Mukhraj Dubey vs Umeshwar Narain Singh (09/27/05/2020)

IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.C. No. 5103 of 2013
—-
Mukhraj Dubey, S/o late Ramjeet Dubey, R/o Vill & P.O. Purubdiha, P.S. Chainpur,
District-Palamau. …..Petitioner
Versus
1. Umeshwar Narain Singh, S/o late Babu Janakdhari Singh.
2. Bupendra Narain Singh, S/o late Babu Keshri Prasad Singh.
3. Rajindra Prasad Singh @ Rajindra Singh, S/o late Sureshwar Prasad Singh.
All residents of village, P.O.Babandi, P.S. Chainpur, District-Palamau.
…..Respondents
—-
Coram: HON’BLE MR JUSTICE RONGON MUKHOPADHYAY
———-
For the Petitioner : Mr. Rajiv Ranjan Tiwary, Advocate
For the Respondents : Mr. T.N. Jha, Advocate
—–
DATE: 09/27/05/2020

Heard the parties.
2. In this writ application, the petitioner has prayed for quashing of the order dated
17.07.2013, passed by the learned Senior Civil Judge-I, Palamau in Partition Suit No. 04
of 1951, whereby and whereunder learned court below had given a direction for
recasting of the amended preliminary decree.
3. A partition suit was filed by the plaintiffs (respondents herein) in Partition Suit No.
4 of 1951 for partition of Milkiyat interest of Mokrir-Dar-Mokrir lands after separating
them from the unburden Milkiyat interest and if necessary to partition Dar Milkiyat
interest.
4. The case of the plaintiffs was that in Mouza Kakatua, P.S. Daltonganj, there were
three kinds of distinct interest such as Milkiyat, Milkiyat Mokrari and Dar Mokrari. Out of
the Milkiyat interest, 10 Annas 9 Pai was unburdened while remaining 5 Annas 3 Pai
was burdened with Mokrari interest; out of which, 1 Anna, 6 Pai was burdened with Dar
Mokrir interest. The plaintiffs had 8 Anna 1 Pai 10 Karant Milkiyat, 2 Annas 7 Pai, 10
Karant Mokrari and 1 Anna 6 Pai as Dar Mokrir interest from before the last survey and
these interests were recorded in the Khewat also. The first set of defendant held both
Milkiyat and Milkiyat interest while the second set of defendant had only Milkiyat interest
burdened with the said Mokrir Dar Mokrir. The third set of defendant held 1 Anna 6 Pai
of the said Mokrir Dar Mokrir interest, which was burdened with the plaintiffs Dar Mokrir
interest. Although these interests were recorded in last survey, yet parties had been
holding the land without actual partition by metes and bounds and without specification
of three interests. In 1940, some of the defendants had filed Partition Suit No. 1983/40
in the court of Munsif, Palamau for partition of Mokrir Dar Mokrir interest only leaving
out Mokrir Dar Mokrir from the set and on their plea it was ordered that only inoperated
Milkiyat would be partitioned and Mokrir Dar were not to be bound by the said decree. It
has also been stated that some of the Mokrir Dar Mokrir lands were also partitioned in
spite of the objection to that effect which caused confusion in the interest of the parties
and as such the suit was filed. All the defendants had appeared and contested the suit
by filing separate written statements.
5. The suit was finally decreed and a preliminary decree was prepared in the year
1954. The plaintiffs had subsequently filed applications for amending the preliminary
decree and the decree was amended vide orders dated 23.11.1964 and 20.3.1971. It is
the case of the petitioner that the amendment was never carried out and the amended
final decree was never prepared. A final decree was prepared on 31.5.1978, which was
sealed and signed on 5.8.1978 and since the same contained various anomalies the
defendants had challenged the same vide Partition Appeal No. 72 /78. The said appeal
was allowed and the final decree was set aside vide judgment dated 10.2.2004.
6. The respondents herein had preferred Second Appeal No. 13 /05, which was
disposed of directing the trial court to prepare a final decree in terms of the amended
preliminary decree. The plaintiffs-respondents herein had filed an application for
amendment of the plaint since the lands mentioned in the plaint were not included in the
preliminary decree and accordingly the same be inserted in the preliminary decree. The
learned court below had passed an order on 15.12.04 to the effect that since the
preliminary decree had already been amended as per orders dated 23.11.1964 and
