Aisha vs Saleema Bano and Others

Hasnain Massodi, J.â€"Letters Patent Appeal on hand is directed against the Appellate Court Judgment dated 18th July 2006 in Civil 1st Appeal

No. 52/2004, titled Mst. Aisha v. Mst. Saleema Bano and Others, whereby appeal has been dismissed and judgment and decree of Trial Court

dated 26th February 2004 upheld. It would be appropriate to take, in the first place, an overview of the facts and events that have led to filing of

LPA on hand.

Late Khaliq Bhat and Sidiq Bhat sons of Late Ahmad Bhat, residents of Natipora, Srinagar ran a joint business. They purchased landed

property from the proceeds of the business. However property was purchased only in name of Sidiq Bhat. The love and harmony between two

brothers and their families did not last long. They got entangled in a dispute regarding partition of the property purchased from profits earned from

joint business, as also ancestral property jointly owned by them.

Mst. Saleema-respondent No. 1 in the present appeal daughter of Khaliq Bhat, on 14th April 1993 laid a suit for partition and possession

against Mohammad Yousuf Bhat and other legal heirs of Sidiq Bhat. Her case was that the suit property was joint and un-partitioned between the

parties and she as descendant of Khaliq Bhat, was entitled to a share out of the suit property. She prayed that her share in the suit property be

determined, the property partitioned by metes and bound and she put in possession of her share in the joint property.

Mst. Aisha-present appellant and other defendants in the suit resisted the suit on the grounds set out in their written statement. The Trial Court

on perusal of pleadings settled as many as 18 issues for determination. Parties to the suit were given opportunity to adduce evidence in support of

their respective stand.

Learned Trial Judge on conclusion of trial passed preliminary decree vide judgment dated 16th July 1997. The respondent No. 1/plaintiff was

held entitled to 14 kanals and 6 marlas out of suit property comprising 83 kanals and 14 marlas, and to have a right to its possession. She was also

held entitled to possession on partition, of her share in three storied house with four shops and land underneath and appurtenant thereto measuring

3500 square feet, situated at Natipora Srinagar. Collector Budgam, in terms of judgment, was to handover 14 kanals and 6 marlas of land to the

respondent No. 1/plaintiff. As regards rest of the suit property, the Commissioner was directed to ascertain her share in accordance with the

findings returned on issue No. 8 and put parties in possession of their respective shares. The preliminary decree was accordingly granted infavour

of the respondent No. 1/plaintiff and against the appellant and pro forma respondents/defendants.

Mst. Shameema and others-defendants in the suit questioned the trial court judgment dated 16th July 1997 in Civil 1st Appeal No. 345/1997.

The appellate court on 8.10.1997 stayed the preliminary decree, subject to the direction to Commissioner to go on spot and determine the shares

without putting the parties in possession of shares so determined. The parties in possession of the suit property were directed not to alienate any

part of the property in their possession.

The appellant aggrieved with the order dated 8.10.1997 questioned it in LPA being No. 09/1997. The appeal was disposed of on 9th March

with the direction to the appellate court to dispose of the appeal expeditiously. Order dated 23.10.1997 was to remain in force in the meantime.

The Civil 1st Appeal No. 345/1997 against trial court judgment dated 16th July, 1997, was dismissed on 24th December 2001.

The Commissioner notwithstanding the order dated 23rd October 1997 in LPA No. 09/1997, proceeded on spot and submitted his report on

21st November 1997. The trial court on receipt of case file in wake of dismissal of CIA No. 345/1997, vide order dated 29th March 2002 and

14th August 2002, directed the Collector Budgam to explain the reasons for not implementing the decree, and to implement the decree and report

compliance. Tehsildar Chadoora in compliance of trial court order dated 14th August 2002 submitted report through Assistant Commissioner on

12.5.2003, informing the trial court that the landed property (14 kanals and 6 marlas) to be handed over to the respondent No. 1/plaintiff stood

alienated in favour of a third party-stranger to the suit.

The appellant's application for recall of order dated 29th March 2002 did not find favour with the trial court. The trial court was of the opinion

that it was for respondent No. 1/plaintiff to work out her remedy in context of the report of the Tehsildar dated 12.5.2003 after final decree was

passed. The application was accordingly dismissed by trial court vide order dated 18th August 2003.

The Trial Court directed Commissioner to go on spot and submit a fresh scheme for partition of suit property. The Commissioner went on spot

and submitted his report on 17th November 2003. The appellant filed objections to the Commissioners' report complaining that the Commissioner

did not issue notice to the appellant at the time he went on spot and that Commissioner submitted a scheme of partition with regard to a house

situated at Natipora erected on land falling under survey No. 1408 not subject matter of the suit, and that Commissioner failed to report that a part

of the suit property was in possession of one Bakhtawar a trespasser on the suit property.

The Trial Court did not find any merit in the objections filed by appellant and passed final decree on 26th February 2004. The Trial Court

directed, the report of the Commissioner and the site plan to form part of the decree. It also directed that out of 84 kanals and 14 marlas,

respondent No. 1/plaintiff was entitled to get 14 kanals.

The final judgment and decree dated 26th February 2004 were questioned by the appellant in an appeal being CIA No. 52/2004 before this

court on the grounds set out in the memo of appeal. The appellate court did not find any merit in the appeal and held the judgment and decree not

to suffer from any error or legal infirmity. The appeal was accordingly dismissed vide judgment decree dated 18th July 2006.

