Ajimuddin Mondal & Ors. vs Rijia Bibi & Ors.

Sabyasachi Bhattacharyya, J.:-

A peculiar predicament has arisen for the parties.

The present appeal has been preferred against a preliminary decree of partition. The grievance of the appellants is primarily that the learned Trial Judge proceeded on the premise that there was an oral partition amicably arrived at between the heirs of one Fatik, the original owner of the property, and accordingly decided the suit, thereby curtailing the shares of the present plaintiffs/appellants.

Learned counsel appearing for the respondent no.1, on the other hand, who is a purchaser from some of the heirs of Fatik in respect of their purported demarcated shares, argues that the learned Trial Judge rightly proceeded on the basis of such oral/mutual arrangement between the heirs of Fatik, since such mutual partition is clearly reflected from the separate recording of the names of the heirs of Fatik in respect of different plot numbers.

Upon a perusal of the judgment and the materials on record, however, we find certain obstacles to the suit.

First, admittedly a previous partition suit bearing Title Suit No. 76 of 1967 was instituted on August 04, 1967 before the Court of the then Subordinate Judge at Krishnagar. The same culminated in a preliminary decree, whereby the shares of only the plaintiffs therein, the successors of Muhammad, one of the sons of Fatik, were declared. Admittedly, no challenge has yet been preferred to the said preliminary decree, thus, the said preliminary decree having attained finality.

However, the learned Trial Judge, in the present suit, reopened the issue of title and shares of the parties on the ground that no final decree was passed in the said suit.

Proceeding thus, the learned Trial Judge believed the oral agreement between the heirs of Fatik and declared the shares of the parties accordingly.

However, there are certain glaring errors in such approach of the learned Trial Judge.

From the narrative of the impugned judgment itself, we find that there were four previous suits between the co-sharers.

The first suit was a partition suit bearing Title Suit No. 76 of 1967, which we have referred to above. There were two other suits, bearing Title Suit No. 282 of 1976, culminating in Title Appeal No. 22 of 1982, and Title Suit No. 146 of 2003, culminating in Title Appeal No. 25 of 2013, which were suits for permanent injunction and, as such, there was no question of the title of the parties being declared therein.

A fourth suit bearing Title Suit No. 5 of 1985, renumbered as Title Suit No. 10 of 1998, was also a suit for partition which was ultimately not pressed by the parties therein. Since partition is a continuing cause of action, the dismissal of Title Suit No. 5 of 1985 as not-pressed does not give rise to a bar under Order IX Rule 9 of the Code of Civil Procedure per se.

Thus, the other three suits, apart from Title Suit No. 76 of 1967, do not have any bearing or operate as res judicata insofar as the title of the parties is concerned.

However, the preliminary decree passed in Title Suit No. 76 of 1967 crystallized the shares of the parties in terms of the said decree. A preliminary decree, it may be noted, is as conclusive as a final decree, the difference being that in case of the former, something further is required to be done to conclude the suit whereas in case of the latter, the suit itself is disposed of. However, such distinction does not create any difference, insofar as the conclusive and binding effect is concerned, between a preliminary and a final decree, both conclusively deciding the right, title and interest of the parties.

Thus, by dint of the preliminary decree passed in Title Suit No. 76 of 1967, the title of the co-shares attained finality, irrespective of whether any final decree was passed on the basis of such preliminary decree.

Hence, the current suit, also for partition, which implicitly includes the prayer for declaration of title of the parties, was clearly barred by the principle of res judicata.

Insofar as the final decree proceedings in the present suit is concerned, the same would also be barred by the principle of Order II Rule 2 of the Code of Civil Procedure, since the parties could very well have sought final decree proceedings to be initiated in connection with the earlier partition suit bearing Title Suit No. 76 of 1967, which reached the stage of preliminary decree.

That apart, the acceptance of the learned Trial Judge in the present case regarding there being an earlier mutual partition between the parties is also violative of the principle of res judicata, along with constructive res judicata, since the predecessors-in-interest/vendors of the present respondent no.1, who were some of the heirs of the original owner Fatik, had not raised such question at any point of time in the previous suit and the title and shares of the parties were declared without referring to any such mutual partition.

Moreover, there cannot be a partition of their shares inter se between only some of the co-owners of a property. Even if a selective few of the co-shares effect a partition between themselves, the other omitted co-owners in the total property would still have right, title and interest in every inch of the property which is purportedly so partitioned. Thus, such partition, amicable or otherwise, would itself be barred by law and not have any effect of separating or segregating the subject-matter of such purported amicable partition.

Be that as it may, since the question of amicable partition between the heirs of Fatik was not raised in the earlier suit by the vendors of the respondent no.1, the learned Trial Judge palpably erred in law in accepting such proposition, thereby reopening the preliminary decree which already attained finality in connection with Title Suit No. 76 of 1967.

The remedy of the parties would thus lie in approaching the Court in connection with Title Suit No. 76 of 1967, for effecting a final decree in respect thereof.

In the alternative, subject to the question of limitation, if the parties have any grievance regarding such preliminary decree, it would also be open to the parties to prefer an appropriate challenge against such preliminary decree. However, fact remains that the present suit was not maintainable in view of operation of the principles of res judicata (insofar as the title and shares of the parties are concerned) and the impugned judgment and decree is also vitiated by the doctrine of constructive res judicata (inasmuch as the plea of amicable partition is concerned).

Accordingly, the impugned judgment granting preliminary decree cannot be sustained. Hence, we are inclined to set aside the same, but on different grounds than pleaded by the appellants, simultaneously dismissing the suit itself.

Accordingly, FA 126 of 2023 is allowed on contest against the respondent no.1 and ex parte against the other respondents, thereby setting aside the impugned judgment and preliminary decree dated August 26, 2022 passed by the learned Civil Judge (Senior Division), Second Court at Krishnagar, District: Nadia in Title Suit No. 293 of 2014 and dismissing the said suit as well, as not maintainable, being hit by the principles of res judicata and constructive res judicata.

However, it is made clear that the above judgment and/or dismissal of the title suit shall not preclude the parties to approach the Court taking up Title Suit No. 76 of 1967 for seeking a final decree of partition in terms of the preliminary decree passed therein.

It will also be open to the parties, subject of course to the law of limitation, to challenge the preliminary decree passed in Title Suit No.76 of 1967, if they are otherwise entitled to do so in law and are aggrieved thereby.

We further add that in the event the said suit, bearing Title Suit No. 76 of 1967, has already been disposed of, it will be open to the parties to take appropriate steps in that regard before the appropriate court.

Interim order, if any, stands vacated.

There will be no order as to costs.

A formal decree be drawn up accordingly.

I agree.