SURYA KANT JHA Vs. BRAHMDEO JHA AND OTHERS

JUDGEMENT

(1.) This is an application by plaintiff no. 2 of Title suit no. 91/10 of 1971/75 of the Court of the 1st Additional Subordinate Judge, Begusarai. The impugned order is that dated 31.8.1979. The facts are very short and simple. There are six plaintiffs. Plaintiff no. 1, being the father and the remaining five plaintiffs being the sons, plaintiff no. 2, as has already been stated above, is the petitioner and the remaining plaintiffs are opposite 1st party. We are not concerned in this case with the defendants because the dispute is amongst the plaintiffs inter se.

(2.) A suit for partition was instituted in which all the six plaintiffs claimed a joint takhta to be carved out in their favour on determination of their due share in the joint family properties. A preliminary decree was duly passed. While the proceedings for preparation of the final decree were going on the opposite 1st party filed an application that a separate takhta be carved out in the name of the petitioner, plaintiff no. 2, for some reason or the other. This prayer was allowed by the court below even without hearing the petitioner.

(3.) The order is palpably without jurisdiction. It is a well settled principle of law that the final decree of the executing court cannot go beyond the preliminary decree. All the six plaintiffs had claimed a joint share in the properties in dispute and a joint preliminary decree was passed in their favour at the stage of final decree but it could not lie in the mouth of opposite 1st party to say that a separate takhta be carved out for the petitioner.