KANHAI MAHTO Vs. DOMAN MAHTO

JUDGEMENT

(1.) The petitioner who was plaintiff no.2 in Partition Suit No.16 of 1978 is aggrieved of order dated 19.03.2009 passed by the executing court.

(2.) Plea taken by the petitioner is that the executing court has a accepted report of Amin Commissioner which in essence modifies the decree and judgment passed in Partition Appeal No.22 of 1992.

(3.) Partition Suit No.16 of 1978 was instituted for a preliminary decree for partition to the extent of 1/3rd share for the plaintiffs in the suit properties. The suit was dismissed, against which Title Appeal No. 04 of 1981 was filed which was allowed vide judgment dated 09.08.1982. Finally the suit was decreed and the decree was sealed and signed on 25.05.1992. Against the final decree the defendant no.9 who is a subsequent purchaser of a part of the suit lands preferred Partition Appeal No.22 of 1992. In the appeal three issues were framed; one of the issues was whether Amin Commissioner's report was in conformity with the direction of the appellate court passed in Title Appeal No.04 of 1981. Stand of the defendant no.9 is that he is entitled to retain possession of the lands comprised under sale-deeds dated 16.07.1957 and 05.03.1958. The appellate court in its judgment dated 18.07.1998 has observed that the appellant can be allotted a separate takhta of lands which were in his possession. After the decision in Title Appeal No.22 of 1992 an Amin Commissioner was appointed who gave a report on 21.05.2003, however, he again allotted different lands some of which were not in possession of defendant no.9. Finding this report not in conformity with the order passed by the appellate court it was rejected by the executing court vide order dated 17.12.2005 and another Amin Commissioner was appointed to draw final decree by allotting separate takhta to the parties.