CR-2812-2011 (O&M) [ 1 ] ::::::: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR-2812-2011 (O&M) Date of decision:16.11.2011 Prem Kaur ...Petitioner Versus Sunita Devi and other ...Respondents CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. Rakesh Nehra, Advocate, for the petitioner. Mr. Navneet Singh, Advocate, for the respondents. ***** RAKESH KUMAR JAIN, J. This revision petition is directed against the order of the learned Additional District Judge, Jhajjar dated 15.01.2011 by which an application for correction of decree sheet according to the judgment dated 17.10.2007 has been dismissed. Brief facts of the case are that a Civil Suit filed by the plaintiff/petitioner for partition of a residential property situated in the revenue estate of Jhajjar was decreed on 20.10.2005 and the plaintiff/petitioner was held to be the owner of 3/7 share and accordingly the preliminary decree was drawn to the following effect: “It is ordered that the suit of the plaintiff stands decreed without any order as to costs. It is held that the plaintiff is owner of 3/7 share in the property in question and she is entitled to get her share separated by way of partition.” The judgment and preliminary decree dated 20.10.2005 was challenged by the defendants by way of appeal which was dismissed on 17.10.2007 and the decree was drawn to the following effect: CR-2812-2011 (O&M) [ 2 ] ::::::: “It is ordered that the appeal being bereft of merits is hereby dismissed with no orders as to costs.” It is pertinent to mention at this stage that while dismissing the appeal, the learned First Appellate Court had made the following observations in para no.10 of its judgment: “10. As far as the second ground is concerned, the same is also not tenable. On the basis of revenue record and the documentary evidence placed on file, learned lower court held the plaintiff to be co-sharer to the extent of 3/7 share in the above suit land. There is no aberration therein. Sumat Parsad defendant No.3-appellant No.1 is co-sharer to the extent of 1/21 share. Defendants-appellants 2 to 5 and defendants-respondents No.17 to 12 are proved to be co-sharers to the extent of 2/7 share in equal shares in the suit property. Defendants- appellant No.6 and defendant-appellant No.7 have been proved to be co-sharers to the extent of 1/42 share each and other defendants-respondents are co-sharers to the extent of 4/21 share in equal shares. The above shares have been calculated in view of the revenue record in the shape of jamabandies and the mutations placed on file besides the sale deed. The same could not be assailed by the appellants in any way. Accordingly, I hold that the lower court was justified in defining the shares of the parties and then holding the plaintiff to be co-sharer to the extent of 3/7 share entitled to get the same separated from the shares of the respondents-defendants. The findings recorded on issue No.1, therefore, do not suffer from any infirmity and the same do not call for any interference therein and thus, the findings on issue No.1 are accordingly affirmed.” In the concluding paragraph, the learned First Appellate CR-2812-2011 (O&M) [ 3 ] ::::::: Court had observed that “in the ultimate analysis, after distinctly specifying the shares of the parties as co-sharers in the property in dispute as above the impugned judgment and decree sheet passed by learned lower court are hereby maintained and the appeal being devoid of merits is hereby dismissed with no orders as to costs. Decree sheet be drawn accordingly.” The judgment and decree of the learned First Appellate Court was not further challenged by the defendants. The petitioner had filed an application for final decree which was granted on 18.08.2008, which reads as under: “It is ordered that vide judgment dated 20.10.2006, plaintiff was declared owner of 3/7th share in property in question and as parties to the suit have not partitioned the land in question, so keeping in view the impugned judgment, a final decree passed declaring the plaintiff owner of 3/7th share in the property in question and that she is entitled to get her share separated by way of partition.” On the basis of final decree, an application was filed by the plaintiff/petitioner for delivering separate possession through the local commissioner, in which the local commissioner was appointed on 26.02.2009 who had suggested the mode of partition and prepared the site plan as per which the property marked by letters LFIM was allotted to the petitioner and remaining portion was allotted to the defendants. The said application was disposed of on 30.09.2010. The defendants then challenged the said order dated 30.09.2010 by way of CR-6864-2010 in which it was urged that the decree is not in consonance with Order 20 Rule 18(2) of the Code of Civil Procedure, 1908 [for short “CPC”] as it does not reflect the separate shares of the various parties. It was submitted that the shares were declared in para no.10 of the judgment of the learned First Appellate Court but they could not be reflected in the decree which is sought to be executed. Faced with this situation, learned counsel for the respondents therein had submitted that the impugned order may be set aside and liberty may be granted to the respondents to file an application before the learned First Appellate court for obtaining a decree in accordance with the judgment on the basis of which they would CR-2812-2011 (O&M) [ 4 ] ::::::: file an execution application. In this background, while allowing that revision petition on 15.11.2010, the said order dated 30.09.2010 was set aside and liberty was granted to the plaintiff/petitioner to take appropriate steps in accordance with law. Thereafter, an application was filed by the plaintiff/petitioner on 10.12.2010 for correction of the decree sheet according to the judgment dated 17.10.2007 passed by the Additional District Judge, Jhajjar in terms of the finding recorded in para no.10 of the said judgment and the order of this Court dated 15.11.2010. However, the said application has been dismissed by the impugned order dated 15.01.2011. Hence, the present revision petition. Learned counsel for the