JUDGEMENT AND ORDER (CAV)

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1 IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) RFA 08/ Manoj Lala, son of Late Mohanlal Lala, R/o. Central Road, Silchar, PO & PS- Silcahr, District- Cachar, Silchar and another...appellants -Versus- 1. Motilal Lala, son of Late Mohanlal Lala, R/o. Central Road, Silchar Town, PO & PS- Silcahr, District- Cachar, Assam and others..respondents For the Appellant : Mr. N.C. Das, Sr. Adv. Mr. A. Das, Adv. For the Respondents : Mr. D. Mazumdar, Sr. Adv. Mr. D. Chakraborty, Adv. Mr. A.B. Choudhury, Sr. Adv. Ms. P. Chakraborty, Adv BEFORE THE HON BLE MR. JUSTICE SUMAN SHYAM Date of hearing : 15/12/2016 Date of Judgement : 11/01/2017 JUDGEMENT AND ORDER (CAV) Heard Mr. N. C. Das, learned senior counsel assisted by Mr. A. Das, learned counsel appearing for the appellant. Also heard Mr. D. Mazumdar, learned senior counsel assisted by Mr. D. Chakraborty, learned counsel representing respondent no. 4 as RFA 8/2013- CAV Page 1 of 12

2 well as Mr. A.B. Choudhury, learned senior counsel and Ms. P. Chakraborty, learned counsel representing respondent nos. 9 and This appeal has been preferred against the purported final decree dated 19/11/2009 passed by the learned Civil Judge No.1, Cachar, Silchar in connection with Title Suit No. 23/ This litigation has a chequered history and for the purpose of proper appreciation of the legal issues involved herein, a brief narration of the factual backdrop is deemed necessary. 4. The respondent nos. 18 and 19 herein had earlier instituted Title Suit No. 23/1987 in the Court of Civil Judge No.1, Cachar, Silchar, seeking a decree of partition and declaration of separate possession in respect of their ancestral properties. The present appellants were impleaded as defendant nos. 3 and 4 respectively in the said Title Suit. On 24/12/2001, the learned Civil Judge, No.1, Cachar, had passed a preliminary decree partitioning the properties belonging to the plaintiffs and defendants in the suit. The respondent no.1 herein had preferred RFA No. 59/2002 challenging the preliminary decree dated 24/12/2001 but later withdrew the appeal on 27/06/2003. Similarly, the respondent no. 3 had also preferred an appeal against the preliminary decree dated 24/12/2001 before this Court, numbered and registered as RFA 7/2003, which was dismissed by the Division Bench of this Court by the judgement and order dated 02/07/2008. An SLP preferred against the judgement and order dated 02/07/2008 by the respondent no. 3 was also dismissed by the Hon ble Supreme Court by order dated 29/09/2008. Except the respondent no. 3, none of the parties to the proceeding had challenged the preliminary decree dated 24/12/2001 as a result of, on dismissal of the SLP, the same had attained finality in the eye of law. As such, steps were initiated by and on behalf of the decree holders for preparation of RFA 8/2013- CAV Page 2 of 12