The judgment and decree of appellate court is called in question in LPA on hand, on the grounds that the court has failed to appreciate that

even when preliminary decree in partition suit is not challenged by the appellant, yet the appellant would be at liberty to question the final decree

and judgment on the ground, that steps taken subsequent to the preliminary decree are not in accordance with law. It is next urged that as

Commissioner's report does not include the partition scheme in respect of 6 kanals of land reported to be in unauthorized occupation of one

Bakahtawar, the report is incomplete and could not have been acted upon by the Trial Court. This aspect of the matter is said to have escaped

attention of the appellate court. The appellate court is said to have failed to notice that as per the report of the Tehsildar, 14 kanals of land

determined as share of respondent No. 1/plaintiff stood alienated before preliminary decree was passed.

The report submitted by Commissioner, according to appellant did not deserve to be acted upon inasmuch as Commissioner failed to issue

notice to the appellant and other co-sharers while visiting the spot and did not associate them with the spot inspection. The objections filed by the

appellant to the Commissioners report are said to have not been considered by the Trial Court while passing judgment and decree. It is pleaded

that Commissioner failed to consider the equalization of shares and the Trial Court as well as appellate court ignored this aspect of the matter.

It is next urged that as respondent No. 1/plaintiff failed to bring on record legal representatives of the defendants of Mst Jana Bibi and

Mohammad Rajab Bhat, the Trial Court judgment and decree were liable to be set aside. The appellate court is said to have held the legal

representatives to have been taken on record, without examining the record and without making an effort to find out the date of death of deceased

defendants and date the application to bring on record their legal representatives were filed by respondent No. 1/plaintiff.

We have gone through memo of appeal, the appellate Court judgment called in question in the appeal as also the appellate Court and trial

Court record. We have heard learned counsel for the parties at length.

The appellate Court judgment is questioned on the same grounds as were urged before the Trial Court and thereafter the appellate Court. The

main plank of appellant's case is that Commissioner's report, in the attending circumstances did not deserve to be accepted much less made basis

for the final judgment and decree. Trial court as well as an appellate Court are said to have failed to appreciate that the property beyond suit

property was included in the Commissioner's report while part of the property forming subject matter of the suit was left out by the Commissioner.

Reference in this regard is made to house at Natipora, and land in possession of one Shri Bakhtawar. The Commissioner's report, according to the

appellant, did not deserve to be acted upon also on the ground of his failure to issue notice to the appellant and other co-sharers and associate

them with the spot inspection and proposed partition. The next ground urged relates to failure of respondent No. 1 to bring on record legal

representative of the deceased defendants. Failure of Commissioner to make an exercise for equivalence of shares is also made basis of challenge

to concurrent judgments of the trial Court and the appellate Court.

The appellant, as rightly pointed out by the appellate Court, failed to question preliminary decree dated 16.7.1997. It needs no emphasis that

as the preliminary decree determines the rights of the parties failure on part of either of the parties to question preliminary decree, stands in way of

such party to assail the final judgment and decree. Appellant by not filling an appeal against the preliminary decree, is presumed to have accepted

the trial court verdict on rights of the parties viz-a-viz the suit property. In other words, the appellant is taken to have accepted that the respondent

No. 1/plaintiff, was entitled to 14 kanals and 6 marlas out of suit property and to have right to its possession as also right to have her share in rest

of the suit property including three storied house with four shops and land appurtenant and underneath thereto in accordance with the finding

returned on issue No. 8 in the suit. Learned Appellate Court has rightly referred to Section 97 of Code of Civil Procedure, to conclude that in the

facts and circumstances of the case and in particular failure of appellant to throw challenge to preliminary decree, the preliminary decree has

attained finality and therefore become beyond challenge.

The plea that the Commissioner has failed to associate parties to the proceedings before him, is without merit. To question Commissioner's

report, this ground was urged before the trial Court and the trial Court on perusal of the record, held the Commissioner too have issued notice to

all the parties except respondent No. 1, who chose not to appear before the Commissioner to facilitate proceedings before him. There is no reason

to disagree with the conclusion arrived at by the Commissioner in this regard moreso, when trial Court had advantage to go through the record

relevant to the controversy and appellate court have recorded a categoric finding against appellant in the judgment.

The ground urged in the memo of appeal regarding inclusion of property other than suit property in the partition suit and exclusion of part of

property as detailed in the plaint, is not to be accepted for the reason that the trial Court returned a clear finding that house at Natipora is very

much part of the suit property and finds mention in para 9- C of the plaint.

There is no reason to overset the finding recorded by the trial court that as regards land in possession of one Bhakthawar claimed to be part of

the suit property, yet not taken into account by the Commissioner is palpably wrong and un-acceptable as neither the land in question is included in

the suit property nor Sh. Bhakthawar is arrayed as party respondent to the suit.

Failure of Commissioner to undertake the exercise of equalization of shares is not to be fatal to the Commissioner's report. Equalization is a

tool available to the Commissioner where the Commissioner confronts the difficulty in carrying out his mandate to partition the property. In such

case, shares are balanced or equalized between parties. In case commissioner did not find it necessary to press into service the tool, the report

would not be reduced to a nullity. In the present case, Commissioner was not confront with the situation that would warrant equalization of shares.

The omission to make use of equalization of shares, therefore, would not render the Commissioner's report unacceptable and persuade the court to

reject the Commissioner's report.

In the circumstance, and for the reasons discussed, there is no merit in any of the grounds urged in the memo of appeal to question the trial

Court and appellate court judgments. Letters Patent Appeal is dismissed accordingly.