Parmeshwari vs Kauri

M.M. Punchhi, J. (Oral)

This is a cantankerous dispute having a long chequered history and since I intend to exercise my inherent powers under section 151 of the Code of Civil Procedure, a more than the ordinary detail of facts would be necessary.

One Dewan had two sons by the name of Bishna and Ram Saran. Prior to 1966, a parcel of land measuring 298 Kanals 17 Marlas and other ancillary properties in the form of houses and plots situated in village Dara Khurd, Tehsil Thanesar, District Kurukshetra, were owned by the aforesaid Bishna and Ram Saran; Bishna having 2/3rd share therein and Ram Saran having the remaining 1/3rd share. Bishna, however, in the meantime died and his estate stood devolved in the name of his son Narata, his other son Mangta and Smt. Kauri, widow of still another son Kartara, in equal shares. Prior to his death, Ram Saran was in joint occupation of the entire land with Narata, Mangta and Smt. Kauri. The cultivation of the entire area was joint and the holding was shown in the revenue papers to be as possessed by the cosharers. Ram Saran died in the year 1966. And this was the beginning of the dispute. Narata claimed the estate of Ram Saran on the basis of a Will. Smt. Parmeshwari, as daughter claimed it on the basis of inheritance. The suit, however, was instituted by Smt. Parmeshwari seeking possession of 1/3rd share in the entire holding. She, however, impleaded in the suit only Narata as the defendant. The suit had a chequered history. At one stage, it was decided before this Court on the basis of a compromise whereby Narata was required to pay Parmeshwari a sum of Rs. 15,000/ and in the event of his failure to do so, the suit had to stand decreed. And, on his failure to do so, the suit for possession was decreed. Narata took the matter to the Supreme Court and there the controversy between him and Smt. Parmeshwari was settled by way of compromise and a preliminary decree was passed on July 27, 1984, in the following terms :

(1) The appellant (Narata) shall get 1/3rd of the suit property and the respondent (Smt Parmeshwari) shall get 2/3rd of the suit property.

(2) The respondent shall refund the amount of Rs. 10,000/ (Rupees ten thousand only) paid by the appellant under the compromise decree passed by the High Court at the time when 2/3rd of the suit property is handed over to her pursuant to the final decree to be passed.

(3) The trial Court shall appoint a Commission to effect the equitable partition of the suit property between the parties in accordance with the preliminary decree. The partition shall be effected and parties shall be put in possession of their share of the suit property expeditiously preferably within four months from today.

(4) There shall be no liability to mesne profits till today. The appellant shall, however, pay to the respondent mesne profits with effect from today which shall be determined by the trial Court.

The trial court then on October 19, 1984, appointed the Tehsildar (Revenue) Thanesar as Local Commissioner for effecting equitable partition of the suit property between the parties in accordance with the preliminary decree passed by the Supreme Court. It is at that point of time that Smt. Kauri, widow of Kartara, one of the cosharers, woke up. She filed an application for being made a party to the suit, but her prayer was declined. She even agitated before this Court that she ought to have been made a party to the suit but to no avail. Even the Tehsildar, Thanesar, Local Commissioner did not associate her in determining the mode of partition, on the premises that the parties to the suit were only Smt. Parmeshwari and Narata and that the suit land only had to be equitably partitioned. The Local Commissioner then finally prepared his report whereby he proposed 66 Kanals 7 Marlas of land in specific killa numbers to be given to Smt. Parmeshwari. That report was accepted by the trial Judge and then final decree was drawn on December 17, 1984, in accordance therewith.

In execution of the final decree, Smt. Parmeshwari sought possession of those 66 Kanals 7 Marlas of land. This time Smt. Kauri again objected to the execution of the decree. The executing Court took the view that the partition was inter se between Smt. Parmeshwari and Narata and that it was subject to change in case of regular and final partition of the entire holding (khewat). In other words, its view was that in the nature of things, the partition between Smt. Parmeshwari and Narata was temporary in nature and could always be upset when the time for partition of the entire holding was to come. The objection petition of Smt. Kauri was thus dismissed. On the dismissal of the objection petition on December 7, 1984, Smt. Kauri approached this Court in Civil Revision No. 3279 of 1984 which was dismissed in limine on December 17, 1984. Smt. Kauri took the matter further to the Supreme Court in Special Leave Petition. Their Lordships passed the following order on April 2, 1985 :

"We are not supposed to interfere in this matter. The petitioner is right in his contention that he was not a party to the judgment delivered by the Court and has been adversely affected thereby. It is open to the petitioner to apply to the Court for appropriate relief. The matter is dismissed with this observation."

Smt. Kauri instead of applying to the executing Court for appropriate relief, as directed by the Supreme Court, filed a suit for permanent injunction, restraining Smt. Parmeshwari from taking possession of any portion of the suit land without getting the same regularly partitioned by metes and bounds. Simultaneously she preferred an application praying for an ad interim injunction restraining Smt. Parmeshwari to execute the final decree. The suit as also the application was contested by Smt. Parmeshwari. In the written statement, Smt. Parmeshwari took the specific plea that she had no objection to the joint holding being partitioned, but she otherwise asserted her right to obtain possession of 66 Kanals 7 Marlas of land in accordance with the final decree passed in the first suit. The ad interim injunction was refused by the Court of first instance but the lower appellate Court granted the interim injunction, holding that in the absence of regular partition between all the cosharers. Smt. Parmeshwari could not be given actual possession of 66 Kanals 7 Marlas of land to the exclusion of other cosharers. However, she was held entitled to get symbolical possession thereof in pursuance of the final decree dated December 17, 1984, which was operative against Narata only. Thus, the executing Court concededly delivered symbolical possession of 66 Kanals 7 Marlas to Smt. Parmeshwari. Aggrieved against that order, Smt. Parmeshwari has filed the present revision petition.