3 Saham and for giving effect to the preliminary decree by making necessary partition of the properties as per the mandate of the decree dated 24/12/ The respondent no. 3 had earlier filed an application before the Collector/Deputy Commissioner, Cachar, Silchar, inter-alia, contending that the Saham (allotment paper) prepared by the Assistant Settlement Officer (ASO) was not in accordance with the preliminary decree dated 24/12/2001 and hence, a prayer was made for cancellation of the report submitted by the ASO. However, the application filed by the respondent no. 3, which was numbered and registered as Misc. Case No. 1/2004, was not pursued by her, as a result of which the said proceeding had lapsed. 6. It appears from the records that one Shri Amaresh Singh had purchased the properties falling in the share of plaintiff no. 2 i.e. Bhanumati Lala. Upon such purchase, Amaresh Singh along with the plaintiffs in Title Suit No. 23/1987 had filed an application before the Court of Civil Judge No.1, Cachar, making a prayer for passing a final decree as per the rights of the parties and the allotment made under the preliminary decree dated 24/12/2001. Since the attempt for settlement of the issues between the parties through the process of mediation initiated earlier as per the order dated 09/04/2009 passed by the Division Bench of this High Court in connection with MC No. 2425/2005 had also ended in a failure, hence, a prayer was made on behalf of the plaintiffs for drawing up a final decree by filing petition no.89/ Taking note of the prayer made in petition no. 89/2010, the learned Civil Judge No.1 had passed an order dated 28/10/2009 in connection with Title Suit No. 23/1987 passing a final decree in respect of the rights and properties as per Saham so prepared by the Collector. On the basis of the order dated 28/10/2009, a final decree dated 28/10/2009 was also prepared giving effect to the preliminary decree dated 24/12/2001 in part, thereby, affecting partition of the immovable properties situated at RFA 8/2013- CAV Page 3 of 12

4 Silchar town in conformity with the allotment made by the Collector, Cachar as per the Saham. 8. Being aggrieved by the judgement and order dated 28/10/2009 passed by the learned Civil Judge No.1, Cachar, Silchar in Title Suit No. 23/1987 as well as the final decree prepared thereunder, the present appellants had earlier approached this Court by filing RFA No. 4/1020. By the judgement and order dated 22/03/2012, a Division Bench of this Court had dismissed the said appeal filed by the present appellants. 9. Aggrieved by the judgement and order dated 22/03/2012, the appellants had approached the Hon ble Supreme court by filing SLP(C) No of When the matter came up for consideration before the Supreme Court, the appellants sought permission to withdraw the SLP with liberty to approach the High Court against the final decree. The prayer made by the appellants was allowed by the Supreme Court by order dated 30/07/2012. Accordingly, the appellants have preferred the instant appeal before this Court in terms of the leave granted by the Apex Court by order dated 30/07/2012 along with an application for condonation of delay. 10. Mr. Das, learned senior counsel appearing for the appellants submits that his clients are not aggrieved by the preliminary decree dated 24/12/2001 passed by the learned Civil Judge No.1, Cachar, Silchar but are challenging the final decree dated 19/11/2009, inter-alia, on the ground that the final decree is not in conformity with the preliminary decree dated 24/12/2001. Mr. Das further submits that the Saham prepared under the directions of the learned Civil Judge No.1, Cachar, during the pendency of the MC No. 1/2004 preferred by the respondent no. 3 is wholly illegal and has rendered the entire process as null and void. He submits that the Court below ought to have permitted the Collector to take note of the grievances of all the parties before affecting the partition of the immovable properties. RFA 8/2013- CAV Page 4 of 12

5 11. By referring to a decision of the Hon ble Supreme Court rendered in the case of Bikoba Deora Gaikwad and others Vs. Hirabai Marutirao Ghorgare and others reported in (2008) 8 SCC 198 as well as Muthangi Ayyanna Vs. Muthangi Jaggarao and others reported in (1977) 1 SCC 241, Mr. Das submits that the process initiated under Section 54 of the CPC is ministerial function of the Court and if there is any discrepancy between the preliminary decree and the final decree prepared in terms thereof, than in that event, the appeal against the final decree shall be maintainable in the eye of law. 12. By relying on another the decision of the Supreme Court in the case of Shankar Balwant Lokhande (Dead) by LRs Vs. Chandrakant Shankar Lokhande and another reported in AIR 1995 SC 1211, Mr. Das submits that till such time the final decree determining the rights of the parties by metes and bounds is drawn up and is engrossed on stamped papers, no executable decree can be said to have been prepared. 13. It is also the specific case of the appellants that ever since Amaresh Singh has purchased the share of the plaintiff no. 2 in the ancestral property of the appellants, all the legal proceedings have been conducted by him in the name of the plaintiffs and but for the induction of an outsider in the form of Amaresh Singh, the contentious issues arising by and between the parties would have been amicably resolved long back. 14. Mr. Mazumdar, the learned senior counsel appearing for the respondent no. 4, on the other hand, raises strong objection as regards the maintainability of the appeal on the ground that there is no discrepancy between the final decree and the preliminary decree as has been projected by the appellants. The learned senior counsel submits that the appellants had never raised any objection as regards the preliminary decree nor had they filed any objection against the Saham and the report of the ASO before the Collector. That apart, the appeal in the form of RFA No. 4/2010 RFA 8/2013- CAV Page 5 of 12

