KHEM DATT Vs. PALKIA

JUDGEMENT

(1.) THIS appeal is directed against the judgment and decree passed by the learned District Judge, Solan Sessions Division, at Nahan, dated 5th Nov. 1981.

(2.) THE facts relevant to the case may be stated, Shri Palkia respondent No. 1 (hereinafter referred to as 'the plaintiff) filed a suit against the appellants (hereinafter referred to as 'the defendants') and pro forma respondent No. 2 for the possession of land in suit, by pre emption on the basis of his being a co sharer with pro forma respondent No. 2. It may be pointed out that the respondent No. 2 had sold the land in suit to the defendants. As such, respondent No. 2 was also impleaded as a pro forma defendant. The learned Senior Sub Judge, Nahan, dismissed the suit of the plaintiff on 29th' Oct. 1979, on the ground that since a partition had taken place between the plaintiff and the defendants, the status of the plaintiff as a co sharer stood extinguished. The plaintiff preferred an appeal in the Court of the learned District Judge who reversed the judgment of the trial court and passed a decree for possession in favour of the plaintiff, holding that the partition had not been legally effective since the instrument of partition had not been drawn.

(3.) THE only point which has been canvassed at the bar by Shri Chhabil Dass, learned counsel for the defendants, is that since the partition between the plaintiff and the defendants had been completed and the possession of their respective shares had been delivered to them, the plaintiff had lost his status as a co sharer with the defendants. It is further contended that the partition in fact had been completed but for the preparing of the instrument of partition. On the contrary, it is vehemently contended by Shri D. Gupta, learned counsel for the' plaintiff, that the partition cannot be legally effective unless an instrument of partition is drawn. The next contention of the learned counsel is that the possession as delivered to the parties is void inasmuch as according to the warrant of possession the same could be delivered on or before 30th June, 1977, and the execution of the warrant had to be reported by that date. The possession in fact had been delivered on 30th July, 1977. According to the learned counsel, even if the possession was then delivered, the same was bad in the eyes of law. It is also contended that the plaintiff on filing a revision petition before the Divisional Commissioner, Himachal Pradesh, obtained a stay order dated 16th August, 1977. Copy of the order placed on record (Ex. P. 3) reads as under :