M.Y.EQBAL, J. - (1.) IN this application under Article 227 of the Constitution of India, defendant No. 1 -petitioner, has challenged the order dated 9.9.2004 passed by Sub -Judge, 1st Court, Hazaribagh in Partition Suit No. 28 of 1951 whereby he has allowed the application filed by the descendants of defendant No.
(2.) AND the plaintiff for preparation of final decree in the said suit. 2 The facts of the case lie in a narrow compass : In 1951 a partition suit being partition suit No. 28/51 filed by the plaintiff against the defendants including the present petitioner for a decree of partition in respect of the joint family property. During the pendency of the suit the parties settled their disputes outside Court and a compromise petition was filed in the said partition suit No. 28/51. On 21.8.1952 the trial Court decreed the suit in terms of compromise and ordered that compromise petition shall form part of decree. Subsequent thereafter, a petition was filed by the defendant for some correction in the order dated 21.8.1952 and the Court below, by order dated 5.2.1955, corrected the decree and further issued direction for appointment of Pleader Commissioner to proceed with partition. The Pleader Commissioner submitted his report which was confirmed on 21.2.1957. In 2003 the respondents, who are the descendants of defendant No. 2 and the plaintiff, filed an application stating, inter alia, that on the basis of a compromise petition, preliminary decree was passed in the said partition suit No. 28/51 on 21.8.1952 but no final decree was prepared till date. Hence it was prayed that by appointing a survey knowing Pleader Commissioner separate takhta of the respondents (plaintiff and defendant No. 2) be carved out and final decree be prepared.
(3.) THE petitioner, Smt. Uma Devi, who was defendant No. 1 in the suit, filed reply stating, inter alia, that a final decree was prepared in the said partition suit which was acted upon and parties are in possession of their respective shares since the date of compromise decree. It was stated that there was no question of again preparing a final decree. It was also contended that the application filed by the respondents was not maintainable.;