petitioner has submitted that there is no dispute that the petitioner has been declared to be the owner/ co-sharer to the extent of 3/7 share in the property in dispute as after loosing the appeal against the preliminary decree, no further appeal has been filed. He also submitted that in para no.10 of the judgment of the learned First Appellate Court, the shares of the parties to the dispute are described as under: Plaintiff 3/7 share Defendant No.1 5/42 share Defendant Nos.2, 4 to 16 & 29 3/42 share Defendant No.3 1/21 share Defendant Nos.17 to 26 2/7 share Defendant No.27 and 28 1/21 share It is submitted that the plaintiff had filed the suit in the year 2001 for seeking partition but despite the expiry of 10 years and the fact that the judgment and decree dated 20.10.2005, much-less the judgment and decree dated 17.10.2007 have become final between the parties, the plaintiff is unable to take possession of her separate share and the defendants, being large in number, are holding over her share to her exclusion. It is further submitted that in the Civil Revision No.6864 of 2010, it was projected by the defendants that the shares mentioned in para no.10 of the judgment of the learned First Appellate Court are not reflected in the decree which is sought to be executed and now the objections are being taken everywhere by the defendants that the shares mentioned in para no.10 of the said judgment of the learned First Appellate Court cannot be reflected in the decree. He has also submitted CR-2812-2011 (O&M) [ 5 ] ::::::: that the decree is a formal expression of an adjudication and once the learned First Appellate Court had observed in its concluding paragraph that it had distinctly specified the shares of the parties as co-sharers in the property in dispute, therefore, the decree should have been drawn accordingly. On the other hand, learned counsel for the respondents, while opposing the revision petition, has submitted that the learned Court below has committed no error while passing the impugned order because the appeal was simply dismissed by the learned First Appellate Court and the decree was drawn accordingly. He further submits that in the absence of the separate shares of all the parties, the petitioner cannot be allowed to seek the execution much-less obtain possession of the property which has fallen to her share. I have heard both the learned counsel for the parties and perused the record with their able assistance. The facts of this case are not much in dispute. The plaintiff/petitioner had filed the suit in the year 2001 for the purpose of partition. The preliminary decree was granted in the year 2005 declaring her right to the extent of 3/7 share. The defendants remained unsuccessful in challenging the preliminary decree and in para no.10 of its judgment, the learned First Appellate Court had even described the share of all the parties to the lis. The said judgment and decree of the learned First Appellate Court became final between the parties. Application for final decree was accordingly drawn. Local Commissioner was appointed. Objections were filed and a specific portion LFIM has been earmarked to be delivered to the plaintiff/petitioner. The question involved in this case is that “whether the learned Court below has committed an error in dismissing the application for correction in the decree sheet? In the normal circumstances, whenever an appeal against the judgment and decree is dismissed, the learned First Appellate Court draws the same decree which has been drawn in the present case, but it was categorically argued before the learned First Appellate Court as a ground that the share of the plaintiff has been illegally determined to the extent of 3/7 share in the suit land. While dealing with this aspect, the learned First Appellate Court had ventured to determine the shares of all the parties to the lis. In the end, it was observed that in the ultimate analysis, after distinctly specifying the shares of the parties as co-sharers CR-2812-2011 (O&M) [ 6 ] ::::::: in the property in dispute, the judgment and decree of the learned Trial Court is maintained and appeal is dismissed and further it is ordered that the decree sheet be drawn accordingly. In order to understand the meaning of “decree sheet be drawn accordingly”, it is worthwhile to mention Section 2(2) of the CPC, which reads as under: “2. Definitions – In this Act, unless there is anything repugnant in the subject of context,-- (1) “Code” includes rules; (2) “decree” means 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 be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include -- (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. Explanation.-- A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final.” If the decree is formal expression of an adjudication of the Court while conclusively determining rights of the parties with regard to all or any of the matters in controversy in the suit, which would be either preliminary or final, then the learned First Appellate Court, who had conclusively decided the rights of all the co-shares to the extent of their share in para no.10 of the judgment and also observed that it is maintaining the judgment and decree of the learned Trial Court after distinctly specifying the shares of the parties as co-sharers in the property in dispute, should have reflected the shares of the parties to the lis in its decree even while dismissing the appeal especially when the said CR-2812-2011 (O&M) [ 7 ] ::::::: adjudication is not the part of the judgment and decree of the learned Trial Court. The defendants/ respondents are still in possession of the land beyond their share despite the expiry of 10 years from the date of filing of the suit only because of the reason that the learned Trial Court did not decide the separate shares of the parties which were decided by the learned First Appellate Court and were not reflected as a formal expression in the decree prepared by it. In view of the aforesaid discussion, the present revision petition is allowed and the impugned order is hereby set aside with no order as to costs. November 16, 2011 (RAKESH KUMAR JAIN) vinod* JUDGE