An order passed by a trial court fixing the shares of parties in a partition suit is not a decree and an appeal against the same is not maintainable.

K.L.Gosain, J.

1. This case has a some what chequered history. One Ram Narain Mahajan of village Shahjehanpur, tehsil Rewari, had eight sons Ganeshi Lal, Shugan Chand, Gouri Sahai, Bhuria Mal, Lalji Mal, Tulsi Ram, Gur Dial and Ram Dial. In course of time the family shifted to Delhi and Carried on business there in the locality known as Khari Baoli. The branch of Gouri Sahai became extinct by his death without leaving any issue. Joti Prashad grandson of Tulsi Ram and Sat Narain grandson of Gur Dial brought the suit giving rise to this appeal for partition of the property which they alleged belonged to the joint Hindu family of the descendants of Ram Narain. A preliminary decree was ultimately passed in the case on the 27th August, 1943, in which the plaintiffs share was held to be one-third and the defendants two-thirds (each of the defendant having one sixth). Ganeshi Lal defendant had spent Rs. 5,800/- to redeem a part of the property in dispute and had received a sum of Rs. 1,200/- on account of redemption of some mortgagee rights.

It was therefore, provided in the decree of the trial Court that the plaintiffs would pay proportionate amount out of the balance of Rs. 4,600/- to Ganeshi Lal. On appeal the learned District Judge maintained the preliminary decree subject to the modification that the plaintiffs were required to pay proportionate amount out of Rs. 5,000/- to Ganeshi Lal. Ganeshi Lal came up to the High Court in second appeal, but the decree as modified by the learned District Judge was maintained. An appeal was then taken to the Supreme Court of India but the same was dismissed. At the time of hearing of the appeal it was submitted to their Lordships of the Supreme Court that on account of some of the lines having become extinct, the shares of the parties had undergone a change, but their Lordships did not give any final decision on the said point and observed in their judgment as under:-

"The parties are not agreed on the shares to which the plaintiffs are entitled, and this is because after the date of the final decree some of the branches have become extinct by the deaths oJ their representatives. Whether under Customary law in the Punjab, uncles exclude nephews or they take jointly, and whether succession is per stirpes or per capita was the subject of disagreement at the Bar before us. This question must therefore be left over for determination by the trial Court, and the case will have to go back to that Court for effecting partition and delivery of possession according to the shares to which the plaintiffs may be found entitled. Subject to what is contained in the foregoing paragraph, the appeal will stand dismissed with costs."

2 It may be noted here that this order was passed by the Supreme Court on the 7th November, 1952, but after the date of the preliminary decree and before the aforesaid date there were two orders passed by the trial Court -- one on the 28th August, 1949, and the other on the 12th April, 1949, by means of which the shares of the parties were modified. By virtue of the first order the plaintiffs share was increased from 2/6ths as provided for in the preliminary decree to 2/5ths and the share of each of the defendants WAS increased from I/6th as provided for in the preliminary decree to l/5th. By virtue of the order, dated the 12th April, 1949, the plaintiffs share was modified again from 2/5ths to one-half and that of the defendants collectively to the balance one-half

When the records were received back by the trial Court after the decision of the appeal by the Supreme Court, the matter of fixation of shares was agitated by the parties. By an order, dated the 29th June, 1954, the trial Court found that the plaintiffs were entitled to one-third share, Ganeshi Lal defendant to one-half and Rameshwar Dial defendant to l/6th share and ordered that final partition would be made according to the aforesaid shares.

The plaintiffs felt aggrieved with this order and filed an appeal in