It is asserted by the learned counsel for the petitioner that Smt. Kauri herself is an old widow over 100 years of age and her cause has been propped by Narata who is out to obstruct the orders of the Supreme Court. Further, it has been maintained that Narata alone was in possession of the entire joint holding and it is not only on the strength thereof but on the confidence of his possession that he had settled the matter before the Supreme Court by getting passed a consent preliminary decree. Therein he had specifically agreed to transfer actual possession of 2/3rd share of land to Smt. Parmeshwari out of the estate left by her father. Though her claim is now opposed by Mr. V.K. Jain, learned counsel appearing for Smt. Kauri, but there is no opposition either from Narata or from the natural heirs of Mangta, the third cosharer. Rather learned counsel appearing for the natural heirs of Mangta laments that it is Narata alone who is in possession of the property and that the share of Mangta also stands usurped by him in a similar manner as he did with regard to the share of Smt. Parmeshwari. Under these circumstances, it has been contended on behalf of the petitioner that the lower appellate Court should not have interfered with the well reasoned order of the trial Judge. The argument is countered by the learned counsel for Smt. Kauri by contending that this Court should not interfere in revision in a matter like the present one, when it was purely discretionary for the lower appellate Court to have either affirmed or reversed the decision of the trial Judge.

As I have indicated in the opening sentence of the judgment, this dispute is not only cantankerous but defies any straight solution by the obstructive stances adopted by Smt. Kaurirespondent and Narata, though he is actually not here to oppose the revision petition. I have already indicated that I intend to employ inherent powers of this Court under section 151 of the Code of Civil Procedure to straighten the course in the ends of justice and to prevent the abuse of the process of the Court. Undeniably the relief of interim injunction is an equitable relief. The party coming to the Court must not come only with clean hands but if it seeks equity it must be prepared to do equity. It has specifically been put to learned counsel for Smt. Kauri that this Court can, on her concession, get regular partition effected and whatever land falls to the share of Smt. Parmeshwari, that land can be given to her even in partial modification of the final decree in the first suit and rested by way of a settlement. Learned counsel for Smt. Kauri insists that regular partition be carried out in the revenue Court and the injunction be confirmed as granted by the lower appellate Court. Now these state of affairs, for the sake of justice, I am not prepared to let continue. The Supreme Court had specifically said that Smt. Parmeshwari would get share of her land on partition between her and Narata and those two alone were the parties to the suit. Now Narata as a cosharer in the entire holding was perfectly entitled not only to settle the share, which Smt. Parmeshwari was to have in the joint holding, which settlement was personal to him, but had otherwise as a co sharer the right to concede partition being effected not only by himself but on behalf of the other cosharers also. That is the settled law. A cosharer represents the entire body of cosharers and he can, subject to the dispute of any title being not there, on their behalf, amongst other subjects, ask for partition. Now, in the interest of justice, I would deem that before the Supreme Court Narata while agreeing to a partition not only represented himself but Smt. Kauri his cosharer, as well as the heirs of Mangta, the remaining cosharers. The trial Judge in the first suit could, without any demur, have the entire holding partitioned and carve out not only a share for Smt. Parmeshwari but due shares for other heirs also. But as pointed out earlier, the trial Judge overlooked this factor and ignored the cross currents which were going underneath this litigous course and this has led to the abuse of the process of the Court, requiring adequate rectification at this end.

It is plain that even on the application of the aforeemployed rule, the trial Judge in the earlier suit has deemed the partition between Narata and Smt. Parmeshwari to be of a limited purpose; somewhat temporary, fully conscious that a final partition between the parties could not be ruled out at a future stage. Now, it appears to me, that in view of the litigated postures adopted by the respondent that time has arrived to effect regular partition between the cosharers, to effectuate not only the orders of the Supreme Court but also in public interest so that somewhere there is a stop to litigation. One has just to remind the oftquoted maxim: Interest reipublicae ut sit finis litium. Keeping that upper most in my mind, I would vary the orders of the lower appellate Court, requiring the trial Court to appoint the Tehsildar (Revenue) Thanesar as Local Commissioner again, who shall within a period of two months from his appointment, effect a regular partition between all the cosharers, prepare a report thereon and which on approval of the Court may form the basis of the disposal of the suit to effectuate substantial justice between the parties. Till that step is taken, there is obviously no reason for Smt. Parmeshwari to insist on actual physical possession of any land. This order shall substitute the interim orders of both the Courts below. Towards conclusion, it is clarified that should the plaint be dismissed or withdrawn by neglect or design by the plaintiffrespondent, then the written statement of Smt. Parmeshwari be taken as counterclaim for the purpose and it be decided as if a suit for partition, jurisdiction of which has, specifically by order of the Supreme Court, been conferred on the Civil Court. The trial Court shall mould the relief accordingly.

For the aforesaid observations, this judgment and order shall substitute the orders of the Court below. The petitioner shall have her costs. Parties through their learned counsel are directed to put in appearance before their trial Court in instant suit on November 5, 1985.