Sri Bhau Vs Smt Mariambi Hussainsab

SRI. ADBULRAHEMAN S/O. HUSSAINSAB TAHSILDAR, AGED ABOUT 33 YEARS, OCC: SERVICE, R/AT C/O NISSAR HUSSAIN TAHSILDAR, PLOT NO.11, LIBERAL COOPERATIVE HOUSING SOCIETY, SHAHU NAGAR, BELAGAVI 3 590 001.

¶25

SRI. RAMAZANSAB S/O. HUSSAINSAB TAHSILDAR, AGED ABOUT 32 YEARS, OCC: NIL, R/AT C/O NISSAR HUSSAIN TAHSILDAR, PLOT NO.11, LIBERAL COOPERATIVE HOUSING SOCIETY, SHAHU NAGAR, BELAGAVI 3 590 001.

¶26

MISS RAZIABI HUSSAINSAB TAHSILDAR, AGED ABOUT 28 YEARS, OCC: NIL, R/AT C/O NISSAR HUSSAIN TAHSILDAR, PLOT NO.11, LIBERAL COOPERATIVE HOUSING SOCIETY, SHAHU NAGAR, BELAGAVI 3 590 001.

¶27

SRI. NISAR AHAMED S/O. HUSSAINSAB TAHSILDAR, AGED ABOUT 48 YEARS, OCC: SERVICE, R/O C/O NISSAR HUSSAIN TAHSILDAR, SHARANOPANT CHAWAL, PLOT NO.14, NEHRU NAGAR, BELAGAVI 3 590 001.

¶28

6A. SARFARAJ S/O. NISAR TAHASILDAR, AGE: 30 YEARS, OCC: BUSINESS, R/O: SHARANOPANTH CHAWL, PLOT NO.14, NEHRU NAGAR, DIST: BELAGAVI.

¶29

6B. NAZIM S/O. NISAR TAHASILDAR, AGE: 22 YEARS, OCC: BUSINESS, R/O: SHARANOPANTH CHAWL, PLOT NO.14, NEHRU NAGAR,

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HC-KAR

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DIST: BELAGAVI.

¶33

6C. SMT. NIGAR W/O. NISAR TAHASILDAR, AGE: 44 YEARS, OCC: H/W, R/O: SHARANOPANTH CHAWL, PLOT NO.14, NEHRU NAGAR, DIST: BELAGAVI.

¶34

6D. MUMTAZ W/O. NISAR TAHASILDAR, AGE: 30 YEARS, OCC: H/W, R/O: SHARANOPANTH CHAWL, PLOT NO.14, NEHRU NAGAR, DIST: BELAGAVI.

¶35

6E. RESHMA W/O. SHAHID MUKHTAR, AGE: 30 YEARS, OCC: H/W, R/O: SHARANOPANTH CHAWL, PLOT NO.14, NEHRU NAGAR, DIST: BELAGAVI.

¶36

6F. NILOFAR S/O. SAIFULLA DESAI, AGE: 23 YEARS, OCC: H/W, R/O: SHARANOPANTH CHAWL, PLOT NO.14, NEHRU NAGAR, DIST: BELAGAVI.

¶37

SRI. NAUSHAD S/O. HUSSAINSAB TAHSILDAR, AGED ABOUT 50 YEARS, OCC: FRUIT VENDOR, R/O. 154, MATH GALLI, HOSUR, SHAHAPUR, BELAGAVI 3 590 001.

¶38

SRI. MOHAMMADALI S/O. JAINUDDIN TAHSILDAR, AGED ABOUT 24 YEARS, OCC: STUDENT, R/O C/O: NISSAR HUSSAIN TAHSILDAR, SHARANOPANT CHAWAL, PLOT NO.14, NEHRU NAGAR BELAGAVI 3 590 002.

¶39

SRI. JAFRULLA S/O. JAINUDDIN TAHSILDAR, AGED ABOUT 25 YEARS, OCC: STUDENT, R/O: C/O: NISSAR HUSSAIN TAHSILDAR, SHARANOPANT CHAWAL, PLOT NO.14, NEHRU NAGAR, BELAGAVI 3 590 002.

¶40

SRI. NAZEERAHAMED S/O. HUSSAINSAB TAHSILDAR,

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HC-KAR

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AGED ABOUT 41 YEARS, OCC: RICHSHAW DRIVER, R/O: C/O: GULABHUSSAIN SHAIKH, BONDRE MAL, KLAKJSHA TEERTH, VASANT DANDAGEWADI, KOLHAPUR, MAHARASHTRA STATE 3 416 012.

