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2014 Supreme(J&K) 428
JAMMU & KASHMIR HIGH COURT AT SRINAGAR
Hasnain Massodi, Ali Mohd. Magrey, JJ.
Aisha - Appellant
Versus
Saleema Bano and Ors. - Resopndent
LPA No. 345 of 2006 and IA No. 523 of 2006
Decided On : 20-08-2014
For the Appellant :M.A. Qayoom, Advocate
For the Respondents:G.A. Lone, Advocate
The failure to challenge a preliminary decree results in its finality, and the court will uphold such finality based on the provisions of the Civil Procedure Code.
Headnote:
Partition Suit - Property Dispute - Civil Procedure Code - Section 97, Code of Civil Procedure
Fact of the Case:
The case involved a dispute over the partition of property purchased from joint business and ancestral property jointly owned by two brothers. The trial court passed a preliminary decree in favor of the plaintiff, determining her share in the property and granting her possession. The appellate court upheld the trial court's decision, leading to the appeal.
Finding of the Court:
The court found that the appellant's failure to challenge the preliminary decree meant that it had attained finality and could not be questioned in the appeal. The court also rejected the appellant's arguments regarding the Commissioner's report, inclusion of other properties in the suit, and failure to equalize shares, upholding the judgments of the trial court and appellate court.
Issues: The main issues included the validity of the preliminary decree, the acceptance of the Commissioner's report, inclusion of other properties in the suit, failure to equalize shares, and the legal representatives of deceased defendants.
Ratio Decidendi: The failure to challenge the preliminary decree led to its finality, and the court upheld the judgments of the lower courts based on the findings and interpretations of the Civil Procedure Code.
Final Decision: The Letters Patent Appeal was dismissed, affirming the judgments of the trial court and appellate court.
Hasnain Massodi, J.:-
1. Letters Patent Appeal on hand is directed against the Appellate Court Judgment dated 18th July 2006 in Civil 1st Appeal No. 52/2004, titled Mst. Aisha v. Mst. Saleema Bano and Others, whereby appeal has been dismissed and judgment and decree of Trial Court dated 26th February 2004 upheld. It would be appropriate to take, in the first place, an overview of the facts and events that have led to filing of LPA on hand.
2. Late Khaliq Bhat and Sidiq Bhat sons of Late Ahmad Bhat, residents of Natipora, Srinagar ran a joint business. They purchased landed property from the proceeds of the business. However property was purchased only in name of Sidiq Bhat. The love and harmony between two brothers and their families did not last long. They got entangled in a dispute regarding partition of the property purchased from profits earned from joint business, as also ancestral property jointly owned by them.
3. Mst. Saleema-respondent No. 1 in the present appeal daughter of Khaliq Bhat, on 14th April 1993 laid a suit for partition and possession against Mohammad Yousuf Bhat and other legal heirs of Sidiq Bhat. Her case was that the suit property was joint and un-partitioned between the parties and she as descendant of Khaliq Bhat, was entitled to a share out of the suit property. She prayed that her share in the suit property be determined, the property partitioned by metes and bound and she put in possession of her share in the joint property.
4. Mst. Aisha-present appellant and other defendants in the suit resisted the suit on the grounds set out in their written statement. The Trial Court on perusal of pleadings settled as many as 18 issues for determination. Parties to the suit were given opportunity to adduce evidence in support of their respective stand.
5. Learned Trial Judge on conclusion of trial passed preliminary decree vide judgment dated 16th July 1997. The respondent No. 1/plaintiff was held entitled to 14 kanals and 6 marlas out of suit property comprising 83 kanals and 14 marlas, and to have a right to its possession. She was also held entitled to possession on partition, of her share in three storied house with four shops and land underneath and appurtenant thereto measuring 3500 square feet, situated at Natipora Srinagar. Collector Budgam, in terms of judgment, was to handover 14 kanals and 6 marlas of land to the respondent No. 1/plaintiff. As regards rest of the suit property, the Commissioner was directed to ascertain her share in accordance with the findings returned on issue No. 8 and put parties in possession of their respective shares. The preliminary decree was accordingly granted infavour of the respondent No. 1/plaintiff and against the appellant and pro forma respondents/defendants.
6. Mst. Shameema and others-defendants in the suit questioned the trial court judgment dated 16th July 1997 in Civil 1st Appeal No. 345/1997. The appellate court on 8.10.1997 stayed the preliminary decree, subject to the direction to Commissioner to go on spot and determine the shares without putting the parties in possession of shares so determined. The parties in possession of the suit property were directed not to alienate any part of the property in their possession.
7. The appellant aggrieved with the order dated 8.10.1997 questioned it in LPA being No. 09/1997. The appeal was disposed of on 9th March with the direction to the appellate court to dispose of the appeal expeditiously. Order dated 23.10.1997 was to remain in force in the meantime. The Civil 1st Appeal No. 345/1997 against trial court judgment dated 16th July, 1997, was dismissed on 24th December 2001.
8. The Commissioner notwithstanding the order dated 23rd October 1997 in LPA No. 09/1997, proceeded on spot and submitted his report on 21st November 1997. The trial court on receipt of case file in wake of dismissal of CIA No. 345/1997, vide order dated 29th March 2002 and 14th August 2002, directed the Collector Budgam to explain the reason
