Sonaban Khatun and 9 Ors. Vs Daliman Bibi and 11 Ors.

For the Appellant(s) : Ms. R. Choudhury, Advocate : Ms. B. Hazarika, Advocate For the Respondent(s) : Mr. A. R. Sikdar, Advocate Date of Hearing : 03.06.2025 Date of Judgment : 03.06.2025

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BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH

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JUDGMENT AND ORDER (ORAL)

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Heard Ms. R. Choudhury, the learned counsel appearing on behalf of the appellants and Mr. A. R. Sikdar, the learned counsel appearing on behalf of the respondent No.1. None appears on behalf of the other respondents on call.

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This is an appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for short ‘the Code’) challenging the judgment and decree dated 10.05.2024 passed by the learned District Judge, Bongaigaon (hereinafter referred to as the learned First Appellate Court) in Title Appeal No.6/2022 whereby the appeal was dismissed affirming the judgment and decree dated 07.03.2019 passed by the learned Civil Judge, Bongaigaon (hereinafter referred to as the learned Trial Court) in Title Suit (P) No.31/2014.

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It is seen from the records that vide an order dated 30.08.2024, the learned Coordinate Bench of this Court had admitted the instant appeal by formulating three substantial questions of law which are reproduced herein

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under:

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“(i) Whether, the judgment and preliminary decree dated 07.03.2019 is at all passed in accordance with Mohammedan Law giving 50% share to the only daughter/plaintiff in presence of her 4 (four) brothers whereas as per Mohammedan Law her specified share is 1/9^th only over the total property of late Sahar Ali, her predecessor?

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(ii) Whether the learned first appellate Court is correct in dismissing the first appeal of the defendants against preliminary decree on the point of delay whereas the delay was already condoned vide order dated 18.07.2022 in Misc. Case No.09/2022?

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(iii) Whether the learned first appellate Court committed wrong by misunderstanding and by misinterpreting S/97 and as such the judgment and decree dated 10.05.2024 is not at all sustainable in the eye of law?”

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Before deciding the three substantial questions of law, it is apposite herein to take note of that the learned First Appellate Court vide the impugned judgment and decree 10.05.2024 did not decide the appeal on any other aspects except on the question of maintainability of the appeal in view Section 97 of the Code. The learned counsel appearing on behalf of the appellants submitted that inadvertently, the first two substantial questions of law so formulated by this Court was proposed though the learned First Appellate Court had only dismissed the appeal on the ground of maintainability. She therefore submitted that taking into account the learned First Appellate Court had dismissed the appeal under Section 97 of the Code, the third substantial question of law so formulated should be construed as the sole substantial question of law framed in the present proceedings. In addition to that, the learned counsel further submitted that as regards the

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first substantial question of law so formulated, a ground of objection has already been taken in the memo of appeal preferred before the learned First Appellate Court which was however not taken into consideration while dismissing the appeal on the ground of being not maintainable.

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In the backdrop of the submissions made, this Court would deal with the substantial questions of law so formulated by the learned Coordinate Bench of this Court vide its order dated 30.08.2024. This Court further finds it relevant to take note of that in view of the submission so made by the learned counsels appearing on behalf of the parties, the third substantial question of law would be taken up first for disposal and depending upon the decision in the third substantial question of law, the other two substantial questions of law so formulated would be decided.

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Taking into account the above, this Court finds it relevant to take note of the brief facts which led to the filing of the instant appeal.

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For the sake of convenience, the parties herein are referred to in the same status as they stood before the learned Trial Court.

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The respondent No.1 herein as plaintiff had instituted a suit being Title Suit (Partition) No.31/2024 seeking a declaration that the plaintiff is entitled to get 50% of the share of the suit land and the premises specifically described in the schedule to the plaint; for a preliminary decree for partition of the suit property and to provide 50% share to the plaintiff; to issue a commission appointing the Collector, Bongaigaon to partition the 50% share of the plaintiff and for separate possession; for a final decree embodying the Commissioners Report, etc.

