- (1.) This Revision Case was originally heard by Chunder J. and was referred to the Division Bench for disposal.
(2.) The facts are these: On December 6, 1927, a preliminary decree for partition was passed against the Defendant's predecessor-in-interest. About 22 years later, on September 1, 1949, the present Plaintiff claiming to be entitled to the Plaintiff's rights on succession through his mother made an application for making the decree final. Prayers were made in this petition for bringing the Petitioner on record as also for bringing the heirs of the deceased Defendant on record and then after local investigation to pass an order for a final decree. The trial court refused the prayer for a local investigation as also the prayer for a final decree. Against that decision an appeal was taken to the court of appeal below. In the court of appeal below the present Petitioner reiterated his claim to be the heir of the deceased original Plaintiff. The lower appellate court held that the Petitioner was the heir of the original Plaintiff. The lower appellate court, however, refused to make the preliminary decree final.
(3.) In this revision petition the sole question is whether liberty should be given to the present Petitioner to bring the heirs of the deceased Defendant on record and then to get an order for making the decree final. It appears that in the petition which was filed by the Petitioner in the trial court, the time when the original Plaintiff died and when the Plaintiff succeeded to the title of the original Plaintiff were not specifically mentioned. The Defendant died some time ago. A prayer for a local investigation was made to determine the identity of the lands which formed the subject-matter of the preliminary decree. No explanation has been given why no steps were taken earlier either to bring ?he heirs of the Defendant on record or to apply for the passing of a final decree. There was a serious dispute as regards the title of the present Petitioner to the properties in respect of which the preliminary decree was passed. As was pointed out by Sir George Rankin C.J. in the case of Elokeshee Dasee v. Kunjabihari Basak, 1933 60 ILR(Cal) 940 the court has an undoubted discretion in a matter like the present. In that case it was pointed out that the right to bring a second suit for partition subsisted in spite of the fact that a preliminary decree had been passed, which was not made final. In these circumstances, in our opinion, the courts below properly exercised their discretion in not allowing the Petitioner to obtain a final decree against the heirs of the original Defendant who had died some time ago, and in respect of properties the identity of which was doubtful. It is not necessary for the purposes of this case to decide the general question which was referred to this Bench.;