The court can amend the preliminary decree or pass another preliminary decree re-determining the rights and interests of the parties if events and supervening circumstances occur necessitating a change in shares.

1. This writ petition was filed on 10.02.2011 and by an order dated 09.06.2011 operation of the impugned order dated 30.11.2010 passed in Title (Partition) Suit No.102 of 1980 was stayed by a co-ordinate Bench of this Court. Thereafter, this writ petition was listed for hearing only on 12.02.2018. The respondent put his appearance through his counsel way back in the year 2011 and thereafter, Mr. Vishal Kumar Tiwary, the learned counsel has filed Vakalatnama on 05.07.2017. Taking note of the delay in listing of this writ petition about seven years after this Court passed an order of stay on 09.06.2011, an enquiry was ordered by this Court. By this order the petitioner was permitted to produce additional documents, however, subject to payment of Rs.25000/-. However, the petitioner has not availed the liberty granted to him for producing additional documents vide order dated 12.02.2018. The respondent has also not filed any affidavit in the present proceeding. In the above facts, prayer for adjournment was declined. During course of the hearing, Mr. Vishal Kumar Tiwary, the learned counsel for the respondent has tendered a copy of order dated 01.04.2016 passed in Contempt Case (Civil) No.393 of 2011 to submits that any interference in the matter would amount to two conflicting orders by this Court. By order dated 01.04.2016 passed in Contempt Case (Civil) No.393 of 2011 which was initiated alleging willful violation of order passed in First Appeal No.149 of 1984(R) this Court has issued the following directions:

“In view of the aforesaid submissions, I hereby direct respondent nos.1 and 2 and their agents, servants or representatives to allow the Pleader Commissioner to enter into the properties, which are referred in Schedule A and B to the plaint of Title (Partition) Suit No.102 of 1980. They shall not obstruct the Pleader Commissioner to take measurement from inside and outside. If any interference is made by them, the Pleader Commissioner shall point out to the trial court or to this Court, immediately.”

2. To a pointed query from the Court, whether a copy of order dated 30.11.2010 passed in Title (Partition) Suit No 102 of 1980 was brought to the notice of the learned Single Judge hearing Contempt Case (Civil) No. 393 of 2011, Mr. Vishal Kumar Tiwary, the learned counsel for the respondent states that in the contempt petition order dated 30.11.2010 of the trial court has not been referred to.

3. The defendants in Title (Partition) Suit No. 102 of 1980 have questioned the legality of order dated 30.11.2010.

4. Title (Partition) Suit No.102 of 1980 was instituted claiming a preliminary decree of partition to the extent of half share in the schedule 'A' and schedule 'B' properties and for appointment of a survey knowing Pleader Commissioner for preparation of final decree. The suit was dismissed against which First Appeal No.149 of 1984(R) was preferred by the plaintiffs. During pendency of the appeal the appellants filed an application for injunction on the allegation that the defendants were raising construction over schedule 'B' property. By an order dated 11.02.1985 this Court restrained the defendants from raising any construction over the schedule 'B' property, however, the application for injunction was finally disposed of on 02.12.1985 in the following terms:

“By the present application the appellants have prayed for an order of injunction restraining the other side from making any construction over schedule 'B' land.

On behalf of the other side Mr. N.K. Prasad, states that the respondents shall not claim any equity on the ground of the construction which they may be putting up on the disputed land during the pendency of this appeal.

In view of the undertaking which will be given effect to by the court below in future, the appellants are not likely to suffer any injury.

The application is, therefore, dismissed.”

5. First Appeal No.149 of 1984 (R) was allowed by judgment dated 30.08.1991. On remand, Title (Partition) Su