BALDEV SINGH Vs. MAGHAR SINGH

JUDGEMENT

(1.) THE defendants are in revision aggrieved against the order dated 16.9.2003 passed by the learned Trial Court allowing application for passing final decree of partition.

(2.) THE plaintiff Maghar Singh filed a suit for partition of his 2/7th share of land in dispute. A preliminary decree for partition was passed by the learned Trial Court on 20.11.1978 but could not move for preparing final decree as he being rustic villager was not aware of such requirement. It is pleaded that after the death of Bachan Kaur her inheritance has devolved upon the plaintiff and his two brothers namely Baldev Singh and Hari Singh and thus the plaintiffs have now got 1/3rd share. Since the defendants threatened to raise construction, the plaintiff filed a suit for separate possession by way of partition on 16.12.1994 and in the said suit it transpired from the written statement filed that there was earlier litigation. The plaintiff found certified copy of the judgment and decree after search and, therefore, the suit for partition was withdrawn on 15.6.1995 and the application for preparation of the final decree is beyond the period of limitation which is 3 years.

(3.) THE learned counsel for the petitioner has vehemently argued that the preliminary decree was passed on 20.11.1978 whereas the application for preparation of the final decree has been filed on 17.7.1995 i.e. almost after 17 years and thus application for preparation of final decree is beyond the period of limitation. Reliance is placed upon Venkatrao Anantdeo Joshi and others v. Sau Malatibai and others, AIR 2003 SC 267.