DHIRENDRA NATH SARDAR Vs. SARALA BALA NASKAR

JUDGEMENT

(1.) - This appeal arises out of concurrent findings of both the Courts below in respect of passing a preliminary decree in a partition suit. If such part is concurrent finding of fact the same cannot be taken into account by this Court in second appeal. But it has to be determined. Since at the time of admission of the appeal in 1971 or before, there was no procedure prescribed for the purpose of formulating point/s and since there is no bar about formulating point even at the time of hearing of the second appeal, hereby formulate the following points for due consideration:

(2.) So far as the first point is concerned, I find that both the Courts below elaborately considered even the question of law in addition to the question of fact in coming to an appropriate conclusion by holding that when there was no solenama acted upon and/or final decree on stamp paper was drawn in respect of a compromise decree in the earlier partition suit, there was no bar for bringing a second suit on that score. Incidentally, I was going through the Order 23 Rule 3A of the Code of Civil Procedure which speaks that no suit shall lie to set aside a decree on the ground that the compromise on which the decree is passed was not lawful. Such amendment was effected from 1st February, 1977. The suit was instituted long prior thereto even the second appeal was pending from 1971. But during the pendency of the second appeal, amendment came into force. Be that as it may, the prescription of such rule is that the second suit cannot be filed provided compromise is under challenge being not lawful. This arises out of fraud or misrepresentation of fact etc. Here, there is no such case. In the instant case, in spite of lawful compromise decree, the property was not actually partitioned by metes and bounds. No step was taken by either of the parties therein on that score. Therefore, if effect, earlier suit became infructuous. Having so, I find there is a justiciability for both the Courts to hold that the second suit is no bar. The second suit was instituted by the purchaser of the purported 50% share-holder/s of the property. Therefore, unless and until fresh determination of 50% by a preliminary is determined followed by final decree giving effect of partition by metes and bounds a partition suit cannot be said to be disposed of finally. The Court cannot jump upon the final decree until and unless there is a preliminary decree nor it can construe that the preliminary decree allegedly passed in earlier suit is a continuous process of passing final decree herein. I do not find any error committed by the Court of first instance or first Appellate Court. A ratio of the Division Bench judgment reported in 10 CalWN 839 (Madan Mohan Mondal & Ors. v. Baikanta Nath Mondal & Anr.) was followed.

(3.) The next point is that what would be the fate of the transfer during the pendency of the second appeal. The learned counsel appearing for the transposed appellants contended before this Court that in the judgment reported in 5 CLJ (1907) 563 (Faiyaz Husain Khan v. Munshi Prag Narain & Anr.) it was held that pendente lite neither party to the litigation can alienate the property in dispute so as to affect his opponent. He also cited a judgment reported in (1995)6 SCC 50 (Surjit Singh & Ors. v. Harbans Singh & Ors.) wherein it was held that it is the duty of the Court as also the right to treat the alienation/assignment as having not taken place at all for its purpose. By going one step further the Supreme Court held that assignees/transferees in the event, if claim to be impleaded as parties to the lis, cannot be permitted to be impleaded as parties in disobedience of its order. He further relied upon a judgment reported in 1999(2) CHN 704 (Smt. Bijali Naskar v. Sri Amalendu Saha) wherein it was held that a transferee by virtue of so-called transfer in violation of the order of injunction acquired no title and as such transfer is to be treated as non-existent. In the instant case, interested parties were impleaded as respondents by an order dated 5th March, 2002. Transfer, if any, was not only challenged but was made clear by the Court that the order of injunction is operative. In such circumstances, I do not find any reason but to hold that the transfer is not valid in the eye of law. Therefore, it has to be rescinded and/or cancelled. Incidentally, it is to be recorded hereunder that since the appeal is arisen out of an partition suit where all the plaintiffs are treated to be defendants and the defendants are to be treated as plaintiffs, the respondents were transposed to the category of appellants by an order dated 4th September, 2002 and proceeded with this appeal for its disposal decision given by this Court in merit is effective amongst the parties. So far as the cross-objection before the first appellant Court is concerned, the learned counsel has not pressed anything in this regard, therefore, such part has not been taken into account by this Court.