The main legal point established in the judgment is that a preliminary decree in a partition suit does not dispose of the suit, and the application for a final decree is a reminder to the court to complete the pending suit. It also clarified that the application for a final decree does not invoke the jurisdiction of the court to grant any fresh relief based on a new cause of action and is not subject to the law of limitation.

JUDGMENT :

Petitioners are legal representatives of late Brij Nandan Ghildiyal. Brij Nandan Ghildiyal filed a partition suit before learned Civil Judge (Senior Division), Pauri Garhwal, which was registered as Civil Suit No. 29 of 2000. During pendency of the suit, Brij Nandan Ghildiyal died and petitioners were substituted in his place.

2. Learned trial Court passed a preliminary decree in the said suit on 02.04.2012 holding that all the four sons of late Anusuya Prasad Ghildiyal (father of late Brij Nandan Prasad Ghildiyal) will get 1/4th share in the family property.

3. After passing of the preliminary decree, petitioners moved an application under Order 26 Rule 13 C.P.C. for issuing a commission to make partition as per the rights declared in the preliminary decree. Trial Court appointed an Advocate Commissioner, who submitted his report on 15.01.2016.

4. Thereafter, report was also called from Deputy Nazir. Based on the report submitted by Deputy Nazir, learned trial Court passed an order on 30.09.2019 directing the Deputy Nazir to prepare Kurras in respect of remaining 0.099 hectare land and hand over possession of such remaining land to petitioners. Respondent nos. 1 to 6 challenged the said order by filing revision under Section 115 C.P.C., which was allowed by learned Additional District Judge, Kotdwar, vide judgment dated 01.02.2020, and the order passed by trial Court was set-aside. The said judgment is challenged by petitioners in this writ petition.

5. It is settled position in law that either of the parties to a partition suit can move an application for preparation of a final decree and defendant can also move such application for preparation of final decree. By mere passing of a preliminary decree, a partition suit is not disposed of. A preliminary decree declares rights or shares of the parties to the partition suit. Once shares are declared by a preliminary decree, a further inquiry still remains to be done for actual partitioning the property, and placing the parties in separate possession of the divided property.

6. Rule 18 of Order XX CPC deals with decree in a partition suit, which is reproduced below:-

“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) if and in so far as the decree relates to an estate assessed to the payment of revenue to the Government, the decree shall declare the rights of the several parties interested in the property, but shall direct such partition or separation to be made by the Collector, or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with such declaration and with the provisions of section 54;

(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.”

7. In the case of Shub Karan Bubna v. Sita Saran Bubna, (2009) 9 SCC 689, Hon’ble Supreme Court has held as under:-

“5. “Partition” is a redistribution 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.

6. 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 s