G.P. Mathur, J. - (1.) The petitioner Smt. Prabhawati Devi filed Original Suit No. 53 of 1977 for partition of her 2/5th share in the property in dispute situate in mohalla Khodaipura in Ghazipur which was decreed on 4.9.1981 by the Civil Judge, Ghazipur and a preliminary decree for partition was passed. Aggrieved by the judgment and decree, Rahat Ullah filed Civil Appeal No. 4 of 1982 and Syed Zainul Nabi filed Civil Appeal No. 11 of 1982 which were both dismissed by 1st Additional District Judge on 1.5.1986. Thereafter, proceedings for preparation of final decree were commenced wherein Rahat Ullah moved an application under Section 4 of the Partition Act. This application was allowed by the Civil Judge by the Judgment and order dated 20.11.1987 and it was directed that Rahat Ullah may take necessary steps for ascertaining the valuation of plaintiffs 2/5th share and plaintiff Smt. Prabhawati Devi was directed to execute a sale deed of her share in favour of the applicant. This order was challenged by the plaintiff Smt. Prabhawatl Devl by filing a Revision which was dismissed by 2nd Additional District Judge on 1.2.1991. As the second Revision is barred on account of U.P. Amendment to Section 115, C.P.C., the plaintiff has preferred the present writ petition under Article 226 of the Constitution and has sought quashing of the orders dated 20.11.1987 and 1.2.1991.
(2.) Sri R. N. Singh, learned senior counsel for the petitioner has submitted that the impugned orders wherein the plaintiff has been directed to execute a sale deed of her 2/5th share in favour of Rahat Ullah is illegal as his plea which is based upon Section 4 of Partition Act, has not been examined on facts by any Court. It is urged that in order to attract Section 4 of Partition Act, it is necessary that a share in a dwelling house belonging to an undivided family should have been transferred to a person who is not a member of such family but in the present case a share in a dwelling house was not transferred as the house in dispute had been mortgaged and was also in occupation of a tenant. Dr. R. G. Padia, learned Senior Counsel for the respondent has, on the other hand, urged that in view of the earlier judgment and order dated 1.5.1986 of 1st Additional District Judge, it is not open to the petitioner to raise such a contention. It is urged that a finding has already been recorded in the aforesaid judgment and order that the respondent No. 3 is entitled to the benefit of Section 4 of the Partition Act which finding having become final, the plea of the petitioner is barred by principles of res judicata.
(3.) O.S. No. 53 of 1977 was filed by Smt. Prabhawati Devi wherein Rahat Ullah was arrayed as defendant No. 1, Smt. Hamidun Bibi was arrayed as defendant No. 3 and was shown as defendant second set and Gayaram, Tribhuvandas, Ghulam Husain and Badrinath were arrayed as defendant Nos. 4 to 7 and were shown as defendants third set. During pendency of the suit, Trlbhuvandas and Ghulam Husain died and their heirs were brought on record. The relief claimed in the suit was for partition of 2/5th share of the plaintiff and further a declaration that the defendant second set had no right or title over House No. 88 (which was part of the property in suit) and if in the opinion of the Court, defendant second set had a title over the same, the plaintiff may be allowed to get the same redeemed on payment of due money and she may be given actual possession thereof. The plaintiff had also claimed relief for recovery of Rs. 682 as rent and damages for her share in the property in suit which was in the tenancy of defendant Nos. 4 to 7. The suit was contested by the defendants first and second set and not by other defendants. Learned civil Judge by the judgment and decree dated 4.9.1981 decreed the suit in toto. Against the decree of the trial court, two appeals were preferred. Civil Appeal No. 11 of 1982 was filed by Syed Ziaul Nabi and Civil Appeal No. 4 of 1982 was filed by Rahat Ullah. Both the appeals were disposed of by a common judgment and order dated 1.5.1986 by the 1st Additional District Judge and Civil Appeal No. 11/1982 was dismissed with costs to the plaintiff. Civil Appeal No. 4 of 1982 was also dismissed and the decree passed therein is being reproduced below as it has a bearing on the controversy in dispute : "Civil Appeal No. 4 of 1982 is dismissed subject to the modification that Sri Rahat Ullah may be given the benefit of Section 4 of Partition Act by the trial court on his application as such, which may be moved by him before the trial court at the time of preparation of final decree. He shall fulfil the required conditions of Section 4 of the Partition Act for getting Its benefit before the trial court. If he falls to fulfil the required obligation of law under the provisions of said Act, the benefit would not accrue to him. The costs of this appeal shall be borne by the parties. Civil Appeal No. 11 of 1982 is dismissed with costs to the plaintiff-respondent Smt. Prabhawati Devi. Sri. Rahat Ullah shall bear his own costs of this appeal. Let a copy of this Judgment be placed on the record of Civil Appeal No. 11 of 1982." The question which requires consideration here is whether the decree passed in Civil Appeal No. 4 of 1982 conclusively determines the rights of the parties so as to attract the provisions of Section 11, C.P.C. and preclude the plaintiff from showing that on the facts of the case, Rahat Ullah is not entitled to claim benefit of Section 4 of the Partition Act.;