RISHABH KUMAR JAIN Vs. GYANCHAND JAIN

JUDGEMENT

(1.) Being aggrieved by the order dated 20th December, 2010 passed by the XIX Additional District Judge, Jabalpur in M.J.C. No. 16/2010 rejecting the application under Order 20, Rule 18 read with sections 151 and 152 of Civil Procedure Code and also the application filed under section 4 of the Partition Act, 1893, this revision has been preferred. Prior to discussion of the facts, it is necessary to indicate that the applicant was defendant No. 3 in the partition suit bearing No. 6-A/82 which was filed by Smt. Sumat Rani, Ku. Sadhna and Pramod Kumar being the legal heirs of Surkhichandra. The respondent Nos. 1 and 2 in the revision are the purchasers of the share of Naval Kishore to the extent of 1/3rd right, fallen to his share. It is required to be noted that Nonelal and Phoolchandra were the real brothers and they are the owners of house Nos. 23, 24, 25 and 26 situated in Lordganj, Jabalpur. A registered partition was entered into between them on 2-7-1948 thereby house Nos. 23 and 24 came in the share of Phool Chand and House Nos. 25 and 26 came in the share of Nonelal. Nonelal was having three sons, namely, Naval Kishore, Sunderlal and Surkhichandra. Naval Kishore transferred his 1/3rd share by executing a registered sale deed dated 7-8-1979. The suit was filed by three legal heirs of Surkhichandra for partition joining Naval Kishore, Sunderlal as well as the remaining LRs of Surkhichandra which was numbered as 6-A/82 wherein a preliminary decree of partition was passed on 9-7-1985. As per the said decree it was directed that all the three brothers Naval Kishore, Sundarlal and Surkhichandra were having equal 1/3rd share in the property belonging to Nonelal i.e. house Nos. 25 and 26 and the house Nos. 23 and 24 fell into the share of Phoolchand be divested to his legal heirs. It was held in para 23 of the judgment that the plaintiff as well as the legal heirs of Surkhichandra as well as Navalkishore and Sunderlal are having equal share of 1/3rd in house No. 25 and 26 but in the operative part of the decree it was mentioned that the aforesaid three persons would get 1/3rd share in house Nos. 24 and 25 in place of 25 and 26. After passing the preliminary decree, the Court after appointment of the Commissioner and received the report passed the final decree on 25-11-2008. In the final decree also house Nos. 24 and 25 were partitioned in between the legal heirs of Nonelal i.e. Naval Kishore, Surkhichandra and Sunderlal having 1/3rd equal share therein. Thereafter purchased i.e. respondents No. 1 and 2 who have purchased 1/3rd share of Naval Kishore filed execution proceedings before the executing Court seeking possession of the share of Naval Kishore which was transferred to them by registered sale deed dated 7-8-1979. During the pendency of said proceedings, the applicant has filed two applications one is under Order 20, Rule 18 read with sections 151 and 152 of Civil Procedure Code praying amendment in the preliminary decree for correction of house Nos. 25 and 26, in place of house Nos. 24 and 25 because the aforesaid mistake is inherent and goes to the root of decree and after receiving the Commissioner's report afresh final decree by corrected. Another application was filed under section 4 of the Partition Act seeking right of pre-emption to the extent of share of Naval Kishore with respect to house Nos. 25 and 26. Both the applications were rejected by the order impugned, however this revision has been filed.

(2.) Shri Jain, learned counsel appearing for the applicant referring various paragraphs of the plaint as well as the preliminary decree passed on 9-7-1985, submitted that house Nos. 25 and 26 had fallen in the share of Nonelal after partition in between Nonelal and Phoolchand and house Nos. 23 and 24 had fallen in the share of Phoolchand after a registered partition dated 2-7-1948. The trial Court while passing the preliminary decree in para 9 has recorded such finding and it is held that the said two houses shall be divided in equal 1/3rd share of plaintiff and defendant Nos. 3 and 4 and also defendant No. 1 and 2 as well as legal heirs of Naval Kishore and Sunderlal. The finding to that effect has been recorded in paras 17, 18 and 19. It is submitted by him that in para 23 while granting decree in place of house No. 25 it has been mentioned as house No. 24 and in place of house No. 26 it has been mentioned as house No. 25. However on passing a preliminary decree the Commissioner's report has been received, but while passing the final decree on 24-11-2008 the aforesaid mistake has been continued. In such circumstances, prayed that after directing correction in the preliminary decree, it be directed that the corrected final decree be drawn after seeking a fresh report. It is further submitted that after passing a final decree the purchasers of 1/3rd share of Navalkishore have filed the execution proceedings seeking possession of the share to such extent wherein the application under section 4 has been filed by the applicant who is the legal heir of Surkhichandra seeking right of pre-emption, however the aforesaid application ought to be allowed and the trial Court committed error by rejecting both the applications. In support of his contention, reliance has been placed on the judgment of Apex Court in the case of Ghantesher Ghosh vs. Madan Mohan Ghosh and others, 1996 11 SCC 446. It is submitted that the application filed by the applicants under section 4 ought to be allowed and right of pre-emption against purchasers may be directed and the Court should act accordingly. It is said that relying upon the said judgment in the case of Gautam Paul vs. Debi Rani Paul and others, 2000 8 SCC 330, the Apex Court has reiterated the same view, therefore allowing the revision, the order impugned may be set aside.

(3.) Shri Khare, learned counsel appearing on behalf of respondents No. 1 and 2 has raised preliminary objection that after passing preliminary decree the application so filed by the applicant under Order 20, Rule 18 read with sections 151 and 152 of Civil Procedure Code is not maintainable. It is submitted by him that merely mentioning a wrong house number in the decree would not substantially affect the right of the parties because as per the registered partition dated 2-7-1948, the property situated in the red hedges as fallen in the share of Nonelal and that has been divided equally in 1/3rd share to Naval Kishore, Sunderlal and Surkhichandra. However, the report of Commissioner has been received with respect to the property indicated as 'A', 'F', 'T' and 'U', therefore even specifying the wrong house number in the preliminary decree would not substantially affect the parties because the partition has taken place with respect to the property which has fallen in the share of Nonelal indicated in red hedges. In view of the foregoing, it is urged that the interference at such a belated stage on an application filed by the applicant for correction of the preliminary decree and final decree is not warranted. So far as the right to pre-emption claimed by the applicant by filing application under section 4 of the Partition Act is concerned, it is urged that the said application is not maintainable because during the pendency of the suit the legal heir of Sunderlal defendant No. 2 has filed application under section 4 of the Partition Act wherein the litigation went up to Hon'ble the Apex Court and vide judgment dated 6th September, 2001 the application so allowed by the High Court was set aside in the light of the judgment of Gautam Paul , however at this stage the application filed by the applicant is not tenable. It is further submitted that the applicant do not acquire any right to pre-emption at such a belated stage looking to the fact that such right is only available when the stranger has filed a suit. Reliance has been placed on a judgment of the Apex Court in the case of Babulal vs. Habibnoor Khan (Dead) by L.Rs. and others, 2000 AIR(SC) 2684. In view of the foregoing, prayer is made to dismiss the revision petition.