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The facts as pleaded in the suit is that the father of the plaintiff and the father-in-law/grandfather of the defendants during his lifetime was the sole owner and exclusive possessor of a total plot of land admeasuring 10 Bighas 3 Kathas 5 Lechas covered by Dag No. 181 and 182 of Periodic Patta No.75 situated at village Naldoba under Dangtol Revenue Circle at Bidyapur (then Sidli Revenue Circle, Sidli) Mouza Sidli Part-I in the district of Bongaigaon. The father of the plaintiff expired long back in 1976 and his wife Jamila Khatun predeceased him leaving behind the plaintiff as the sole daughter and four sons as the legal heirs. It was specifically stated that there was no partition done and the property stands as it was during the lifetime of the father of the plaintiff. It was further alleged that the four brothers of the plaintiff namely Sahar Ali, Jonu Ali, Jaynal Sk and Manu Sk expired leaving behind their legal heirs who have been impleaded as the defendants in the suit.

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The entire suit land admeasuring 10 Bighas 3 Kathas 5 Lechas was under the possession of the legal heirs of Late Sahar Ali, the defendant Nos. 1 to 10 and only in a small portion of the suit land, the plaintiff was residing along with her other family members. It was further alleged that as per the Muslim law of Inheritance, the plaintiff is entitled to 50% share of the suit land being the only surviving lineal descendant of Late Saheb Ali Sk but the defendant Nos. 1 to 10 being the legal heirs of Late Sahar Ali are not agreeable to give their share to the plaintiff and they are trying to grab the suit land by depriving the plaintiff from her legitimate 50% share in the suit land that accrued at the death of her father and being the only surviving legal descendant. It is under such circumstances the suit was filed seeking the reliefs as above mentioned.

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The defendant Nos. 1 to 10 who are the appellants herein, filed written statement wherein they denied to the claim of the plaintiff that she is entitled to 50% of the share of the suit land. It was further mentioned that that on 17.09.1971, Sahar Ali (since deceased), Jonu Ali (since deceased), Jaynal Sk (since deceased) and Manu Sk (since deceased) executed a family settlement agreement wherein Jonu Ali (since deceased), Jaynal Sk (since deceased) and Manu Sk (since deceased) relinquished their right, title and interest from the suit land. Further, Jonu Ali (since deceased), Jaynal Sk (since deceased) and Manu Sk (since deceased) exchanged their share of the land with a plot of land admeasuring 4 Bighas 2 Kathas 5 Lechas which was the land of Late Sahar Ali, the predecessor-in-interest of the answering defendants. The predecessor-in-interest of the answering defendants was absolute owner and possessor of the said plot of land admeasuring 4 Bighas 2 Kathas 5 Lechas and after the said family settlement, Jonu Ali (since deceased), Jaynal Sk (since deceased) and Manu Sk (since deceased) have been possessing the aforesaid plot of land admeasuring 4 Bighas 2 Kathas 5 Lechas. It was further stated that the plaintiff's share was 1/9^th and the plaintiff was given her share of land and she is therefore not entitled to any other area of the land.

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The defendant Nos. 11 to 13 had also filed a written statement who supported the case of the plaintiff. The defendant Nos. 16 filed a written statement supporting the case of the plaintiff. On the basis of the pleadings, the learned Trial Court framed as many as 7 (seven) issues which are reproduced herein under:

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“1. Whether there is cause of action for the suit?

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Whether the suit is undervalued?

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Whether the plaintiff has right, title, interest over the suit-land?

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Whether the plaintiff is entitled to get 50% share in the scheduled properties?

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Whether an alleged partition of the suit properties took place on 17/09/1971 during the lifetime of Sahar Ali between Sahar Ali, Jonu Ali, Jaynal Sk and Manu Sk and whether in such family settlement Jonu Ali, Jaynal Sk & Manu Sk relinquished their right over the suit-land and said Jonu Ali, Jaynal Sk & Manu Sk exchanged land measuring 4B-2K-5L with Sahar Ali in lieu of the suit land?

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Whether the plaintiff is entitled to a decree as prayed for?

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To what relief/reliefs the plaintiff may be entitled to?”

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On behalf of the plaintiff, three witnesses were examined and certain documents were exhibited. On behalf of the defendants, two witnesses were examined but no documents were exhibited. The learned Trial Court vide a judgment and decree dated 07.03.2019 passed a preliminary decree. It is relevant to take note of paragraph Nos.32 and 33 of the said judgment and order passed by the learned Trial Court and the same are reproduced herein under.

