the application for drawing the final decree, the application made by the present respondents on 17th November, 1978 could not have been held to be time barred. As a matter of law on passing of the preliminary decree in respect of house property declaring shares of respective parties, the suit for partition had not come to an end. The proceedings for drawing the final decree after passing of the preliminary decree in the suit for partition is continuation of suit. In a suit for partition of immovable property or separate possession of a share therein which is not assessible to the payment of revenue, if the partition or separation cannot be conveniently made without further enquiry, the Court only passes preliminary decree declaring the rights of parties and it is the duty of the Court which passes the preliminary decree to proceed for drawing the final decree. This course can be exercised by the Court either suo motu or on an application by a party. Article 137 of the Limitation Act cannot be applied to such exercise. The final decree of partition by metes and bounds having not been passed, the decree had not yet become enforceable and, therefore, Article 136 of Limitation Act has no application and the limitation prescribed under Article 136 of the Limitation Act has not even begun to run. The Appeal Court, therefore, was right and rather fully justified in holding that the application made by the respondents herein on 17th November, 1978 is an application in the nature of prayer to the Court to draw final decree and, therefore, rightly set aside the order of the Civil Judge and remanded the matter back to the said Court for proceeding further with the said application for drawing the final decree.