GANGA DUTT MURARKA Vs. BIBHABATI DEBI

JUDGEMENT

(1.) This is an appeal by defendant 1 Ganga Dutt Murarka who had purchased 5/6th share of the disputed property from one of the co-sharers from an order under Section 4, Partition Act. After the purchase of 5/6th share of the disputed property by defendant 1, Bibhabati who acquired 1/6th share of the disputed property under the Will of her mother instituted a suit for partition. There was a preliminary decree on 17-6-1952. Thereafter she made an application under Section 4, Partition Act. The application was opposed by defendant 1 on two grounds, namely, that the plaintiff was not a member of the undivided family to which the disputed property belonged, and, secondly that the application was not maintainable in law. The learned Court below overruled both the objections and allowed the application of Bibhabati under Section 4, Partition Act.

(2.) Mr. Gupta on behalf of the appellant does not raise before us any of the two points taken before the trial Court, but raises a new point altogether, namely, that there was no investigation by the Court below as to whether the entire disputed property really formed a dwelling house and whether to the whole of this property Section 4, Partition Act applies.

(3.) Before proceeding to deal with the point in controversy in this appeal it is necessary to dispose of certain preliminary objections raised on behalf of the respondent. This objection is based on Section 8, Partition Act under which any order for sale made by the Court under Sections 2, 3 or 4 is deemed to be a decree within the meaning of Section 2, Civil P. C. Mr. Chakravarty on behalf of the respondent argues that if an order for sale is deemed to be a decree within the meaning of Section 2, Civil P. C. an appeal from it is really an appeal from a decree and not an appeal from an order so that this Court which is vested with jurisdiction to hear miscellaneous appeals which means appeals from orders has no jurisdiction to hear this appeal. Mr. Chakravarty also raises the question that the necessary court-fees payable on the memorandum of such an appeal has not been paid. In the Appellate Side Rules there is really nothing to indicate whether appeals from orders under Sections 2, 3 or 4, Partition Act are to be treated as Appeals from Original Decrees or as Appeals from Original Orders. Rule 64 of Chapter 9 of the Appellate Side Rules relating to the preparation of paper-books in Appeals from Orders lays down that the rules for the preparation of paper-books in Appeals from Original Decrees valued under Rs. 20,000/- or valued at Rs. 20,000/-or more shall apply respectively to every first appeal from an order of the like value including an order under Section 47, Civil P. C. passed by a Subordinate Court not being an Order under Order 41, Rule 23 of the same Code with certain modifications. This does not really help us in determining whether an Appeal from an Order under Section 4, Partition Act which, is to be deemed to be a decree within the meaning of Section 2, Civil P. C. is to be treated as an Appeal from an Original Order or an Appeal from an Original Decree. In a publication known as the Rules of Business of the Judicial Department, Appellate Side, High Court, Calcutta, prepared under the orders of the Chief Justice as far back as 1923 at page 48 are enumerated certain things as Appeals from Original Decrees and certain others as Appeals from Orders. In this second category are included Appeals from Orders under Sections 47 and 144, Civil P. C. which also under Section 2, Civil P. C. are deemed to be decrees. An order under Section 4, Partition Act which is deemed to be a decree within the meaning of Section 2, Civil P. C. seems to us to be on a par with orders under Sections 47 and 144, Civil P. C. and so appeals therefrom may be classified in the same way as Appeals from Orders under Sections 47 and 144, Civil P. C. Equally reasonably appeals from Orders under Section 4, Partition Act may be classed as Appeals from Original Decrees, but as there is no classification at all of such appeals anywhere, it is impossible to say, that it is wrong to classify them as Appeals from Orders. Consequently, as the appeal before us has been described as an Appeal from an Order we are treating it as though it were really an Appeal from an Order although it may have been differently described as an Appeal from an Original Decree. In that view we are of opinion that we have jurisdiction to deal with the appeal. Why such appeals are described as Miscellaneous Appeals, a term, which is nowhere used in the Appellate Side Rules it is difficult to say except that the term is in use in the Civil Rules and Orders in which applications under Sections 47 and 144, Civil P. C. are described as miscellaneous cases so that appeals arising out of them have been classified in the Civil Rules and Orders as Miscellaneous Appeals, and that it may have crept into this Court from that source.