¶44

SMT. DILSANADHI ABDUL RAUT KHAN, AGED ABOUT 39 YEARS, OCC: HOUSEHOLD WORK, R/AT: <A= WARD SHIVAJI PETH, NEAR RENUKA TALIM AND NEAR MUTTON MARKET, MUNICIPALGALA, KOLHAPUR 3 416 012.

¶45

SRI. SULEMAN S/O. MOHAMMED TAHSILDAR, AGE: MAJOR, OCC: SMITHY WORK, R/AT: 1328/5, B. WARD, JAWAHAR NAGAR, KOLHAPUR 3 416 012.

¶46

SRI. MOINUDDIN S/O. MOHAMMAD TAHSILDAR, AGED: MAJOR, OCC: NIL, R/O: H NO.1328/5, B WARD, JAWAHAR NAGAR, KOLHAPUR 3 416 012.

¶47

SMT. KHATAIBI W/O. LATE ASTUMIA TAHSILDAR, AGED: MAJOR, OCC: HOUSEHOLD WORK, R/AT: H NO.154, MATH GALLI, HOSUR, BELGAVI 3 590 001.

¶48

SRI. UMARSAHEB S/O. ABDUL RAZAK TAHSILDAR, AGED MAJOR, OCC: AGRICULTURE, R/O: BHOJ GALLI, SHAHAPUR, BELAGAVI 3 590 002.

¶49

SMT. BABUBI W/O. ABDUL RAZAK TAHSILDAR, AGE: MAJOR, OCC: HOUSEHOLD WORK, R/AT: BHOJ GALLI, SHAHAPUR, BELAGAVI 3 590 002.

¶50

SINCE DECEASED, RESPONDENTS 15, 17,18, 19 ARE TREATED AS LR9S (V/C/O DATED 05.09.2012)

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SMT. SAHIDABANU W/O. ABDULWAHID PATTANWALE, AGE: MAJOR, OCC: HOUSEHOLD WORK, R/AT: PATIL GALLI, BELAGAVI 3 590 001.

¶54

SMT. MUTAZBEGUM W/O. ABDULWAHIB PEERJADE, BEFORE MARRIAGE KNOWN ASKUMARI MUMTAZ ABDULRAZAK TAHSILDAR, AGE: MAJOR, OCC: HOUSE HOLD WORK, R/AT: MARATHA COLONY, TAMBOLI CHAWL, DHARWAD 3 8.

¶55

SMT. NOORJAHAN WIFE OF ABDULREHAMAN SAYYED, MAJOR, OCC:HOUSEHOLD WORK, R/O: 550, RAGHUNATH PETH, ANGOL, BELAGAVO 3 590 002.

¶56

SMT. SUSHILABAI WIFE OF LAXMAN MURKUTE, MAJOR, OCC:HOUSEHOLD WORK, R/O: 350, NEAR SAMBHAJI UDYAN MAHADWAR ROAD, BELAGAVI 3 590 001.

¶57

SRI. SUDHIR SON OF LAXMAN MURKUTE, MAJOR, OCC:BUSINESS, R/O: 350, NEAR SAMBHAJI UDYANMAHADWAR ROAD, BELAGAVI 3 590 001.

¶58

SMT. YASHODA LAXMANRAO BIRGE, AGED ABOUT 60 YEARS, OCC:HOUSEHOLD WORK, R/O: CCB NO.122, MAHATMA GANDHI, COLONY, TILAKWADI, BELGAUM 3 6.

¶59

SINCE DECEASED RESPONDENTS 23 TO 26 ARE TREATED AS LR9S (V/O DATED 05.09.2012)

¶60

SRI. ANANT LAXMANRAO BIRGE, AGED ABOUT 38 YEARS, OCC:HOUSEHOLD WORK, R/O: CCB NO.122, MAHATMA GANDHI,

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COLONY, TILAKWADI, BELAGAVI 3 6.

¶64

SRI. SUNIL LAXMANRAO BIRGE, SINCE DECEASED BY HIS LR9S.

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24A. SUNITA W/O. SUNIL BIRJE, AGE: 40 YEARS, OCC: H/W, R/O: SAPHALYA MG COLONY, TILAKWADI, DIST: BELAGAVI.

