1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL REVISION APPLICATION NO. 112 OF 2006 CIVIL REVISION APPLICATION NO. 112 OF 2006 CIVIL REVISION APPLICATION NO. 112 OF 2006 Madhukar Kondiram Bhise & Anr. ... Applicants Vs. Ramdas Ganpat Bhise, since deceased through Lrs Jamunabai @ TRai Ramdas Bhise & Ors. ... Respondents Mr. G.S.Godbole,Advocate, for the applicants. Mr. P.B.Shah, Advocate, for the respondent No.29. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. DATE: 8th January, 2008. DATE: 8th January, 2008. DATE: 8th January, 2008. P.C. P.C. P.C. 1. Heard learned Counsel for the parties. 2. Against the dismissal of the Suit No.30 of 1951, Appeal No.132 of 1955 was preferred before this Court by 2 the original plaintiffs. On 21.12.1960, consent terms were filed by the parties and the decree was passed as per the consent terms. As per para 1 of the consent terms, House No.87 was given to the plaintiffs. As per para 2 of the said consent terms, the plaintiffs-appellants were given 1/3rd share in House No.86 from the eastern side. As per para 3, the area of the lane (Bol) existing between House no.86 and House No.87 went to the share of the plaintiffs, but the defendants were permitted to use the said lane only as a right of way. As per para 4, two latrines and one well were situated in the eastern side 1/3rd portion of House No.86 but the plaintiffs and the defendants were declared to be the common owners of the said two latrines and the well. Para 9 provided that the plaintiffs-appellants to recover possession of their 1/3rd share to be determined by the Court Commissioner as provided in para 7. Para 10 made it clear that the decree as per 1/3rd share in House No.86 was to be preliminary decree for partition. As per para 11, the decree to the extent of House No.87 was to be final decree. Accordingly, the trial Court passed the final decree in respect of 1/3rd share in House No.86 on the basis of the report of the Court Commissioner. The final decree was passed on 31.1.1964. 3. In 1996, respondents Nos. 29 and 30 purchased 3 property from the original plaintiffs and thereafter the L.Rs of original defendant no.2 and original defendant no.9 himself filed an application under Section 152 of the C.P.C. for modification of the final decree contending that due to typographical mistake in the final decree, there was no mention about the rights of the defendants over the lane, well and the latrines. After hearing the parties, the learned trial Court rejected the application holding that it was not a typographical mistake but the trial Court was required to pass a final decree only in respect of 1/3rd share in House No.86. He dismissed the application for modification. Against that order, Revision Application is filed before this Court. 4. The learned trial Court, while rejecting the application, observed as follows :- "....From the above clauses, it is crystal clear that the Hon’ble High Court has passed the order regarding the use of lane, right of way, common ownership of the parties in the two latrines as well as in the well. Therefore,the applicants’ contention that the lower court has passed the judgment after remanding back the matter does not appeal to my mind. The lower court was assigned the work to partition the one third 4 share from C.T.S. No.86 in order to give it to the plaintiff. The lower court’s work was only limited to carry out the directions given by the Hon’ble High Court. The lower court has not passed any order on 31/01/1964 in respect of the right of way or parties common ownership in the well and the two latrines. ..." 5. In view of the decree passed on the basis of the consent terms, it is clear that it was partly final decree and partly preliminary decree. As far as House No.86 is concerned, it is made clear in so many words that it was a final decree and as far as 1/3rd share to be given to the plaintiffs in House no.86, it is made clear in so many words that it is a preliminary decree. Declaration about the right of way of the defendants over the lane and the declaration that both parties shall be common owners of two latrines and the well were only declaratory part of the decree which could not be treated as preliminary decree and, therefore, the question of passing a final decree in respect of this right would not arise. 6. Taking into consideration the facts stated above, I find no fault in the impugned order passed by the learned Single Judge. The final decree was 5 restricted only in respect of partition of House No.86 and, therefore it was silent in respect of the rights of the defendants over the lane, the latrines and the well because those rights were already declared in the decree passed by the Court on the basis of the consent terms. Hence I find no fault in the impugned order. . Therefore, the Revision Application stands dismissed. (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)