M. Y. Eqbal, J.-In this application under Article 227 of the Constitution of India, defendant no.1-petitioner, has challenged the order dated 9.9.2004 passed by Sub-Judge, 1st Court, Hazaribagh in Partition Suit No. 28 of 1951 whereby he has allowed the application filed by the descendants of defendant no. 2 and the plaintiff for preparation of final decree in the said suit.

2. The facts of the case lie in a narrow compass:

In 1951 a partition suit being partition suit no. 28/51 was filed by the plaintiff against the defendants including the present petitioner for a decree of partition in respect of the joint family property. During the pendency of the suit the parties settled their disputes outside court and a compromise petition was filed in the said partition suit no. 28/51. On 21 .8.1952 the trial court decreed the suit in terms of compromise and ordered that compromise petition shall form part of decree. Subsequent thereafter, a petition was filed by the defendant for some correction in the order dated 21.8.52 and the court below, by order dated 5.2.55, corrected the decree and further issued direction for appointment of pleader commissioner to proceed with partition. The pleader commissioner submitted his report which was confirmed on 21.2.57.

3. In 2003 the respondents, who are the descendants of defendant no. 2 and the plaintiff, filed an application stating, inter alia, that on the basis of a compromise petition, preliminary decree was passed in the said partition suit no. 28/51 on 21.8.1952 but no final decree was prepared till date. Hence, it was prayed that by appointing a survey knowing pleader commissioner separate takhta of the respondents (plaintiff and defendant no. 2) be carved out and final decree be prepared.

4. The petitioner, Smt. Uma Devi, who was defendant no. 1 in the suit, filed reply stating, inter alia, that a final decree was prepared in the said partition suit which was acted upon and parties are in possession of their respective shares since the date of compromise decree. It was stated that there was no question of again preparing a final decree. It was also contended that the application filed by the respondents was not maintainable.

5: The court below, after hearing the parties, allowed the application and directed for appointment of a survey knowing pleader commissioner afresh for takhtabandi and for preparation of final decree.

6. From the impugned order it transpires that the original record of partition suit no. 28/51 was not traceable. The District Judge reconstructed the records of the said partition suit no. 28/51 and sent the same to the court below. The parties were asked to file documents; such as order-sheets and final decree etc. but none of the parties filed the survey, report or any order-sheet or document. However, the judgment of subsequent partition suit no. 32/ 1956 was made available on record to show that in the said judgment it was mentioned that a final decree was passed in the partition suit no. 28/51. The court below, in the impugned order, held that although there is mention about the final decree passed in the partition suit no. 28/51 but that does not mean that, in fact, final decree was passed. The court below, therefore, held that for avoiding multiplicity of proceedings it is necessary to appoint survey knowing pleader commissioner for the purpose of preparation of final decree.

7. Admittedly in the subsequent partition suit no. 32/56 the ancestors of defendant no. 2 (respondents herein) were parties. The suit was for partition of other joint family property. In the said judgment of partition suit no. 32/56 it was admitted by the predecessor-in-interest of the respondents that a final decree was passed in partition suit no. 28/51 and, according to the final decree, the parties of that suit have been coming in possession of the property which was the subject matter of that suit. The aforesaid fact about final decree passed in the partition suit no. 28/51 mentioned in