Point of Law: Section 97 of Code of Civil Procedure reads as appeal from final decree where no appeal from preliminary decree.

JUDGMENT :

Satyen Vaidya, J.

By way of instant regular second appeal, judgment dated 28.08.2008 passed by learned Additional District Judge (Fast Track Court) Una in Civil Misc. Appeal No. 55/-2 RBT No. 1/06/02, affirming order dated 31.05.2002 passed by learned Senior Sub Judge, Una, in Case No. 20/88 has been assailed.

2. In Civil Suit No. 150 of 1984 filed by the respondents herein against the appellants, learned Senior Sub Judge, Una, had passed a preliminary decree for partition vide judgment and decree dated 06.01.1988. The respective shares of the parties were declared.

3. The respondents filed an application for drawing final decree before the learned Senior Sub Judge, Una, which was registered as Case No. 20 of 1988. A Local Commissioner was appointed, who recommended partition by way of a report submitted to the Court of learned Senior Sub Judge, Una. The appellants preferred objections to the report of Local Commissioner on the ground that the proposed partition was inequitable on account of inequities with respect to the quantity and quality of land proposed to be given to the shares of the appellants.

4. Learned Senior Sub Judge, Una, dismissed the objections of appellants vide order dated 31.05.2002. The report of Local Commissioner dated 15.04.2000 was affirmed and a final decree was ordered to be drawn in terms thereof.

5. The appellants assailed the order dated 31.05.2002 passed by learned Senior Sub Judge, Una, in Case No. 20 of 1988 in appeal before the learned Additional District Judge, Una. The first appeal of the appellants was dismissed vide impugned judgment. Hence this appeal.

6. The instant appeal has been admitted on the following substantial questions of law on 27.08.2009:-

1. Whether the final partition ordered by the Courts below is in accordance with the settled principle of law for effecting partition among the co-sharers?

2. Whether the final decree passed by trial Court was appealable before the 1st Appellate Court?

7. I have heard Mr. N.K. Thakur, learned Senior Counsel for the appellants and Mr. Atharav Sharma, Advocate, for the respondents and have also gone through the entire record carefully.

8. As regards the maintainability of appeal before the First Appellate Court, learned counsel for the appellants has submitted that the same was maintainable. On the other hand, learned counsel for the respondents has contested the proposition on the strength of Section 97 of the Code of Civil Procedure.

9. Section 97 of the Code of Civil Procedure reads as under:-

“97. Appeal from final decree where no appeal from preliminary decree.-Where any party aggrieved by a preliminary decree passed after the commencement of this Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from final decree.”

10. Learned Senior Sub Judge, Una, vide order dated 31.05.2002 passed in Case No. 20 of 1988 had directed to draw final decree after rejecting objections of the appellants to the report of Local Commissioner. The final Decree was ordered to be drawn on the basis of Local Commissioner's report. Thus, the appellants had every right to assail the final decree by filing an appeal before the First Appellate Court. Section 97 of the Code of Civil Procedure only precludes the aggrieved party from disputing the correctness of the preliminary decree in an appeal preferred against the final decree, in case no appeal had been filed against the preliminary decree. In the facts of the case also, no appeal had been preferred by the appellants against the preliminary decree, but such fact is not sufficient to preclude the appellants from filing an appeal against the final decree passed by the learned trial Court. Record reveals that the appellants had filed the appeal before the First Appellate Court only assailing the impugned order dated 31.05.2002 passed by learned trial Court in Case No. 20 of 1988 in so far as it related to the rejection of their objectio