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“32. In view of the above discussions and the decisions reached herein above the suit of the plaintiff is decreed on contest without cost declaring that the plaintiff has right, title, interest and possession over the suit land, which is specifically described in the Schedule of the plaint. It is also declared that the plaintiff is entitled to get 50% share from the suit land, which is specifically described in the Schedule of the plaint.

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Preliminary decree be prepared and thereafter precept be send to the Deputy Commissioner, Bongaigaon for partition of the suit land, which is specifically described in the Schedule of the plaint. And after received of the report with regard to partition of the suit land from the Deputy Commissioner, Bongaigaon, final decree be prepared.”

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From the above quoted portion of the judgment and decree passed by the learned Trial Court i.e. the Court of the learned Civil Judge, Bongaigaon, it was decreed that the plaintiff is entitled to get 50% share from the suit land which have been specifically described in the schedule to the plaint. The learned Trial Court further passed a preliminary decree thereby issuing a precept to the Deputy Commissioner, Bongaigaon for partition of the suit land which have been specifically described in the schedule of the plaint. It was also mentioned that after receipt of the report with regard to the partition of the suit land from the Deputy Commissioner, Bongaigaon, the final decree would be prepared.

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The materials of the record reveals that on the basis of the preliminary decree so passed, precept was issued to the Deputy Commissioner, Bongaigaon to carry out the partition and accordingly the Deputy Commissioner, Bongaigaon submitted the report and on the basis thereof, the learned Trial Court passed the final decree on 22.02.2022. The record further reveals that on 28.03.2022, the appellants herein who were the defendant Nos. 1 to 10 preferred an appeal challenging preliminary decree granted by virtue of the judgment and decree dated 07.03.2019 along with an application for condonation of delay under Section 5 read with Order XLI Rule 3A of the Code. The application for condonation of delay was registered and numbered as Misc. Case No.9/2022. The said application was allowed

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vide an order dated 18.07.2023 thereby condoning the delay of 356 days. On the very date, the appeal being Title Appeal No.6/2022 was admitted for hearing.

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The learned First Appellate Court i.e. the Court of the learned District Judge, Bongaigaon vide the impugned judgment and decree dated 10.05.2024 dismissed the appeal solely on the ground that in view of Section 97 of the Code, the appeal so filed challenging the preliminary decree was not maintainable on the ground that prior to filing of the appeal, the final decree was passed on 22.02.2022. It is under such circumstances, the present appeal has been preferred.

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In the backdrop of the above, let this Court now take note of the third substantial question of law so formulated by the learned Coordinate Bench of this Court as to whether the learned First Appellate Court committed an error by misunderstanding and by misinterpreting Section 97 of the Code for which the judgment and decree dated 10.05.2024 is not sustainable in the eye of law.

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Ms. R. Choudhury, the learned counsel appearing on behalf of the appellants submitted that a perusal of Section 97 of the Code would show that if any party aggrieved by a preliminary decree passed after the commencement of the Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree. The learned counsel therefore submitted that from the language so employed in Section 97 of the Code, there is a bar to challenge the findings in the preliminary decree if there is no appeal preferred against the preliminary decree. The learned counsel therefore

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submitted that the appeal having been preferred against the preliminary decree so passed vide the judgment and decree dated 07.03.2019 could not have been dismissed on the ground of the bar contained in Section 97 of the Code. The learned counsel referred to the judgment of the Supreme Court in the case of Selvi Vs. Gopalakrishnan Nair (Dead) through Lrs. reported in (2018) 7 SCC 319 as well as the Full Bench judgment of the Rajasthan High Court in the case of Haridas Vs. Banshidhar reported in AIR 1962 (Raj) 57 .

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The learned counsel for the appellants further strenuously argued that the Full Bench of the Rajasthan High Court directly dealt with this issue and observed that an appeal preferred against a preliminary decree would be competent even if a final decree had been made before the appeal was presented.

