Prasenjit Mandal, J. - (1.) CHALLENGE is to the order no.119 dated November 21, 2009 passed by the learned Civil Jude (Junior Division), Baruipur in Title Suit No.101 of 1994 thereby rejecting an application under Section 151 of the C.P.C. filed by the defendant nos.2(a) to 2(h).
(2.) THE plaintiffs / opposite parties herein instituted a suit being Title Suit No.101 of 1994 against the predecessor-ininterest of the petitioners and other defendants for partition and other reliefs. In that suit, the defendant no.2 entered an appearance and he filed a written statement denying the material allegations made in the plaint. Thus, he was contesting the said suit. THE said suit was decreed in the preliminary form on January 20, 1997 declaring 1/4th share to each of the parties. In the mean time, the defendant no.2 died and his heirs and the proforma opposite party no.5 have been substituted. In that suit, the share of the defendant nos. 2(a) to 2(h) has been declared. The defendant nos. 2(a) to 2(h) and the defendant no.5 filed applications for separate allotment. The commissioner was appointed and then upon holding investigation, the learned Commissioner submitted his report. Thereafter, the petitioners filed an objection against the report of the Commissioner by filing an application under Section 151 of the C.P.C. By the impugned order, the learned Trial Jude rejected the application under Section 151 of the C.P.C. on the ground that since the preliminary decree declaring the shares of the parties had been passed, the question as raised therein cannot be reopened. Being aggrieved, this application has been preferred. Upon hearing the learned counsel for the parties and on going through the materials on record, I find that the impugned order cannot be supported. It is the specific case of the petitioners that by suppressing the fact and practising fraud upon the Court, the decree for partition had been obtained and so, the decree was liable to be set aside. The shares of the parties had been declared earlier by a registered deed of partition in 1971 and as such, the learned Trial Judge was not justified in rejecting the prayer of the petitioners for alteration or modification of the decree.
(3.) THE learned Trial Judge has observed in the impugned order that since a preliminary decree had been passed declaring the shares of the parties, there is no scope of reopening the matter again. But the law is otherwise. THEre is no bar to pass a fresh decree instead of the original decree in the title suit. If necessary, there is no bar to pass more than one preliminary decree in the suit. During the argument, Mr. Hiralal Bhattacharjee, learned advocate appearing for the petitioner has referred to the following decisions:- i) The decision of Sri Prohlad Roy v. Sunil Kumar Roy @ Susandhar Roy and ors. reported in 1990(1) CLJ 234 and thus, he submits that a decree passed by the Court without jurisdiction is a nullity and that its validity could be set up, whenever, it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. By exercising inherent power, the Court can remove technicalities. ii) He has next referred to the decision of Abdul Wahab Khan v. Tilakdhari Lal and ors. reported in 32 CWN 170 and thus, he submits that the private partition of portion of Estate barring formal partition of whole by Civil Court and the right to sue for partition in respect of reminder are permissible. A formal partition of whole estate by the Civil Court is, therefore, barred. In respect of lands which were undivided, the right to sue for partition, however, subsisted. The instant case, I hold, is in consonance with this decision. iii) He has also referred to the decision of S. Satnam Singh and ors. v. Surender Kaur and anr. reported in 2009(2) SCC 562 and thus, he submits that a decree may be partly preliminary and partly final. The Court must always be ready and willing to rectify the mistake, it has committed. And, iv) He has also referred to the decision of S.P. Chengalvaraya Naidu (dead) by Lrs. v. Jagannath (dead) by Lrs. and ors. reported in 1994 (1) SCC 1 and thus, he submits that whenever it was detected that when a property had been partitioned earlier and such fact was not disclosed with a view to obtaining advantage, amounts to fraud and so such decree obtained by fraud is liable to be set aside. ;