BHIKHARI RAI Vs. GIRDHARI KUER

JUDGEMENT

(1.) Title Suit No. 18 of 1964 was filed by original opposite party Nos. 1 to 7 (Plaintiffs), whose names were deleted at the risk of the petitioners vide order dated 3 -11 -1987. The said order appears to have been passed after submission of a report by the office that opposite party Nos. 1, 4 and 6 are dead and that steps for substitution of their heirs be taken. The said suit was decreed by judgment and preliminary decree dated 25 -8 -1973 and the plaintiffs -Opp. Party - -'first party were allowed 1/2 share in the entire properties and the petitioners and the opposite party -second party were allowed the remaining 1/2. The Opp. party -first party took steps for preparation of the final decree by filing an application on 9 -7 -1985 in the court below that First Appeal No. 58 of 1973 preferred in this Court against the judgment and preliminary decree dated 25 -8 -1973 has already been dismissed on 4 -12 -1978. It appears that a petition dated 10 -9 -1985 was also filed on behalf of the defendants Dhyan Dhari Kuer, Ram Jatan Rat (opposite party No. 9), Chandrama Rai (Opposite party No. 11), Shyam Sunder Devi (Opposite party No. 13) and Kaushalya Devi praying to carve out their 1/8 share. Another petition was also filed by other set of defendants on 30th September, 1585 for carving out their share. It appears that an -objection petition dated 4 -10 -1985 was also filed against the petition dated 10 -9 -1985 of the aforementioned defendants stating therein that in the judgment and decree only the share of the plaintiffs has been directed to be carved out and thus the shares inter se cannot be carved out unless decided by a competent court and thus the petition dated 10 -9 -1985 is fit to be rejected. The court below by the impugned order held that even though it is a fact that the share of the defendants inter se has not been directed to be carved out but since the share has been declared in favour of the plaintiff, the remaining land shall certainly go to the shares of the defendants and thus there cannot be any difficulty in carving out the shares of the defendants inter se by appointing a Pleader Commissioner as well as the 1/2 share of the plaintiffs and proceeded to reject the objection petition dated 4 -10 -1985 of the petitioners and directed the parties to deposit necessary fee for appointing a Pleader Commissioner.

(2.) The petitioners are aggrieved by the rejection of their objection petition dated 4 -10 -1985.

(3.) Learned Counsel for the petitioners submits a very short point, namely, that no direction having been made in the judgment and preliminary decree for partition inter se between the defendanss, the court below was not correct in directing inter se partition through a Pleader Commissioner by the impugned order. He however, failed to cite any judgment or any provision of law to support his submission.