The main legal point established is that multiple preliminary decrees can be passed in a partition suit, and properties left out from the original suit can be included in the final decree proceedings.

A.V. CHANDRASHEKARA, J.

1. The present petition is filed under Article 227 of Constitution of India challenging the order passed by the learned Civil Judge and JMFC, Belur on I.A. 5 filed under Order 6 Rule 17 of CPC in FDP 3/2004, petition filed under Order 20 Rule 18 of CPC seeking final decree on the basis of a preliminary decree passed in a partition suit bearing O.S. 187/1997. The said application filed by the petitioner-plaintiff under Order 6 Rule 17 of CPC has been allowed and permission is accorded to bring one more property in schedule appended to the plaint in a petition filed in FDP 3/2004.

2. The said application under Order 6 Rule 17 of CPC had been filed by the plaintiff Smt. Lalitha, respondent No. 1 herein with a request to include 3.30 acres of agricultural land in Sy. No. 128 of Madhagatta Village, Belur Taluk, Hassan District, since she had left out the land to be included to the schedule appended to the O.S. 187/1997 filed by her. According to her, this 3.30 acres of land in Sy. No. 128 of Madhagatta Village, Belur Taluk, Hassan District belonged to her father and she was not aware of same when suit was filed and therefore she had requested the court to include the same in the final decree proceedings and to grant her share in respect of this property also on the lines of award granted in O.S. 187/1997.

3. First respondent herein alone contested the application filed under Order 6 Rule 17 of CPC. Respondent No. 1 who was defendant No. 1 in the O.S. 187/1997 chose to file objections to the said application filed under Order 6 Rule 17 of CPC. She has admitted that property measuring 3.30 acres in Sy. No. 128 of Madhagatta Village, Belur Taluk, Hassan District belonged to her father and that it was his personal property and that he has given this property in her favour and therefore she is the absolute owner of the land in Sy. No. 128 measuring 3.30 acres. It is her specific stand that in the objections filed before the FDP Court that there cannot be any inclusion of this property by way of amendment as the same had not been included in the schedule appended to the plaint in O.S. 187/1997. According to her the property sought to be included in the petition filed in FDP 3/2004 does not have any connection with the properties in respect of which preliminary decree has already been passed in O.S. 187/1997. Hence, she has requested the Court to dismiss the said application.

4. After hearing the arguments from the learned counsel for the parties and placing reliance of the decision of the Hon'ble Apex Court in the case of Phoolchand and Another Vs. Gopal Lal, AIR 1967 SC 1470 : (1967) 3 SCR 153, the learned Judge of the FDP has allowed the said application and has permitted the petitioner therein, who is respondent No. 1 herein to include one property to Sy. No. 128 in the schedule appended to the final decree proceedings. According to the learned Judge, any number of preliminary decrees could be drawn in a suit for partition so long as final decree is not passed and is not engrossed on requisite stamp paper. It is this order, which is called in question in the present petition.

5. Both the learned counsel appearing for the parties have submitted their arguments at length and with their consent, the matter is taken up for final hearing.

6. After hearing the learned counsel for the parties, the points that arise for my consideration are as follows:

(1) Whether the Court which has passed the preliminary decree in a suit for partition can pass any number of preliminary decrees?

(2) Whether the property or properties could be added to the schedule of the final decree proceedings which had not been the subject matter of the suit filed for partition and separate possession?

(3) Whether any interference is called for by this Court in terms of supervisory jurisdiction under Article 227 of Constitution of India, if so to what extent?

REASONS

7. Point No. (1): In a suit for partition or separation of a shares, court at the firs