6 preferred by the appellants against the order dated 28/10/2009 and the final decree prepared thereunder having been dismissed by the Division Bench of this Court by a detail judgement and order, the appellants cannot now be permitted to agitate the same issue again. Mr. Mazumdar submits that the final decree in this case had been prepared on 28/10/2009 itself which was put to challenge in RFA 4/ By referring to the records of the case, the learned senior counsel further submits that there is no final decree dated 19/11/2009 as alleged by the appellants but the date 19/11/2009 has been merely indicated at the bottom of the final decree 28/10/2009 by way of an endorsement made by the counsel for the plaintiffs putting his signature and the date in respect thereof, certifying that he had seen the decree. 16. The learned counsels appearing for the other respondents have adopted the arguments advanced by Mr. Mazuimdar and have strongly objected to the maintainability of the appeal. 17. I have considered the submissions advanced by the learned counsel for the parties and have also carefully gone through the materials available on record. 18. It appears that in terms of the preliminary decree dated 24/12/2001, the learned Civil Judge No.1, Cachar had earlier directed the ASO to prepare a Saham and to submit a report in respect thereof. It further appears from the record that during the pendency of the aforesaid proceeding, RFA No. 7/2003 was preferred by the respondent no. 3 before this Court and by an interim order dated 25/11/2003, this court had appointed the Deputy Commissioner, Cachar as the Commissioner with a direction to proceed with the task of survey and demarcation in pursuance of the preliminary decree dated 24/12/2001 for the purpose of allotment of the shares of the parties but had restrained the Commissioner to give effect to such allotment without the leave of this Court. In terms of the order dated 25/11/2003 passed by this Court, the Commissioner so appointed, had proceeded to prepare the allotment and by RFA 8/2013- CAV Page 6 of 12

7 the order dated 08/12/2003, the Court of the Civil Judge Senior Division No.1 had directed the appointed Commissioner to prepare a Saham in respect of the immovable properties involved in the Title Suit in accordance with the directions contained in the order dated 25/11/2003 passed by this Court. Accordingly, the Deputy Commissioner, Cachar had notified the respective parties and thereafter, caused demarcation of the immovable properties in presence of the parties, where-after the papers for allotment of the shares (Saham) was prepared. 19. As noted above, RFA No. 7/2003 was eventually dismissed by the judgement and order dated 02/07/2008 passed by the Division Bench of this court. On dismissal of RFA No. 7/2003, the Civil Judge, Senior Division no.1 had passed the order dated 28/10/2009 in Title Suit No. 23/1987 directing preparation of the final decree. The operative part of the order dated 28/10/2009 is quoted herein below:- Now, on perusal of the case record it is found that the report of the final effect dtd , is furnished along with its paper vide No. CRS.32/08/214 revised vide No. SCCM/28/04/1004 dtd and it was kept with the record since the matter was referred to the Mediation Centre. As per observation made herein above it is found that the mediation is failed, therefore, there is no any impediment to proceed with the effect of final decree. It is found from the case record, the right of the parties and allotment so far as made in respect of immovable properties situated at Silchar Town have been fully determined as such, as there is no any impediment to pass the final decree as prayed for. Accordingly, I pass the order to prepare the final decree in respect of the right and properties submitted as per saham alongwith the final effect by the ld. Deputy Commissioner/Collector, which shall be part of the decree. Seen the requisition of the Hon ble Dist. Judge, Cachar, Silchar communicated vide No. R. No. 12/DJ dtd , call for record. Send the case record accordingly. Parties are directed to furnish requisite stamp. Draw up a final decree in part accordingly. RFA 8/2013- CAV Page 7 of 12

