A preliminary decree in a partition suit, once attained finality, cannot be re-determined, and the court must proceed to pass a final decree in accordance with established legal principles.

JUDGMENT :

Pankaj Jain, J.

While issuing notice of motion on 23.09.2022, the following order was passed:-

“By way of this Revision Petition petitioner seeks setting aside of orders dated 4.10.2021 (Annexure P-5); dated 3.12.2021 (Annexure P- 6); and dated 3.8.2022 (Annexure P-7) passed by the learned Civil Judge (Junior Division) Bahadurgarh by which the learned Court is stated to have again started the process of determining the share of each party for the purpose of passing preliminary decree in a suit for partition despite the fact that preliminary decree has already been passed in favour of the petitioner/plaintiff herein and against the defendant by the Additional Civil Judge (Senior Division) Bahadurgarh on 13.3.2006 (Annexure P-1).

Counsel for the petitioner states that this preliminary decree has attained finality between the parties vide judgment dated 20.3.2008 (Annexure P-2) passed by the Additional District Judge, Jhajjar; and appeal against the final decree was remanded back by the learned Additional District Judge, Jhajjar vide judgment dated 19.8.2019 (Annexure P-4) as it was not in consonance with the preliminary decree. Counsel for the petitioner further submits that once the preliminary decree has attained finality and shares of the parties have been determined, same are not open for re-determination. Reliance has been placed upon judgment of Hon’ble Supreme Court in Venkata Reddy and others v. Pethi Reddy 1963 AIR (SC) 992.

Notice of motion for 20.1.2023.

Till then proceedings before the trial Court shall remain stayed.”

2. Despite service, none has opted to appear on behalf of the respondents.

3. Mr. Kshitiy Sharma, Advocate, was appointed as Amicus Curiae. He submits that once a preliminary decree has attained finality, the Court while passing final decree cannot be allowed to go behind the preliminary decree. As the preliminary decree having attained finality, amounts to declaration of rights to shares of each co-owner. He further places reliance upon ‘Shub Karan Bubna @ Shub Karan Prasad Bubna versus Sita Saran Bubna and others’, 2009(4) RCR (Civil) 304, wherein it has been held as under:-

“4. Partition’ is a re-distribution or adjustment of pre-existing rights, among co-owners/coparceners, resulting in a division of lands or other properties jointly held by them, into different lots or portions and delivery thereof to the respective allottees. The effect of such division is that the joint ownership is terminated and the respective shares vest in them in severalty. A partition of a property can be only among those having a share or interest in it. A person who does not have a share in such property cannot obviously be a party to a partition. ‘Separation of share is a species of ‘partition’. When all co-owners get separated, it is a partition. Separation of share’s refers to a division where only one or only a few among several co-owners/coparceners get separated, and others continue to be joint or continue to hold the remaining property jointly without division by metes and bounds. For example, where four brothers owning a property divide it among themselves by metes and bounds, it is a partition. But if only one brother wants to get his share separated and other three brothers continue to remain joint, there is only a separation of the share of one brother. In a suit for partition or separation of a share, the prayer is not only for declaration of plaintiff’s share in the suit properties, but also division of his share by metes and bounds. This involves three issues:

(i) whether the person seeking division has a share or interest in the suit property/properties,

(ii) whether he is entitled to the relief of division and separate possession; and

(iii) how and in what manner, the property/properties should be divided by metes and bounds?

5. In a suit is for partition or separation of a share, the court at the first stage decides whether the plaintiff has a share in the suit property and whether he is entitled to divis