IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1454 of 2007 Bhagwan Gope, son of Late Baiju Gope, resident of village Ishopur, P.S. Phulwari, District Patna ….Plaintiff-Petitioner. Versus 1. Bacha Gope alias Upendra Prasad, son of Late Ram Brichh Gope 2. Jai Ram Gope 3. Sia Ram Gope 4. Sia Saran Gope Sons of Late Gauri Gope 5. Mahesh Rai S/o Late Ram Brichh Gope, all residents of village Ishopur, P.S. Phulwari, District Patna ……Defendants-Opposite parties. For the petitioner : M/s Hemendra Pd. Singh and Jitendra Kumar, Advocates. For the opposite parties : None. ----------- 04/ 07.09.2009 Heard learned counsel for the petitioner. 2. This civil revision has been filed by the sole plaintiff-petitioner challenging order dated 11.06.2007 by which the learned Subordinate Judge-II, Patna, allowed the application filed by defendants-opposite parties for appointment of Pleader Commissioner for the purpose of takhtabandi for preparation of final decree in Title Partition Suit No.140 of 1964 (28/1967). 3. The said suit was contested whereafter it was decreed by the learned trial court vide its judgment and decree dated 29.09.1969 against which opposite party nos.2 to 4 filed First Appeal No.581 of 1969 which after hearing was dismissed by this court vide judgment and decree dated 03.07.1985 with modification that Schedule-C land will not be partitioned. Accordingly, the appellate decree was prepared on 03.07.1986. 2 4. It further transpires that in view of the aforesaid preliminary decree modified by this court, an application dated 05.07.2005 was filed by opposite party nos.2 to 4 to appoint a survey knowing Pleader Commissioner for takhtabandi, etc. so that final decree be prepared. To the said application the plaintiff- petitioner along with other defendants filed their respective rejoinders on 15.05.2006 and 16.05.2006 doubting the genuineness of the gifts claimed by opposite party nos.2 to 4 from their father after the aforesaid preliminary decree. The said application was allowed by the learned Subordinate Judge-II, Patna vide its order dated 11.06.2007, which is under challenge in the instant civil revision. 5. The said order is challenged by the sole plaintiff- petitioner in this civil revision claiming that his mother (defendant no.4) executed a registered deed of gift dated 17.03.1973 with respect to her 2 annas in favour of the petitioner, whereafter the father (defendant no.1) of the petitioner also died on 17.05.1992 leaving behind two sons, namely the plaintiff and defendant no.2. It is also claimed by the petitioner that in December, 2000 plaintiff and defendants amicably partitioned the suit property among themselves and they came in possession of their exclusive portions and accordingly mutation was done separately on 25.09.2001 and the appeal and revision against the said mutation was also dismissed by the authorities concerned and hence nothing remains now to be partitioned. 3 6. From the averments as well as the materials on record, it is quite apparent that opposite party nos.2 to 4 raised the point that the father had executed gift deed of his 1/5th share in the suit property whereas the petitioner had claimed that his mother had executed a deed of gift of 2 annas shares in favour of the petitioner. Mere orders of mutation and some deeds of transfer cannot legally lead to the conclusion that there was a partition among all the parties to the suit. Furthermore, in the learned court below also no petition of compromise or any such material had been filed by any of the parties and accordingly the provision of Order XXIII of the Code of Civil Procedure would not be attracted nor it can be presumed that the suit or any part of the claim has been withdrawn or abandoned or that all the parties have compromised the suit, specially when the defendants are categorically denying any such compromise outside the court. 7. In the said circumstances, this court does not find any illegality or jurisdictional error in the impugned order of the learned court below. Accordingly, this civil revision is dismissed. However, since the matter of partition is pending since about 45 years, the learned court below is directed to expedite the preparation of final decree after asking the parties to file their objections regarding deeds of transfer from Baiju Gope and Dulari Devi (defendant no.1 and defendant no.4). However, since the said two defendants have died, their shares would naturally devolve upon their heirs/transferees and takhtabandi has to be done and 4 final decree has to be prepared accordingly within six months. harish/ ( S. N. Hussain, J. )