The preliminary decree for partition is a declaration of the rights of the parties and their shares in the joint family or coparcenary property, and the final decree should specify the division by metes and bounds and be engrossed on stamped paper.

JUDGMENT :

A.K.Rath, J.

This petition challenges the order dated 1.2.2018 passed by the learned Senior Civil Judge, Balasore in C.S.No.191 of 2011 (F.D). By the said order, learned trial court rejected the application of defendant nos.4 (ka) to 4 (ga), petitioners herein, to provide them opportunity to adduce evidence for allotment of their share.

2. The plaintiff-opposite party no.1 instituted the suit for partition and permanent injunction. The defendant no.4 filed written statement claiming that she has 1/6th share in Lot No.1, 1/2 share in Lot Nos.4, 5 & 6 and 1/4th share in Lot No.3 of suit schedule properties. The suit was dismissed on contest against defendants 1, 2, 4 & 8 to 20 and 26 to 30 and ex parte against other defendants. Felt aggrieved, the plaintiff filed RFA No.498 of 2014 in the Court of the learned District Judge, Balasore. Learned District Judge held that the suit property be partitioned amongst the co-sharers according to their legitimate shares. The co-sharers may effect the partition amicably or through the process of the Court. The alienations made out of the suit property be adjusted in the shares of the respective co-sharers/vendors. Held so, it allowed the appeal. The suit was decreed preliminarily. Thereafter the plaintiff levid final decree proceeding. In the final decree proceeding, defendant 4 (ka) to 4 (ga), petitioners herein, filed an application to provide them opportunity to adduce evidence regarding allotment of their share. No share was determined in the preliminary decree. It is not possible on the part of the Civil Court Commissioner to submit report. In the absence of any determination of share, partition is not possible. Learned trial court held that defendant no.4 is entitled to get his share. There is no cloud of suspicion with regard to the share of the parties. The parties can be heard on the point of their respective shares from the pleading and evidence of the parties. No direction was issued by the appellate court to adduce further evidence. Held so, it rejected the petition.

3. Mr.Maheswar Mohanty, learned Advocate for the petitioners submitted that in the preliminary decree share of the parties have not been determined. Learned District Judge held that the suit property shall be partitioned amongst the co-sharers. In view of the same, the petitioners filed an application for determination of the share. He further submitted that under Order 20 Rule 18 (2) CPC the Court shall pass a preliminary decree declaring the rights of the parties interested in the property and giving such further directions as may be required. In absence of any specific share of the parties, the Civil Court Commissioner cannot make allotment of share. He places reliance on a decision of the apex Court in the case of Shankar Balwant Lokhande (dead) by L.Rs. v. Chandrakant Shankar Lokhande and another, (1995) AIR SC 1211.

4. Per contra, Mr.Samir Kumar Mishra, learned Advocate for opposite party no.1 supports the order. He contended that the judgment passed by the learned District Judge, Balasore is perfectly in consonance with the law. The question of adduction of evidence by the petitioners does not arise at all.

5. Before adverting into the contentions raised by the counsel for the parties, it will be necessary to set out sub-rule 2 of Rule 18 of Order 20 CPC.

"18. Decree in suit for partition of property or separate possession of a share therein.-Where the Court passes a decree for the partition of property or for the separate possession of a share therein, then,-

(1) xxx xxx xxx

(2) if and in so far as such decree relates to any other immovable property or to movable property, the Court may, if the partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree declaring the rights of the several parties interested in the property and giving such further directions as may be required."

6. The aforesaid sub-rule was the subject of interpretation in the case of Shankar Balwa