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24B. NEHA D/O. SUNIL BIRJE, AGE: 20 YEARS, OCC: H/W, R/O: SAPHALYA MG COLONY, TILAKWADI, DIST: BELAGAVI.

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24C. DARSHONA W/O. SUNIL BIRJE, AGE: 18 YEARS, OCC: H/W, R/O: SAPHALYA MG COLONY, TILAKWADI, DIST: BELAGAVI.

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24D. GOURAV S/O. SUNIL BIRJE, AGE: 18 YEARS, OCC: H/W, R/O: SAPHALYA MG COLONY, TILAKWADI, DIST: BELAGAVI.

¶69

SRI. VIJAY LAXMANRAO BIRGE, AGED ABOUT 32 YEARS, OCC: HOUSEHOLD WORK, R/O: CCB NO.122, MAHATMA GANDHI COLONY, TILAKWADI, BELGAVI 3 6.

¶70

SRI. PRAMOD LAXMANRAO BIRGE, AGED ABOUT 29 YEARS, OCC:HOUSEHOLD WORK, R/O: CCB NO.122, MAHATMA GANDHI COLONY, TILAKWADI, BELGAUM 3 6.

¶71

SRI. MOHAN LAXMANRAO BIRGE, AGED ABOUT 26 YEARS, OCC:HOUSEHOLD WORK, R/O: CCB NO.122, MAHATMA GANDHI COLONY, TILAKWADI, BELGAUM 3 6.

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SRI. ABDULGAFAR MAKTUMSA HUSSAIN TAHSILDAR,

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MAJOR, OCC: UTENSILS REPAIRERS, R/O: 154, MATH GALLI, HOSUR, BELGAVI 3 590 006.

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SRI. MANGALAL PREMJI PATEL, MAJOR, OCC:BUSINESS, R/O: BELAGAVI 3 590 006.

¶78

SMT. AISHABI D/O. UMARSAB TAHSILDAR, AGED ABOUT 48 YEARS, HOUSEHOLD WORK, RESIDENT OF KAKATIVES GALLI, BELAGAVI 3 590 001.

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Deleted V/O. dated 05.09.2012

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SMT. KULSUMBI WIFE OF MAHAMMED MADIWALE, MAJOR, OCC:HOUSEHOLD WORK, RESIDENT OF 3977, KAKTIVES GALLI, BELAGAVI 3 590 001.

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&RESPONDENTS

¶82

(BY SRI. NAVEEN P. MOREY, ADVOCATE FOR R2, R3, R6(C, D); SRI. U.G.KATTIMANI, ADVOCATE FOR R6(F); SMT. KAVITA S. JADHAV, ADVOCATE FOR R10; SRI. J.S.SHETTY, ADVOCATE FOR R21; SRI S.S.PATIL AND SRI. RANJIT M. PAWAR, ADVOCATE FOR R26; APPEAL IS ABATED AGAISNT R4 V/O DATED 21.08.2023 APPEAL IS DISMISSED AS ABATED AGAINST R14, R15, R19, R28 & R31; NOTICE TO R5, R6(A), R6(B), R6(E), R7, R8, R9, R11, R13, R17, R18, R20; R24(A), R24(B), R24(D), R27 ARE SERVED; V/O DATED 11.06.2025 NOTICE TO R6(E) IS DISPENSED WITH; NOTICE TO R12, R15, R23, R24(C), R25, R29 ARE HELD SUFFICIENT)

¶83

THIS MSA IS FILED UNDER ORDER 43 RULE 1(U) OF THE CODE OF CIVIL PROCEDURE PRAYING TO SET ASIDE THE JUDGMENT AND DECREE IN R.A.NO.118/2004 ON THE FILE OF 1^ST ADDITIONAL CIVIL JUDGE, SENIOR DIVISION, BELAGAVI ALLOWING THE APPEAL AND REMITTING THE SAME TO TRIAL COURT BY SETTING ASIDE THE ORDER DATED 01.04.2004 PASSED IN FDP NO.24 OF 1982 ON THE FILE 1^ST ADDITIONAL CIVIL JUDGE, JUNIOR DIVISION, BELAGAVI AND THIS APPEAL BE ALLOWED WITH COSTS THROUGHOUT IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS APPEAL, COMING ON FOR ORDERS THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE M.G.S. KAMAL)

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A preliminary decree which was passed in the

¶91

year 1964, is yet to see the light of the day. Besides,

¶92

passage of time and intervening circumstances have reduced even the extent of land which was originally sought to be partitioned amongst the sharers. This constant fluctuation of the extent of land coupled with alienation made by some of the parties to the suit has resulted in perennial uncertainty lingering even after six decades of passing the preliminary decree.