8 Fixing for necessary step. Sd/- Illegible Civil Judge No.1 Cachar, Silchar 20. It further appears from the record that in terms of the order dated 28/10/2009, a final decree was prepared on 28/10/2009 itself, which was engrossed on stamp papers, making partial allocation of the immovable properties under the preliminary decree. The operative part of the final decree is reproduced herein below. O R D E R The suit is finally decreed on content in terms of the Preliminary decree in-part of the immovable property situated at Silchar Town. And the allotment papers (SAHAM) submitted by the Collector, Cachar along with the final effect by the ld. Deputy Commissioner/Collector, Cachar, Silchar shall form part of the decree. Given under my hand and seal of this curt this the 28 th day of Oct/09. Sd/- Illegible Civil Judge No.1 Cachar, Silchar 21. On a careful scrutiny of the judgement and order dated 22/03/2012, it can be seen that the appellants had preferred RFA No. 4/2010 assailing the order dated 28/10/2009 as well as the final decree prepared thereunder but the said appeal was dismissed by a Division Bench of this Court by the judgement and order dated 22/03/2012. The observations made by the Division Bench in the judgement and order dated 22/03/2012 is reproduced herein below :- Unmistakably, the instant appeal is against the order dated directing preparation of the final decree. Though Mr Surana by drawing sustenance from the order dated passed in M.C. 370/2010 has endeavoured to project that the instant appeal is against the final decree, having regard to the said order, we are unable to lend our concurrence to this plea. By the order dated , this Court had only permitted the appellants to move the appeal by dispensing with RFA 8/2013- CAV Page 8 of 12

9 the requirement of annexing the certified copy of the final decree dated Thereby the present appeal in form and substance as preferred against the order dated , in our comprehension, by no means can get transformed into one against the final decree dated Significantly, the instant appeal though preferred under Section 96 of the Code, the order in impugnment cannot be construed in law to be a decree to permit the same. The order dated is not one enumerated under Order XLIII Rule 1 of the Code as well so as to maintain the instant appeal as one from an order as envisaged therein. The grounds taken in the memorandum of appeal also do not pose any impugnemnt to the final decree dated The present appeal, therefore, by no means can be accepted to be one against the final decree. 22. From a reading of the judgement and order dated 22/03/2012, it is evident that the categorical stand of the appellants before this court in RFA No 4 / 2010 was that the said appeal was preferred against the final decree prepared under the order dated , which contention was, however, rejected by the Division Bench on the ground indicated here-in-above. The learned Division Bench had proceeded to pass the judgment and order dated 22/03/2012 in RFA No 4 /2010 on an assumption that the final decree dated was not impugned in the appeal. However, on a meticulous examination of the record, I find that there is no final decree available on record which is dated 19/11/2009. On the contrary, a certified copy of the final decree dated 28/10/2009, engrossed in stamp papers, alone is available on record and the said final decree is not under challenge in the instant appeal. The learned senior counsel appearing on behalf of the appellants also could not draw the attention of this court to any final decree which was dated 19/11/ During the course of hearing of the appeal, the learned senior counsel appearing on behalf appellants had advanced submissions with reference to the final decree dated 28/10/2009. Therefore, it appears to this court that the projection made RFA 8/2013- CAV Page 9 of 12

