The main legal point established in the judgment is that an application for correction of shares by preparing another preliminary decree is not maintainable if the preliminary decree has become final between the parties.

Justice Rajiv Sharma, Judge (oral).

This petition is instituted against the order dated 19.1.2013 rendered by the District Judge, Sirmaur District at Nahan in Civil Misc. Appeal No.18-CMA/14 of 2011.

2. Pertinent facts necessary for the adjudication of this petition are that petitioners-plaintiffs (hereinafter referred to as the “plaintiffs” for convenience sake) have instituted a Civil Suit No.18/1 of 1993 in the court of Sub Judge 1st Class, Nahan for partition of immovable property detailed in the plaint. Preliminary decree was passed on 9.11.1999. Plaintiffs filed an application under order 26 rule 13 read with section 151 of the Code of Civil Procedure for appointment of Local Commissioner in the court of Senior Sub Judge, Nahan. Senior Sub Judge, Nahan vide order dated 26.7.2001 appointed Sh. D.R. Verma, Tehsildar, Nahan and Sh. R.S. Chandel as Local Commissioners for suggesting mode of partition. Report was submitted by the Local Commissioners. No objections were filed against the report of the Local Commissioners. Senior Sub Judge accepted the report vide order dated 13.9.2004 and passed final decree of partition. The plaintiffs filed an appeal before the Additional District Judge, Nahan against the order dated 13.9.2004. Learned Additional District Judge allowed the appeal vide judgment dated 15.9.2008 and remanded the matter back on the ground that the Local Commissioners have not carried out the partition in accordance with preliminary decree passed by the trial court.

3. Thereafter, plaintiffs preferred an application under order 20 rule 18 of the Code of Civil Procedure for correction of the shares by preparing another preliminary decree. The application was contested by the respondents-defendants (hereinafter referred to as the “defendants” for convenience sake). According to the defendants, since the plaintiffs have not preferred any appeal against the preliminary decree, they were precluded from disputing the correctness of the shares. According to them, the parties were required to be governed by the preliminary decree dated 9.11.1999. Plaintiffs filed rejoinder to the reply filed by the defendants. Civil Judge (Senior Division) dismissed the application preferred by the plaintiffs under order 20 rule 18 of the Code of Civil Procedure on 28.6.2011. The Collector, Sirmaur District, at Nahan was directed to suggest the mode of partition through its officials strictly in accordance with preliminary decree dated 9.11.1999 in the presence of parties and counsel. The reference was ordered to be made to the Collector and the report was called for 27.7.2011. The plaintiffs filed an appeal before the District Judge, Sirmaur District at Nahan. He dismissed the same on 19.1.2013. Hence, the present petition.

4. What emerges from the facts enumerated hereinabove is that preliminary decree was passed on 9.11.1999. It was not assailed. The final decree was passed on 13.9.2004. The plaintiffs preferred an appeal before the Additional District Judge, Sirmaur District at Nahan. He remanded the matter back to the trial court on 15.9.2008 for passing final decree in accordance with the preliminary decree dated 9.11.1999 after considering the objections filed by the defendants.

5. Mr. Bimal Gupta has vehemently argued that the shares as per preliminary decree have been wrongly allotted on the basis of compromise. According to him, the preliminary decree requires rectification of errors of area so that the correct mode of partition could be prepared.

6. Mr. Karan Singh Kanwar has argued that the preliminary decree was passed after complete trial on merits. He has also argued that no further development has taken place necessitating framing of fresh preliminary decree.

7. I have heard the learned counsel for the parties and have perused the pleadings carefully.

8. The preliminary decree dated 9.11.1999 was passed by the trial court on merits after complete trial. It was not based on the compromise. The Local Commissio