¶93

The present Miscellaneous Second Appeal is

¶94

filed by defendant No.2 who is one of the purchasers of a portion of the suit schedule property from defendant No.1. In the final decree proceedings in FDP No.24/1982, on

¶95

01.04.2004 following order came to be passed:

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<ORDER

¶100

Final decree petition is hereby allowed.

¶101

Proposal made by the commissioner is hereby accepted subject to following modifications.

¶102

Proposals of area wise divisions as per 'B' schedule of the commissioner reported is accepted and lands shall be allotted to the plaintiffs, defendant no.1 and defendant no.15, as per the report in 8B9 schedule.

¶103

8B9 schedule report and map is treated as part of the final decree. By way of equitable partition, property purchased by defendants' No.2 to 4 is allotted to the share of defendant no.1.

¶104

In order to equalise the value of 3/5^th share of plaintiffs and 1/5^th share of defendant no.15, it is ordered as under:

¶105

Defendants9 no.1A to 1E, defendants' no.2A to E, defendants no.3A to 3B, defendant no. 4A to 4F are directed to pay Rs. 1,25,80,559/-by way of owelty to the plaintiffs.

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Defendants no. 1A to IE, defendants no.2A to 2E, defendants no.3A to 38, defendant no 4A TO 4F are directed to pay Rs.1,37,23,430/- by way of owelty to the defendant no. 15.

¶107

Contribution towards shares of owelty by defendants' no.2 to 4 is proportionate to the extent of the land they purchased.

¶108

For the purpose of determination of rate of value of the land, actual possession of the property by defendant no.2 to 4, tenants, 'A' schedule report and map prepared by the commissioner is treated as part of Final Decree.

¶109

Draw Final Decree accordingly.=

¶110

By the aforesaid order, defendants No.1 (a-e), 2(a-e), 3(a-b) and 4(a-f) are directed to pay

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Rs.1,25,80,559/- to the plaintiffs and Rs.1,37,23,430/- to

¶115

defendant No.15 respectively by way of owelty. It is this direction which triggered filing of regular appeals by the defendants in RA Nos.87/2004, 114/2004, 115/2004 and 118/2004 before the First Appellate Court. Considering the grounds urged, the First Appellate Court framed the following points for consideration:

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<1. What are the properties available for partition and what is the extent of the area?

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2. Whether the defendants No.2 to 4 are the bonafide purchasers for value without notice?

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3. Whether the valuation of the properties assessed by the court commissioner is accepted by the court below is proper and correct?

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4. Whether the trial court was justified in granting owelty to the plaintiffs?

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5. Whether the order passed by the court below is sustainable in law? If no to what relief the parties are entitled for?

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6. What order?=

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While adverting to the aforesaid points, the

¶123

First Appellate Court on consideration of material placed

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on record has found that originally though three items of properties namely R.S.No.611, 613 and 374 was the

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subject matter of suit, the actual land that was available for partition was only in RS No.611 and RS No.374. The First Appellate Court has found even the measurement of the land in RS No.611 was reduced from what was mentioned at the time of filing of the suit. In that originally actual extent of land in RS No.611 was shown as 8 acres 39 guntas of which a portion is stated to have been acquired by the State and another portion stated to have been granted by the Land Tribunal in favour of certain tenant. Thereafter, actual available land was stated to be 3 acres 38 guntas. Similarly, the original extent of land in RS No.374 was shown as 1 acre 16 guntas which after alienation and acquisition, shown to be only 23 guntas or 8 guntas which was also not clear.

¶128

The defendants No.2 to 4 claim to have purchased certain portion of land in RS No.374

¶129

aggregating 33 guntas.

¶130

The First Appellate Court thus having adverted

¶131

to these factual aspects of the matter has come to the

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conclusion that the exact extent of area available in RS No.374 and RS No.611 is required to be ascertained by the Trial Court.

¶136

While answering point No.3, the First Appellate Court has found that the commissioner report which formed basis for the Trial Court to pass the impugned order in the final decree proceedings has premised it on wrong assumption of the extent of land available and its location which had led to wrong calculation by the Trial Court while determining the value of owelty amount.