10 in the memorandum of appeal regarding existence of final decree dated 19/11/2009 is incorrect and rather misleading. The submission of Mr. Mazumdar that no final decree was prepared on 19/11/2009 appears to be correct and hence, merits acceptance by this court. 24. The present proceeding arises out of Title Suit No 23/1987 whereby, the Trial Court had passed the preliminary decree dated 24/12/2001 partitioning the ancestral properties of the parties to the proceeding. As noticed above, the appellants counsel has categorically submitted that his clients are not aggrieved by the preliminary decree dated 24/12/2001. Section 97 of the Code of Civil Procedure debars a party from disputing the correctness of a final decree in any appeal when the party aggrieved by the preliminary decree does not appeal from such decree. However, in a case where there is material discrepancy between a preliminary decree and a final decree, the bar of section 97 of the CPC would not come into play and the party aggrieved would be entitled to assail the final decree on the ground that the same is not in conformity with the preliminary decree. 25. In the present case, although the appellants have urged that there is significant discrepancy between the preliminary decree dated 24/12/2001 and the final decree prepared thereunder, the learned counsel for the appellants could not point out any such discrepancy from the record. From a meticulous scrutiny of the final decree dated 28/10/2009, I do not find any discrepancy in the final decree with the preliminary decree dated 24/12/2001 in so far as the allotment of shares in the immovable properties located at the Silchar town is concerned. Since the final decree dated 28/10/2009 only deal with the immovable properties situated at Silchar, therefore, it is obvious that the same is only a partial decree which did not include the entire properties under partition. But the same cannot be termed as a discrepancy in the two decrees thereby warranting interference from this court. RFA 8/2013- CAV Page 10 of 12

11 26. The present appeal has been preferred on the strength of the leave granted by the Supreme Court by the order dated 30/07/2012. For ready reference, the order dated 30/07/2012 passed in SLP(C) No of 2012, is reproduced herein below :- Shri P.K. Goswami, learned senior counsel appearing for the petitioners seeks permission of this Court to withdraw the Special Leave Petitions with liberty to approach the High Court against the final decree proceedings along with an application for condonation. Permission sought for is granted. The Special Leave Petitions are disposed of as withdrawn. 27. From a plain reading of the order dated 30/07/2012 passed by the Apex Court, it is apparent that the appellants have been granted leave to prefer an appeal against the final decree prepared in connection preliminary decree dated passed in Title Suit No 23/1987. Therefore, a clear understanding as regard the true identity of final decree against which the leave to appeal has been granted will be necessary. Since the present appeal has been preferred against the final decree dated 19/11/2009 where as only the certified copy of the final decree dated 28/10/2009 is available on record, hence, a query was made by this court seeking clarification in the matter. However, the learned counsel for both the parties could not indicate with any degree of clarity and precision as to which final decree has been permitted to be appealed against by the order dated 30/07/ The aforesaid aspect of the matter assumes great significance for the following reasons. If the decree dated 28/10/2009 is treated as the final decree, then the present appeal would not be maintainable since the final decree dated 28/10/2009 is not under challenge in this proceeding. Moreover, the appellants having unsuccessfully challenged in RFA No 4 / 2010, the judgement and order dated 28/10/2009 directing preparation of final decree, a further challenge to the order dated 28/10/2009 in the RFA 8/2013- CAV Page 11 of 12

12 present appeal would also not be permissible in the eye of law. In the absence of any challenge to the order dated 28/10/2009, assailment of the final decree prepared thereunder may also not be sustainable. Since, there is no final decree dated 19/11/2009 available on record, the question of impugnment of the same in the present appeal also cannot not arise. 29. Form an analysis of the submissions made on behalf of the appellants, it appears to this court that in the garb of the present appeal, the appellants are making a veiled attempt to re-agitate the same issues raised in RFA No. 4/2010 which were conclusively decided by the order dated 22/03/2012 passed by the Division Bench. The entire thrust of arguments advances by the appellants counsel appears to be directed against the involvement of an outsider, viz. Amaresh Singh, who is stated to have purchased the share of plaintiff No.2. It appears that the basic objection of the appellants is not so much as regards either the preliminary decree or the final decree but pertaining to the purchase of the share of the plaintiff no.2 by Amaresh Singh. Even if that be the case, the appellants cannot be permitted to agitate such an issue in the instant appeal preferred in terms of the leave granted by the Hon ble Apex Court. 30. For the reasons stated here-in-above, I am of the considered opinion that there is no merit in this appeal and the same is accordingly dismissed. There would be no order as to costs. JUDGE Sukhamay RFA 8/2013- CAV Page 12 of 12

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