- (1.) THIS is an appeal by the defendant Thakurji Sriji, which being a temple has been filed through Gulabchand and others against the judgment of the Senior Civil judge, Jaipur, dated 16-9-1953, in a suit for pre-emption. The appeal raises a point which is interesting and which does not appear to be directly covered by authority,
(2.) THE facts in so far as they bear on the contentions raised before me in this appeal may be stated very shortly. Certain rooms and a verandah in a house situate in Chowkdi Ghat Darwaza, Gheewalon-ka-Rasta in the city of Jaipur belonged to one Moolchand. The latter sold them to Thakurji Sriji situate in the same building by a registered deed dated 23-2-1948. The respondent Mst. Gulab bai filed a suit for pre-emption on the ground that she was a co-sharer in the same building. The suit was brought on 28-7-1948. The trial Court partly decreed the suit by its judgment and decree dated 31-7-1952, and the operative portion of the decree was in these terms: "the plaintiff and the defendant Thakurji Sriji do have equal rights of pre-emption and therefore they are entitled to share the suit properties in equal shares. . . . . and so a pre-emption decree to the extent of half of the disputed property is passed in favour of the plaintiff against the defendant on payment of a sum of Rs. 412/8/ -. The parties to bear their own costs. The plaintiff must deposit this money in Court within one month of the date of the decree in default whereof the plaintiff's suit shall stand dismissed. " The plaintiff deposited the sum of Rs. 412/8/-in Court in pursuance of the decree on 22-8-1952. The plaintiff also made an application while depositing the money that physical possession be handed over to her of half of the suit properties decreed in her favour by a partition and a commissioner be appointed for the purpose. A notice was issued to the defendant to show cause why a commissioner be-not appointed to make a partition as prayed. On 3-11-1952, defendant's counsel Mr. Sagar-mal stated that he had no objection to a partition being effected, and, consequently, a commissioner was appointed to effect two equal divisions of the suit properties. The commissioner in due course submitted his report whereupon the Court directed the parties to file their objections, if any. The defendant raised certain objections and these were gone-into, and eventually the Court passed what it characterized a final decree on 6-71953. By this final decree, the Court allotted rooms Nos. 1, 2 and 3 to the defendant appellant and rooms Nos. 4 and 5 to the plaintiff Gulab Bai and directed that the intervening door between room No. 5 and rooms Nos. 2 and 3 be closed, and that the plaintiff do further pay a sum of Rs. 76/12/- to the defendant. Aggrieved by this, the defendant went in appeal to the Senior Civil Judge, Jaipur, who by his judgment and decree dated 16-9-1953, partly allowed it and directed that the door between rooms Nos. 2 and' 3 on the one hand and room No. 5 on the other shall be closed by the plaintiff at her own cost after the defendant has opened a door facing north in room No. 2 and a further direction was given that the defendant do open this door within one month of the decree. The defendant has now come up in appeal against the aforesaid decree to this Court.
(3.) THE principal contention which has been raised before me is that the Courts below have fallen into grave error in passing the order which they did after the trial court's decree was passed on. 31-7-1952, inasmuch as once that decree had been passed, the pre-emption suit was finally decided and the trial Court had no further judicial function to perform in respect of the complete disposal of the suit, and, therefore, all the proceedings taken by the Courts below after 31-7-1952, were erroneous and without jurisdiction. In the second place, it is also contended that the particular division which has been directed by the Courts below is unfair to the defendant and should be modified as prayed in the grounds of appeal. I consider it unnecessary to give the details of the changes proposed by the appellant, as I am of opinion that if the first contention raised above has no force, this Court would not be justified in interfering with the decree passed by the lower appellate Court.;