FIRST APPEAL No. 128 OF 1993 Against the Judgment and Order dated 13.01.1993 and the final Decree signed on 20.02.1993 by Sri B.K. Choudhary, Sub Judge IIIrd, Muzaffarpur in Partition Suit No.106 of 1960. NOOR FATMA & ORS ………..……….Intervener defendants/Appellants Versus SRI ANAND BHANDARI & ORS. …………………………….……… Plaintiffs/Respondents ******** For the Appellants : Mr. Md. Abu Haider, Advocate For the Respondent No.27 to 33 : Mr. Birendra Kumar Sinha, Sr. Advocate Dated : 13thday of December, 2010 P R E S E N T THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO J U D G M E N T 1. This first appeal has been filed by the interveners- appellants against the Order dated 13.01.1993 conforming the Pleader Commissioner’s report and the final decree signed on 20.02.1993 by Sri B.K. Choudhary, the learned Sub Judge IIIrd, Muzaffarpur in partition Suit No.106 of 1960. 2. It appears that the plaintiffs-respondents filed the aforesaid suit for partition. The said partition suit was decreed. During the pendency of the final decree proceeding, the parties to the suit sold many of the properties. Earlier in the final decree proceeding, Pleader Commissioner was appointed. The said Pleader Commissioner submitted his report which was confirmed and final decree was prepared on 19.09.1987. It further appears that subsequently by Mungeshwar Sahoo, J. 2 terms of Order dated 16.06.1989 passed in Misc. Case No.5 of 1987, the said final decree prepared on 19.09.1987 was set aside. Thereafter, on the application of defendant No.6 to 12, another Advocate Commissioner was appointed to curve out the share of defendant No.6 to 12. From perusal of the impugned Judgment/ Order, it appears that notices were issued by the Advocate Commissioner. None of the parties filed any objection to the appointment of second Advocate Commissioner. Thereafter, the Advocate Commissioner submitted his report. Several objections were filed by the plaintiff and the defendants. These appellants filed intervention application for being added as party in the case on the ground that they have purchased from the parties to the suit. After considering the objections and hearing the parties by the impugned Judgment/ order, the learned Court below confirmed the Pleader Commissioner’s report and allowed the intervention application of the appellants and granted liberty to these appellants to apply for carving out their separate patti. 3. The learned counsel, Mr. Abu Haider, appearing on behalf of the appellants submitted that earlier the Pleader Commissioner had submitted a report dated 15.11.1972 which was confirmed by order dated 28.07.1980 without setting aside that Pleader Commissioner’s report, the learned Court below has confirmed the second report of the Pleader Commissioner which is illegal. The learned counsel further submitted that the interveners were not given opportunity to file objection to the second Pleader Commissioner report. The learned counsel further submitted that it is a fit case where the present Pleader Commissioner’s report should be set aside and the earlier report of the Pleader Commissioner dated 15.11.72 be restored. 4. On the other hand, the learned counsel appearing on behalf of the respondents submitted that on the basis of Misc. Case filed under Order 13 Rule 3 9 C.P.C., earlier final decree was set aside and, therefore, the said report of the Pleader Commissioner now cannot be restored at the instance of the appellants who were added as party by the impugned Judgment and Order in this First Appeal. 5. It further appears that after confirmation of the Pleader Commissioner’s report dated 15.11.1972, one Smt. Chaya Devi Tandon filed Misc. Case No.5 of 1987. The said Misc. case was allowed and the final decree was set aside. 6. From the above facts and circumstances of the case, it appears that by the impugned Judgment and Order, the present appellants have been added as party defendant. Therefore, it is evident that no evidence was adduced on behalf of them and liberty has been granted to them to pray for carving out their separate Takhta. Moreover, they are the purchasers during the pendency of the suit, i.e., during the pendency of final decree proceeding. Therefore, according to Section 52 of the Transfer of Property Act, they cannot claim a particular piece of land on the basis of their sale deed. Their share is liable to be adjusted in the share of their vendor. In my opinion, at the instance of the interveners who are subsequent purchasers, the final decree cannot be set aside. Moreover, their right has not been closed. 7. In view of my above discussion, I find no merit in this First Appeal and according this First Appeal is dismissed. In the facts and circumstances of the case, the parties shall bear their own costs. (Mungeshwar Sahoo, J.) Patna High Court, Patna The 13th December, 2010 Sanjeev/N.A.F.R.