D.N.Roy, J. - (1.) This is an application by Thakur Rudra Pratap Singh, defendant-appellant, for a certificate under Article 133 of the Constitution of India and Sections 109 and 110, Civil P. C. for leave to appeal to the Supreme Court. An application for amendment of the preliminary and final derees in a suit for partition was made by the applicant before the Civil Judge of Allahabad. That application was dismissed. Against that order a revision was filed in this Court and the revisional petition was also dismissed by our order of the 12-10-1954. The applicant desires to go to the Supreme Court in appeal against that order, and towards that end he prays for the necessary certificate.
(2.) In order to appreciate the nature and the scope of the application certain facts have got to be stated. One Sheopal Singh had three sons Ajodhya Prasad Singh, Rang Bahadur Singh and .Mangan Singh. Ajodhya Prasad Singh was married to Kunjals Kuar and he left a son Mritunjya Pratap Singh, who was plaintiff 1 to the suit. Mritunjya Pratap Singh has a son Baba Krishna Raj Singh, who was plaintiff 2. Mangan Singh had a son Tej Pratap. who was plaintiff 3. Tej Pratap died after the order of dis missal of the application for amendment was passed by the learned Civil Judge, and he is now repre sented by his widow and sons. Rang Bahadur Singh left four sons, namely, Suraj Pratap, Ram Pratap, Harihar Pratap and Rudra Pratap, who were the defendants to the suit. Mritunjya Pratap, Tej Pratap and the sons of Rang Bahadur formed a joint Hindu family which possessed considerable property, both immovable and movable. In 1927 Mritunjya Pratap and his son filed a suit in the Court of the Civil Judge for partition of the joint family property against the other coparceners. To the plaint were attached six lists of the joint family property to be partitioned. List No. 1 was of zamindari property and mentioned the land revenue payable against each item. List No. 2 was of houses and wells. List No. 3, which is the subject-matter of dispute before us, was of groves and other immovable property. It included one grove situate in village Mandaur, a plot of sankalap land in village Handia, another plot of land in village Hanumanganj, two flower gardens in villages Dhokri and Kotwa, and four orchards containing plum, guava and mango trees in villages Sarai-Mansoor, Kotwa Dhokri and Dalapur. All the nine items of this list were stated to be joint possession of all the co-parceners. No land revenue was assigned against any of them. The joint family possesed zamindari in all the villages mentioned above, except Mandaur, Handia and Hanumanganj. The properties included in this list were valued at Rs. 1,10,000/- in the list itself. List No. 4 was of outstandings. List No. 5 was of movables. The sixth list was of cattle. Tej Pratap, who was originally a defendant to the suit, filed a written statement claiming that there was some more joint family property which had been left out from the suit. He gave particulars of some groves which were left out by the plaintiffs and stated that there was some more property of which he could not give the details. Ram Pratap defendant also filed a written statement mentioning some more property. The plaintiffs filed a replication admitting that there was some more joint family property and praying that it should also be brought into the hotch potch to be partitioned. The plaintiffs were entitled to, and they claimed, one-third share in the joint family property; Tej Pratap was entitled to, and he claimed, one-third share; and the defendants admitted that they were entitled to the remaining one-third share. Subsequently Tej Pratap applied that his one-third share should also be partitioned and he was, therefore, transposed from the array of the defendants to the array of the plaintiffs. The result was that the plaintiffs claimed sepa-ration of their two-thirds share--one-third going to plaintiffs 1 and 2 and another one-third going to Tej Pratap plaintiff 3; and whatever was left was to go to the defendants who did not claim partition inter se. On 9-8-1928. counsel for the parties made a joint statement about the property claimed in the written statement and in the replication to be joint family property in addition to that included in the lists. According to the joint statement the decision of some of the controversy was left to the special oath of Mritunjya Pratap and Ram Pratap. Ram Pratap and Mritunjya Pratap made statements on special oath, the consequence of which was that some groves said to be worth Rs. 50,000/- or so were to be added to the property to be partitioned. When the matter was thus decided the trial Court should have got the lists amended by the plaintiffs, because that was the natural action to be taken. The Court, however, did not adopt that procedure, with the result that the lists remained unamended. On 3-9-1928, the trial Court passed a preliminary decree declaring that plaintiffs 1 and 2 were entitled to one-third share and plaintiff 3 was entitled to another one-third share, and the defendants were entitled to the remaining one-third share; that the lists attached to the plaint should be amended in the light of the joint statement of the counsel for the parties and the individual statements on special oath, and that the property included in the replication of Mritunjya Pratap and Tej Pratap would be treated as joint family property. The Court directed the preliminary decree to be prepared in accordance with its findings and further directed that : "So far as the revenue paying properties are concerned, plaintiffs 1 and 2 are declared to be entitled to the extent of one-third and plaintiff 3 to the extent of one-third" and that : ''the final decree would be prepared for the rest of the property".
(3.) The preliminary decree was prepared, but the lists were not amended; instead the joint statement of the parties, counsel and the individual statements aforesaid were made parts of the preliminary decree.;