20.3.1971 no further order need be passed in this regard. After the order dated 26.8.09
was passed in Second Appeal No. 13/05, the plaintiffs/respondents had filed an
application praying for calling for the original record of Partition Suit No. 4/51 and then
the final decree be prepared. Vide impugned order dated 17.3.2013, the learned court
below has come to a conclusion that no amended preliminary decree is available on
record and there is nothing on record to show that the amendment in the preliminary
decree has ever been carried out and therefore the office was directed to recast the
amended preliminary decree. The petitioner had filed an application for grant of certified
copy of the preliminary decree as well as the amended preliminary decree but even the
preliminary decree is not available and as such it has been stated that recasting of the
preliminary decree does not arise.
7. Mr. R.R. Tiwary, learned counsel for the petitioner, has stated that the impugned
order is illegal and liable to be quashed since there was no direction by the High Court
in Second Appeal No. 13/05 for recasting of the amended preliminary decree and it was
only confined to preparation of final decree. He has stated that the order of the learned
court below dated 17.7.2013 amounts to preparation of fresh amended preliminary
decree. It has been contended that when there is no amended preliminary decree on
record, no final decree could have been prepared.
8. Mr. T.N. Jha, learned counsel appearing on behalf of the respondents, has stated
that after passing of the judgement dated 31.8.54 in Partition Suit No. 4/51, a
preliminary decree was prepared. He has stated that the proprietary interest in the
preliminary decree vested in the State of Bihar by virtue of Bihar Land Reforms Act
1950. However, the lands, which were under khas possession of the parties were
converted as raiyati under section 6 of the Act. Learned counsel further submits that as
per section 4(ee) of the Act, the State of Bihar was required to be made a party in the
suit. Further after passing the judgment and preliminary decree, several parties either
died and several who were minors had attained majority. In such circumstances, vide
orders dated 23.11.64 and 20.3.71, the amendment was allowed in the plaint and
-3-
preliminary decree was prepared with addition of new schedule of land. Learned
counsel further adds that some pages were lost and the process of recasting the
preliminary decree is going on on the basis of amended plaint.
9. The preliminary decree was prepared in terms of the judgement passed in
Partition Suit No. 4/51. The plaint as well as the preliminary decree were twice amended
on 23.11.64 and 21.4.71. The preliminary decree was never challenged by the
defendant/petitioner and the same had become final. On the ground of technicalities,
the final decree which was prepared was challenged by the defendants in Partition
Appeal No. 72/78 and the final decree was set aside as the same was not in
consonance with the preliminary decree. In the appeal preferred by the plaintiffs (S.A.
No. 13/05), an order was passed on 26.8.09, in which the trial court was directed to
prepare final decree in terms of the amended preliminary decree. The petitioner
basically is trying to reap the benefits of the amended preliminary decree being missing.
When the petitioner/defendant had never challenged the preliminary decree or the
amendment, he at this stage cannot be permitted to thwart attempts at
preparation/recasting of amended preliminary decree. This court in S.A. No. 13/05 had
clearly given a direction to prepare final decree in terms of the amended preliminary
decree and since the amended preliminary decree is the foundation of preparation of
final decree and since the amended preliminary decree is not available on record the
learned court below was justified in directing the office to recast the amended
preliminary decree. In such view of the matter, therefore, I do not find any reason to
interfere in the order dated 17.7.2013 passed by the learned Senior Civil Judge-I,
Palamau in Partition Suit No. 4 of 1951 and accordingly having found no merit in this
writ application, the same is hereby dismissed.

(Rongon Mukhopadhyay, J)