¶137

It is under these two circumstances of there

¶138

being wrong calculation of the extent of land resulting in wrong calculation of owelty amount which would eventually result in incomplete and unequal distribution of the shares to the parties, the First Appellate Court thought it appropriate to remand the matter by setting aside the order passed by the FDP court for fresh consideration. Aggrieved by this, the legal representatives of defendant No.2 are before this Court.

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9. Counsel for appellants submits that defendant

¶143

No.1 was allotted 1/5^th share in the suit properties which would roughly works out to 35 guntas of land. Defendant No.2 had purchased 12½ guntas, defendant No.3 had purchased 8 gunas and defendant No.4 had purchased 12½ guntas aggregating into 33 guntas, which is still within limits of the share allotable to defendant No.1. Therefore, he submits that the First Appellate Court has not looked to this aspect of the matter while remanding the matter for fresh consideration causing delay and prejudice to the appellants.

¶144

Smt.Kavita S Jadhav, counsel appearing for the plaintiff on the other hand submits that no fault can be found with the order of remand inasmuch as the final order that has been passed by the Trial Court closing the final decree proceedings is completely on an erroneous premise. In that, the actual extent of land itself has not been ascertained which aspect of the matter has been highlighted in the impugned order by the First Appellate

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Court. Therefore, she submits no irregularity or illegality

¶149

can be found with the order of remand passed by the First Appellate Court.

¶150

Heard. Perused the records.

¶151

The question that would arise for consideration

¶152

is:

¶153

<Whether the First Appellate Court is justified in setting aside the order dated 01.04.2004 passed in FDP No.24/1982 and remanding the matter for fresh consideration?

¶154

Perusal of the reasoning assigned by the First

¶155

Appellate Court more particularly to points No.1 and 3 would make it clear that the availability and the extent of land as put for partition at the time of filing of the suit has not remained the same when it was taken up at the time of distribution of the shares as per the preliminary decree

¶156

in the final decree proceedings. No material is placed on record, to the contrary with regard to the factual finding of

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the matter by the First Appellate Court. Narration of facts above would indicate that out of three items of suit properties namely RS No.111, 374 and 611 only two items namely RS No.111 and RS No.374 were available for partition by metes and bounds.

¶161

The extent of land in RS No.611 though initially was 8 acres 39 guntas which is now apparently reduced to 3 acres 38 guntas. Similar is the case in respect of the extent of land in RS No.374 which originally stated to have been measuring 1 acre 16 guntas now was reduced to 23 guntas, excluding the portion sold in favour of the defendants No.2 to 4.

¶162

The First Appellate Court while answering point No.2, has found that the defendants No.2 to 4 purchased the property during the pendency of the proceedings. As such, the entire extent of land in RS No.374 ought to have been taken into consideration for the purpose of equitable distribution of the property.

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It is based on these aspects of the matter, the

¶167

First Appellate Court has arrived at a conclusion that the extent of land considered by the Trial Court for the purpose of determination of the shares and their allotment was erroneous. No error in this regard can be found on the reasoning and conclusion arrived by the First Appellate Court.

¶168

As regards determination of the value of owelty, the First Appellate Court has taken into consideration of the fact that the Court Commissioner in his report has taken the actual extent of land in Sy.No.611 as measuring 6 acres 4 guntas while only 3 acres 38 guntas was available for partition. This is the very basis to the extent of land being erroneous. The Trial Court ought not to have accepted the Commissioner9s report for the purpose of closing final decree proceedings.

¶169

Needless to state that the final decree proceedings are meant to put an end to the litigation with regard to the division of the properties and allotment of

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the shares as per the preliminary decree. It is in the final decree proceedings the shares are distributed equitably. If the very basis of the share which is required to be distributed and its extent is not ascertainable, there is no purpose in proceeding further. In the light of the finding by the First Appellate Court regarding non availability of the particulars of actual extent of land in the aforesaid RS No.611 and 374, the consequence which would arise is very much comprehensible. This Court therefore do not see any illegality or irregularity in the First Appellate Court setting aside the order dated 01.04.2004 passed in FDP No.24/1982 and remanding the matter for fresh consideration with specific finding as narrated herein above. No grounds are made out for interference as noted above.

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It is disheartening that a preliminary decree

¶175

which is passed in the year 1964 still not attained finality and this impugned remand matter which is passed in the year 2007 is still pending consideration before this Court.

¶176