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Per contra, Mr. A. R. Sikdar, the learned counsel appearing on behalf of the respondents submitted that the words used in Section 97 of the Code categorically mentioned that if there was no challenge to the preliminary decree prior to making of the final decree, there can be no appeal preferred against the preliminary decree. The learned counsel further submitted that once the final decree is passed, a challenge to the preliminary decree is impermissible. In that regard, the learned counsel has referred to the judgment of the Supreme Court in the case Phoolchand and Another Vs. Gopal Lal reported in AIR 1967 SC 1470 and referred to paragraph No.7 of the said judgment. The learned counsel further referred to another judgment of the Supreme Court in the case of Mool Chand and Others Vs. Deputy Director, Consolidation and Others reported in (1995) 5 SCC 631 and referred to paragraph No.30. In addition to that, the learned counsel further referred

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to the judgment of the learned Coordinate Bench of this Court in the case of Tapan Kumar Bhattacharjee Vs. Ratan Kr. Bhattacharjee and Others reported in AIR 2004 GAUHATI 27.

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This Court have given an anxious consideration to the respective submissions so made by the learned counsels appearing on behalf of both the parties and have also taken note of the said judgments so referred to.

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Before proceeding with the adjudication on the substantial question of law taken up for deliberation, it is relevant to take note of Section 97 of the Code which is reproduced herein under:

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“ 97 . Appeal from final decree where no appeal from preliminary decree

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Where any party aggrieved by a preliminary decree passed after the commencement of this Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree.”

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From a perusal of the above quoted Section, it would be seen that where any party aggrieved by a preliminary decree passed after the commencement of this Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree.

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At this stage, this Court finds it relevant to take note of Section 2(2) of the Code which defines the term ‘decree’ to mean the formal expression of an adjudication which so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may either be a preliminary or a final decree. A further perusal of the Explanation to Section 2(2) of the Code stipulates that

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a decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of and it would be final when such adjudication completely disposes of the suit. It also stipulates that a Court may pass a decree which is partly preliminary and partly final. Taking into account the definition contained in Section 2(2) read with Section 96 of the Code, it is seen that an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decision of such Court. Therefore, in terms with Section 96, an appeal can be preferred against the preliminary decree or also against the final decree. It is further relevant to take note of that a preliminary decree under the Code determines finally various questions in connection with suits based on accounts, mortgages, partitions, partnerships etc. On the basis of such adjudication being carried out in respect to the preliminary decree by the Court, the final decree is prepared. The adjudication so made by the preliminary decree cannot be termed as an interlocutory order inasmuch as the said adjudication is final so far as the parties are concerned.

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Therefore, in a suit for partition or a mortgage or accounts or partnership, the function of the final decree is merely to restate and apply with precision what the preliminary decree had ordained. It is also the opinion of this Court that the final decree so passed in a suit for partition where a preliminary decree has been passed becomes dependent on the preliminary decree and if the preliminary decree is interfered with, the final decree is superseded.

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In the backdrop of the above, if the provisions of Section 97 of the Code is taken note of, it would be seen that if the preliminary decree is not

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assailed, the final decree is so prepared on the basis of the preliminary decree, the findings made in the preliminary decree cannot be assailed. However, Section 97 of the Code in the opinion of this Court does not bar a challenge to the preliminary decree and what it does, is only that it bars disputing the correctness of the preliminary decree in respect to the issues adjudicated finally in the judgment and order leading to the preliminary decree if it remains unchallenged. The observations so made hereinabove by this Court is supported by the judgment of the Five Judges of the Calcutta High Court in the case of Talebali Vs. Adbul Aziz reported in AIR 1929 Cal 689 wherein the Full Bench of the Calcutta High Court speaking through Chief Justice Rankin categorically answered that an appeal from a preliminary decree is not incompetent if a final decree is made before the appeal is presented. The relevant portion of the said judgment is reproduced herein under:

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“It appears to be that, in this matter, we should take our stand upon the express provisions of the Code and refuse to read into the Code qualifications and conditions of which it contains no sign. I respectfully adopt the language of Chamier J. in Kanhaiyalal’s case (2). “The Code gives a right of appeal against a preliminary decree and further provides that where any party aggrieved by a preliminary decree passed after the commencement of this Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree. It seems to me that we are not at liberty to read into the Code any provision to the effect that the passing of the final decree shall be a bar either to the institution or the hearing of any appeal against the preliminary decree.” I would add that when a preliminary decree is set aside, the final decree is superseded, whether the appeal was brought before or after the passing of the final decree and that, in my judgment, an appellate court, when setting aside or varying a preliminary decree, can, and indeed should give

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directions for the setting aside or varying of the final decree, if the existence of the final decree is brought to its notice, as in all cases it ought to be....”

