RUKMINI KUMARI Vs. RAM SHANKAR SAH

JUDGEMENT

(1.) These two appeals arise out of Title Suit No. 5 of 1958 filed by the plaintiffs (respondents Nos. 1 and 2 in the present two appeals) for declaration of their one-third share in the suit properties and for recovery of possession over the said one-third share after partition by metes and bounds, There was also a claim for mesne profits both past and future. The suit was decreed by the learned Additional Subordinate Judge who ordered preparation of the preliminary decree. Against this order of the learned Additional Subordinate Judge, two title appeals were preferred before the District Judge, one by the principal defendants Nos. 1 and 2 (appellants in Second Appeal No. 74 of 1970) and the other by the pro forma defendant Rukmini Kumari (appellant in Second Appeal No. 73 of 1970). The appeals were heard by the learned Additional District Judge. He allowed the appeal of Rukmini Kumari by excluding the property (purchased by her from partition and dismissed the other appeal with the modification that defendants Nos. 1 and 2 were entitled to the plots which they reclaimed by making improvements therein. On receipt of the records by the trial Court, an Amin Commissioner was appointed to allot the shares to the different parties. On submission of his report objections were filed to it by the appellants of the present two appeals. The objections were rejected by the learned Subordinate Judge by his order dated the 23rd December. 1966, and the final decree was ordered to be prepared in accordance with the report of the Amin Commissioner, The appellants in the present two appeals before me did not wait for the preparation of the final decree and filed two appeals before the District Judge. Title Appeal No. 4 of 1967 was preferred by the appellant in Second Appeal No 74 of 1970 and Title Appeal No. 5 of 1967 was preferred by the sole appellant in Second Appeal No. 73 of 1970. In both the title appeals the Sarishtedar reported that the appeals had been filed against the order dated the 23rd December. 1966, confirming the report of the Amin Commissioner and not against the final decree which was yet to be prepared. On this point, the District Judge heard the lawyer for the appellants on the 17th March 1967 and, relying upon the decisions in AIR 1945 Pat 482 and ILR (1957) Bom 175 = (AIR 1957 Bom 59) admitted the appeals subject to the objection, if any. by the other side at the time of hearing of the appeals. The appellants prayed for the stay of preparation and signing of the final decree and by order No. 14 dated the 1st May. 1967, passed in Title Appeal No. 4 of 1967. the District Judge stayed further proceedings in regard to preparation of the final decree subject to the appellants' furnishing security, if any. as demanded by the trial Court. The learned Additional District Judge who heard the two appeals dismissed them with the modification in regard to allotment of plot No. 406. Hence the present two second appeals, one (Second Appeal No. 73 of 1970) by Rukmini Kumari, defendant No. 5 and the other (Second Appeal No. 74 of 1970) by defendants Nos. 1 and 2.

(2.) In this Court also an application was made in Second Appeal No. 74 of 1970 for staying the preparation of the final decree and this prayer was allowed by the Court by Order No. 13, dated the 16th December. 1972. At the time of hearing of the appeals. Mr. J. C. Sinha, counsel for the respondents, raised a preliminary objection that in spite of the clear position that the appeals before the lower appellate Court were filed prior to the preparation of the final decree, the learned Additional District Judge was under the wrong impression that he was dealing with an appeal from a final decree. This assumption of the Additional District Judge was clearly wrong and against the true state of affairs. He has, therefore, submitted that the two appeals before the Court of Appeal below and the two second appeals before this Court cannot be held to be maintainable in law as not having been preferred against a final decree.

(3.) Mr. J. M. Ghose, counsel for the appellants, did not challenge the fact that the two appeals before the District Judge were filed before the final decree was prepared but submitted that on that account it cannot be said that the appeals filed in that Court were not maintainable. He submitted that to some extent at least the fault was of the Court of Appeal below also. If the appeals were not competent, the Court ought not to have heard and decided them. He also submitted that many a times appeals were entertained without a copy of the decree.