NARAYAN NAYAK Vs. SARA BEWA AND ORS.

JUDGEMENT

(1.) DEFENDANT No. 1 is the Petitioner. Narayan (Defendant No. 1) and deceased Kali were brothers. Plaintiff is the widow of Kali. She brought a suit for partition. A compromise decree was passed on 14 -3 -1951. 'Ka' schedule lands were allotted to the Plaintiff, 'Kha' to Defendant No. 1 and 'Ga' was kept joint. Plaintiff's case is that this decree is a composite decree, partly preliminary and partly final, while the defence contention is that this is a final decree.

(2.) PLAINTIFF filed an application before the learned Munsif of Nilgiri on 5 -11 -1960 praying to make the decree final. On 20 -2 -1961, this application was dismissed by the trial Court on the finding that the compromise decree was a final decree does not arise. On 24 -4 -1961, the application for review was dismissed. The Plaintiff then filed an appeal before the learned Subordinate Judge of Balasore who allowed the appeal on 16 -11 -1961. Against this appellate order, this civil revision has been filed.

(3.) I will examine the second contention first. The facts leading to the controversy between the parties as to the nature of the decree arises in the following manner. In ' Ka ' schedule, plot No. 214 is of an area of 43 decimals. Out of this, Plaintiff was allotted 21 decimals. In the same manner, from out of different plots, portions have been carved out in favour of the parties. No direction or description has been given of the reduced area so as to indicate which portion of a particular plot was specifically allotted to the Plaintiff or the Defendant. No map was attached to the decree to resolve the conflict. The result is that on a bare perusal of the terms of the decree, the Court is not in a position to say which portion of a particular plot was allotted to which party. Mr. Mukherji contends that in the plaint itself there is an allegation that the parties were in possession of different portions of the same plot, and in the background of events the distribution, as made in the compromise decree, must be taken as to mean what the parties intended in the light of the factual position on the spot. This contention is not wholly preposterous. But the fact, still emerges, that the (sic), as framed, is likely to lead to future troubles in fixing the exact identity and the ownership of a particular area. Taking the decree as a whole, though Mr. Mukherji's contention cannot be said to be absurd, the better view would be to treat the decree as not the finally settling the specific and definite title of individual co -owners with respect to the property. In that view of the matter, taking the decree as a whole, I am inclined to agree with the lower appellate Court and not with the trial Court that the decree is partly preliminary and partly final.