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It is relevant to take note of that taking into account the Assam High Court Order, 1948, the judgment of the Full Bench of the Calcutta High Court passed in the year 1929 would be a binding precedent upon this Court. This Court also finds it relevant to take note of another judgment of the Full Bench of the Rajasthan High Court in the case of Haridas (supra) wherein a similar opinion have also been expressed as regards maintainability of the appeal against a preliminary decree after the final decree has been passed.

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This Court further observes that the judgment referred to by the learned counsel for the respondents herein is not in respect to the question involved and as such, the same are not applicable.

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Considering the above, this Court therefore is of the opinion that the third substantial question of law is duly involved in the instant appeal.

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Now let this Court take note of the second substantial question of law. In the opinion of this Court, the second substantial question of law which relates to whether the learned First Appellate Court was correct in dismissing the first appeal of the defendants against preliminary decree on the point of delay whereas the delay was already condoned vide order dated 18.07.2022 in Misc. Case No.09/2022 is not at all involved in the instant appeal taking into account that the learned First Appellate Court dismissed the appeal only on the ground of Section 97 of the Code.

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In respect to the first substantial question of law, it has been submitted at the bar that in the ground of objection taken in the memo of

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appeal before the learned First Appellate Court, the issue as regards the respective shares of the parties in terms with the Mohammedan Law have been duly taken.

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This Court further takes note of that the appeal was dismissed by the learned First Appellate Court on the ground of maintainability and not on merits and consequently, this Court therefore is of the opinion that this is a fit case for setting aside the impugned judgment and decree dated 10.05.2024 passed in Title Appeal No.06/2022 and remand the appeal under Order XLI Rule 23A of the Code to the learned Court of the District Judge, Bongaigaon for deciding the appeal on merits.

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In that view of the matter, the instant appeal stands allowed with the following observations and directions:

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(i) The judgment and decree dated 10.05.2024 passed in Title Appeal No.06/2022 by the learned Court of the District Judge, Bongaigaon is set aside an quashed.

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(ii) This Court restores the appeal being Title Appeal No.06/2022 to the file of the learned Court of the District Judge, Bongaigaon and upon restoring, remands the appeal to the learned First Appellate Court i.e. the learned Court of the District Judge, Bongaigaon for deciding the appeal on merits.

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(iii) Taking into account that this Court has remanded the appeal back to the learned First Appellate Court for deciding the appeal afresh on merits, this Court has not decided on the question of entitlement as have been decided by the preliminary decree made vide the judgment and decree dated 07.03.2019 and the parties in Title Appeal No.06/2022 shall be at

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liberty to make necessary submissions in respect to their entitlement before the learned First Appellate Court.

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(iv) Taking into account that this Court had remanded the Appeal to the learned First Appellate Court, this Court by exercising the powers under Order XLI Rule 26A of the Code directs both the parties to appear before the learned First Appellate Court i.e. the learned Court of the District Judge, Bongaigaon on 21.07.2025 for hearing before the learned First Appellate Court.

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(v) Taking into account that the appeal has been restored, this Court further stays the operation of the judgment and decree dated 22.02.2022 which is the final decree passed by the learned Trial Court i.e. the Court of the learned Civil Judge, Bongaigaon in Title Suit (P) No.31/2014 till 21.07.2025, which is the next date fixed before the learned First Appellate Court. The appellants herein shall be at liberty to file appropriate application before the learned First Appellate Court for further extension of the stay so granted herein above.

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(vi) Interim order passed on 06.05.2025 stands vacated.

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The Registry is directed to forthwith return the LCR to the learned Court below and in that regard, if necessary, the Registry shall employ the service of a special messenger.

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JUDGE

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Comparing Assistant

Sonaban Khatun and 9 Ors. v. Daliman Bibi and 11 Ors.

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Sonaban Khatun and 9 Ors. v. Daliman Bibi and 11 Ors.

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