Koka @ Ramu Oraon vs Madia Orain and Others

Gurusharan Sharma, J.—Opposite Parties 1 to 3 had filed Partition Suit No. 25 of 1975, which was decreed on 20.10.1982. None of the parties to the suit preferred any appeal and the said preliminary decree became final.

However, the petitioner, who was admittedly a co-sharer, was not made party in the said suit and, therefore, he filed Partition Suit 236 of 1987 for setting aside the aforesaid preliminary decree dated 20.10.1982 and asked for a fresh preliminary decree in respect of the suit property. This suit was also decreed on 28.9.1994 and consequently earlier preliminary decree dated 20.10.1982 was set aside.

Opposite parties 1 to 3, who were defendants in the 1987 suit preferred First Appeal No. 131 of 1994(R).

During pendency of the said appeal, on account of amicable settlement, petitioner got adjustment of share and thereafter filed petition dated 18.7.1998 (Annexure 1) in the appeal for withdrawal of the suit.

Rejoinder thereto (Annexure 2) was filed on 21.8.1998 by opposite parties 4 to 7 stating therein that they acquired substantive right by virtue of preliminary decree passed in the present suit.

It is not in dispute that according to the preliminary decree passed in both the suits, their half share in the suit property was maintained and by virtue of final decree passed in the earlier suit, they also obtained possession over the patti allotted in respect of their half share, through process of the Court.

In the aforesaid circumstance, it was not correct to say that opposite parties 4 to 7 acquired any such substantive right, which was in any manner different from the earlier determinations made in the previous suit. Even there was no chance in their share.

In this view of the matter. I set aside the impugned order and remit the matter to the first appellate Court to dispose of appeal and pass appropriate orders on the petition (Annexure 1) in accordance with law.

This Revision application is, accordingly, disposed of.

Revision disposed of.