I.A. No. 2325 of 2009 in (C. Rev. No.4 of 2007)

with

I.A. No. 2430 of 2009 in (C. Rev. No. 10 of 2007)

By way of both the interlocutory application, substitution petition has been filed for substituting the heirs of petitioner No. 1 (in I.A. No. 2325 of 2009) and respondent No. 2 (I.A. No. 2430 of 2009), namely Braj Kishore Prasad, who died leaving behind the heirs, whose name has been described in paragraph-2 of the I.A No. 2325 of 2009 and paragraph-4 of the I.A. No. 2430 of 2009, as right to sue still survives. No objection has been raised by the other side.

2. Accordingly, let legal representatives of petitioner No.1 (in I.A. No. 2325 of 2009) and respondent No.2 (in I.A. No. 2430 of 2009), whose description has been given in paragraph-2 of the I.A. No. 2325 of 2009 and paragraph-4 of the I.A. No.2430 of 2009, be substituted in place of petitioner No. 1 (in I.A. No. 2325 of 2009) and respondent No.2 (in LA. No. 2430 of 2009). Substituted heirs have already been appeared through lawyer.

3. Thus, both the I.As. stand disposed of.

Civil Review No.4 of 2007 with Civil Review No.10 of 2007

4. Heard learned counsel appearing for the petitioners and learned counsel appearing for respondents on the merits of the case.

5. On perusal of the record, it does appear that an order was passed in Partition Suit No. 28 of 1951, by learned Sub-Judge, Hazaribagh, whereby a Pleader Commissioner was appointed for Takhta Bandi.

6. That order was challenged before this Court in W.P.(C) No. 74 of 2005*, by one of the descendants of the original defendant No.1. Plaintiff was made party in the said writ application but descendant of defendant No.2 was not imp-leaded as party in the said writ application. The stand which was taken on behalf of the petitioner of that case was that the final decree had already been passed on the basis of preliminary decree, after getting a report of the Pleader Commissioner, but the learned court below ignoring that fact again passed the order for appointment of the Pleader Commissioner for Takhta Sandi, though the parties had taken possession of their respective shares, shown in the Pleader Commissioner's report, Which had been confirmed by the Court.

7. However, learned counsel appearing for the respondent (Descendant of the Plaintiff) had refuted the fact that any final decree had ever been drawn by the court and had any such final decree would have been drawn that must have been filed but the party has failed to produce the copy of the final decree before the Court. However, submission advanced on behalf of the respondent was not accepted for the reason assigned herein below:-

"The aforesaid fact about final decree passed in the Partition Suit No.28 of 1951 mentioned in the subsequent judgment finds support from the admitted fact that no application for preparation of final decree was filed by the respondents or their predecessors in-interest till 2003. The Court below, therefore, committed serious error of law in not considering these facts and also the fact that the instant application for preparation of final decree was filed by the respondents after about 46 years from the date when Pleader Commissioner's report was confirmed. The Court below has further committed serious error of law in not considering the order dated 21.2.1957, which shows that a Pleader Commissioner was already appointed and the report submitted by the Pleader Commissioner was confirmed. In my considered opinion, when a Pleader Commissioner was appointed and the report of the Pleader Commissioner was confirmed in the suit 46 years back, then there was no occasion for the Court below to again the application for appointment of a new Pleader Commissioner and for preparation of separate Takhta. Admittedly, the suit was decreed on compromise in 1952. A copy of the said decree has been filed and marked as Annexure-2 to this application. The operative portion of the decree reads as under:-

"This suit coming on this the 21st day of August,. 1952 fo