LAXMI NARAIN Vs. HARI PARKASH

JUDGEMENT

(1.) Laxmi Narain and others i.e. plaintiffs (now appellants before this court) who are four in number filed a suit for partition of the abadi deh land of village Pahrawar on 10.4.1974, which culminated into the passing of a preliminary decree for partition on 1.6.1974. Consequent upon the passing of the preliminary decree, a final decree was to be passed by the trial Court after obtaining report of the Local Commissioner which was actually received on October 31, 1974. Certain objections to the report were filed, one of them being that the land was impartable in view of the fact that it vested in the Gram Panchayat under the provisions of Section 2(g) (4-a) of Punjab Village Common Lands (Regulation) Act, 1961 (for short 'the Act'). The trial Court on April 14, 1978 accepted the objections and dismissed the suit of the plaintiffs. An appeal was filed by the plaintiffs which was decided on 25.1.1979 by the Additional District Judge. He ordered the return of the plaint for presentation to the Assistant Collector on the ground that civil Court lacked jurisdiction to entertain the suit on account of the bar contained in Section 13 of the Act. The plaintiffs feeling dissatisfied came up before this Court in appeal which was allowed by G.C. Mittal, J. on 10.11.1983. It was held by this Court that by virtue of the amendment having been made by enacting Act No. 2 of 1981 clause (4-a) was deleted from Section 2(g) of the Act and because of change in law, the Act would not be applicable and the land could not be treated as shamilat deh. It was held that the land was partible. However, this Court allowed the objectors to press their other objections which, according to them, they have raised in their objection petitions. The trial Court was directed to proceed with the case from the stage prior to the passing of the judgment and decree dated 14.4.1978. It may be observed at this stage that on this date, final decree was not passed. The operative portion of the judgment rendered by G.C. Mittal, J. reads as under :-

(2.) The trial Court after the remand of the case considered the objections of as many as 14 objectors in the matter of preparation of final decree. The objection-petition was filed by Hari Parkash on 4.11.1986 which was dismissed on 5.2.1987. It is on that day that the final decree was prepared by the trial Court. An appeal was filed by the defendants (who are respondents before this Court) against the preparation of the final decree. The Additional District Judge has allowed the appeal primarily on two grounds. In the first instance, it has been held that before the passing of the preliminary decree provisions of Order 1 Rule 8 C.P.C. were not complied with. In the second place, it has been held that the total area and share of the proprietors has not been indicated in the preliminary decree. In the final conclusion, the case has been remanded to the trial Court for fresh trial and decision in accordance with law and in the light of the observations made in the judgment.

(3.) Mr. R.S. Mittal, Senior Advocate, learned counsel for the appellants, has argued that the Additional District Judge could not go into the question whether the provisions of Order 1 Rule 8 C.P.C. were complied with or not in appeal because this question pertained to a stage when the trial Court was to pass a preliminary decree. He has further argued that the Additional District Judge has committed an error in holding that the area and share of the proprietors was not indicated in the preliminary decree. His precise argument is that by recording the afore-mentioned findings the Additional District Judge has gone behind the preliminary decree which could not be done at his stage when final decree was to be prepared by the court after taking into consideration the report of the Local Commissioner. The argument of Mr. Mittal has be got a lot of merit and deserves acceptance. After the passing of the preliminary decree no defect of the compliance with the provisions of Order 1 Rule 8 C.P.C. could be pointed out by the court which is concerned only with the preparation of final decree. If this is allowed to be done, it would amount to re-opening of the preliminary decree which has already become final. On the same analogy, if cannot successfully maintained that the total area and the share of the proprietors was not indicated in the preliminary decree.