GAURI BEWA Vs. PARSURAM BISWAL

JUDGEMENT

(1.) Defendant No. 3 and the legal representatives of defendant No. 2 are the appellants against a final decree proceeding. The facts giving rise to the present appeal are as follows : - - A preliminary decree was passed on 8 -3 -1976 in which the original plaintiff got 1/9th share and defendants 1 and 2 each got 4/9th share. A final decree proceeding was initiated and the possession was delivered. On 12 -12 -1979 the original plaintiff sold Ac. 0. 92 decimals of land from Plot Nos. 505 and 362 to present respondent No. 1. Defendant No. 3 had filed Civil Revision No. 375 of 1981 in the High Court wherein it was held that the original plaintiff and defendants 1 and 2 were entitled to 1/6th share each. On the basis of the aforesaid revised preliminary decree, a fresh final decree proceeding was initiated. The present respondent No. 1, a purchaser from the original plaintiff, got himself impleaded in the final decree proceeding. The trial court by order dated 22 -12 -1989 gave a fresh direction for division of the property keeping in view the possession of the plaintiff over the purchased property. The Commissioner effected the division dividing the two alienated properties in accordance with the shares of the parties which was objected to by the present respondent No. 1. The trial court, however, accepted the report of the Commissioner and passed the final decree. The present respondent No. 1 preferred appeal. It was contended by the purchaser that Ac.0.92 decimals purchased by him did not exceed the allotted share of original plaintiff and since the agricultural land had been converted to homestead by making improvement of the property, the said property should be allotted to the share of the original plaintiff/purchaser. The lower appellate court purporting to follow the decision reported in A. I. R. 1926 Madras 774 (Kandaswami Udayan v. Velayutha Udayan) and 1974 (1) C.W.R. 222 (Gananath Sahu and another v. Smt. Bulli Sahu and others) directed that the purchaser should be allotted the propertypurchased by him if it is found that the house is standing on the purchased plots and if stands over one of the purchased plots, the same should be given and the other plot be distributed among the co -sharers including the purchaser in accordance with their share. The said decision of the lower appellate court is under challenge in the present appeal.

(2.) AT the time of the appeal the following substantial question of law was formulated : - - 'Whether defendant No. 6, the purchaser, can be allotted the land purchased by him, if it causes prejudice to the other co -sharers ?'.

(3.) THERE is some dispute as to whether the purchased land was initially an agricultural land and subsequently developed by the plaintiff and/or the purchaser. There is no evidence nor any finding either by the trial court or by the lower appellate court as to whether any prejudice would be caused to others if the purchased land would be allotted to the share of the original plaintiff/purchaser. If the purchased land was homestead property at the time of filing of the suit and there is no other homestead land available, one may visualize that some prejudice may be caused to other co -sharers. If, on the otherhand, the purchased property was an agricultural land which has been subsequently converted to homestead either by the original plaintiff or by the purchaser, it cannot be said that prejudice would be caused to others merely because such land is allotted to plaintiff/her vendee. It has been contended that the purchased land being adjacent to the road is very valuable. Such excess valuation can be adjusted by allotting more lands to others or even directing payment of proportionate amount. Even though the lower appellate court has relied upon certain decisions, it has not tried to find out if any prejudice should be caused to other parties. Similarly, the matter has also not been thrashed out properly before the trial court. Even the lower appellate court has observed that there is no material from the side of the appellant (the purchaser, present respondent No. 1) regarding the extent of money spent by him in making improvement of the property.Since adequate materials were not brought on record, I think interest of justice would be served by setting aside the decisions -of both the courts below and remanding the matter to the trial court for fresh disposal. If necessary, the trial court can depute a Commissioner to effect partition, keeping in view the observations made above. Parties are directed to appear before the trial court on 26th April, 2001. The trial court should finalise the matter as expeditiously as possible, preferably within six months. There will be no order as to costs of the present appeal.