Decided on August 29,1963

ABDUL RAHIM Respondents


Sharfuddin Ahmed, J. - (1.) The short question that requires determination in this C. R. P. is whether a third party could be added as defendant to a suit for partition in which a preliminary decree has been passed.
(2.) The question arises in the following circumstances: The petitioners father late Mahiuddin filed a suit for partition of certain properties mentioned in a and 8 schedule claiming to be the grandson of one Khader Ali. The defendants to the proceedings were the grandsons of the same ancestor through the first wife. The suit was instituted on 4-12-1951 and a preliminary decree was passed on 22-9-1953 directing the partition of the properties by metes and bounds into 7 equal shares and allotting 3 shares out of 7 shares to the plaintiff. Thereafter a Commissioner was appointed on an applica-tion (I. A. 510/55) for the division of ths properties. So far as A schedule was concerned, the partition was effected. But when the Commissioner came for the measurement and partition of B schedule, which consisted of a house, 1500 sq. yards in extent, the Commissioner found that many objections were raised by the defendants (third parties) who had purchased the suit house in or about 1913 and built a pucca house by spending heavy amounts thereon. He, thereupon sought for the directions of the Court. The plaintiff-petitioner filed a petition for partition of the rest of the site leaving the portions that were in possession of third parties and an application was filed by third parties for being impleaded as parties to the proceedings. The learned Additional District Judge by his order dated 26/09/1956 dismissed the petition holding that he saw no bona fides in making the application to implead the parties to the suit at this stage. On the next day i.e., on 27/09/1956 he passed another order directing the commissioner not to proceed with the division of B schedule site. It is to be noted that he also dismissed the petitions filed by the respondents herein for being impleaded as a party on the ground that he had issued a ditection to the Commissioner not to proceed with the division. It is against the first order i. e., of 2 6/09/1956 that the revision petition has been filed.
(3.) The learned counsel for the petitioner relying on Krishna Lal Jha v. Mandeswar Jha, AIR 1921 Pal 296, Noor Mohammad v. Zainul Abdin, AIR 1940 All 399, Krishna Iyar v. Subrshmania Aiyar, AIR 1924 Mad 648 and Jotindra Mohan Tagore v. Bejoy Chand, ILR 32 Cal 483, has urged that the respondents herein could be impleaded as a party even after the passing of the final de-cred. In the Calcutta case referred to above ILR 32 Cal 483 it was held that a suit for partition, even when the report of the Commissioners is confirmed and a decree is directed to be drawn in accordance therewith, is a pending litigation, until the Court signs the final decree.;

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