CHANDRA BAI Vs. CHAMPA BAI

JUDGEMENT

(1.) Appellants have filed this appeal under Sec. 100 of the Code of Civil Procedure assailing the judgment and decree dtd. 25/3/2005 passed by the II Additional District Judge, Seoni in Regular Civil Appeal No. 6-A/2005 modifying the judgment and decree passed by the trial Court in Civil Suit No. 254-A/2002 filed by the plaintiff/respondent No.1.

(2.) The first appellate Court has finally held that the respondent No.1 is entitled to get 1/3 share in the suit property i.e. Kh. No. 32/1 area measuring 0.470 hectare and Kh. No. 33 and 34 area measuring 2.144 hectare whereas the trial Court while passing the judgment and decree granted 1/2 share in favour of plaintiff/respondent No.1. The appellate Court modified the judgment and decree passed by the trial Court to the extent that instead of 1/2 share the respondent/plaintiff was entitled to get 1/3 share in the property.

(3.) A cross objection has also been filed under Order 41 Rule 22 of CPC by the respondent/plaintiff claiming that the preliminary decree has been passed by the Court but no final decree has been passed. It is averred in the objection that if during the interregnum period i.e. after passing of the preliminary decree and before the final decree, the events and supervening circumstances occur necessitating changes in the share then the Court can modify the preliminary decree and another preliminary decree can be passed redetermining the right and interest of the parties considering the changed circumstances. As per the respondent, Sec. 6 of the Act, 1956 has been amended w.e.f. 9/9/2005 and as such taking note of the said aspect it is clear that the respondent is entitled to get 1/2 share in the suit property and thus preliminary decree passed by the trial Court may be affirmed and respondent be granted half of the share.