Case: Sardar Surjeet Singh Vs. Juguna Bai (Since Dead) &amp; Others

3. The facts indicate that defendant Nos.2 and 3 are sisters. Late Sardar Santh Singh, with the consent of his wives, adopted the appellantSurjeet Singh, when he was three years old. After the adoption, Smt. Juguna Bai gave birth to oneKaur, defendant No.3. Later on, one adoption deed was executed on 7.7.1978.4. A suit for partition was filed in which the Trial Court passed a preliminary decree on 11.10.1990 giving 1/3rd share to the appellant, 1/3rd share to be shared between twoThe appeal against the final decree was ultimately withdrawn by the plaintiff after the death of Rama Bai, during the pendency of the appeal. Thereafter, an application was filed in the year 1993 for passing of the final decree. Nima Kaur, the foster daughter of Sardar Santh Singh, filed I.A. No.1491 of 1993 under Order 1, Rule 10 CPC for impleading her as defendant No.4, claiming herself to be foster daughter of Sardar Santh Singh and, in view of the settlement deed dated 30.12.1978, she claimed 1/3rd share.6. The appellant resisted the application. It was contended that she was not having any right as the preliminary decree, which had been passed in civil suit, had attained finality. The existence of the settlement deed dated 30.12.1978 was denied. On 12.7.1996, the Civil Judge dismissed the application filed by Nima Kaur. She preferred a revision in the High Court in C.R.P.No.3124 of 1996, to be impleaded as defendant No.4 in the Suit being O.S. No.54/81, which was allowed vide order dated 28.7.1997.7. The Trial Judge, by a docket order dated 26.11.2002, directed the plaintiff to carry out the amendment and ordered that the final decree proceedings be closed. Against the said order, C.R.P.No.6088/2002 in O.S.No.54/81 and C.R.P. No.620/2003 in I.A.No.697/93 in O.S.No.54/81 were filed before the High Court.8. The High Court allowed both the CRPs and directed the Trial Court to proceed with the final decree proceedings only and dispose of the same in accordance with law. The High Court opined that it was evident that admittedly no challenge was made as against the preliminary decree by respondent No.4, the preliminary decree passed on 11.10.1990 had become final and even the appeal filed by the plaintiff had been dismissed on 6.4.1993 confirming the said decree. A preliminary decree once passed could not be set aside unless and until the appeal was filed. Mere allowing an impleading petition, and that too during the final decree proceedings, would not entitle respondent No.4 to plead that the preliminary decree has to be reopened. Vide order dated 8.12.2003, the High Court opined that if at all respondent No.4 has any say, within legal parameter, the same is open to her to be agitated.9. Nima Kaur thereafter, filed an application being I.A.No.1258 of 2004 in I.A.No.697/93 in O.S.No.54/81 to receive a document dated 12.8.1979 purported to be a relinquishment deed but the said application was rejected by the Civil Judge vide order dated 8.12.2004. Aggrieved thereby, C.R.P. No.86/05 was preferred by Nima Kaur, which was dismissed by the High Court. The High Court observed that these rights have to be considered by the executing court, if any, during final decree proceedings.10. On 5.2.2007, the Civil Judge passed the final decree allotting half share to the appellant, 1/6th share to Juguna Bai and 1/3rd share to Satnam Kaur. It was also held by the said Court that Nima Kaur was not entitled for any share in the suit property and her remedy was to file a separate suit. It would not be possible for the Court to determine her share in the final decree proceedings on the basis of the deed dated 30.12.1978. Aggrieved thereby, Juguna Bai and Satnam Kaur filed C.R.P.No.3914/07 and Nima Kaur filed C.R.P. No.3114/07. The High Court vide impugned order dated 30.11.2007 directed the Trial Court to examine the claim of Nima Kaur independently so that she would be able to establish her claim over the property left by Sant Singh. preliminary decree shall be modified to the extent needed and shall also decide as to who succeeded to the estate of the deceased andthe shares accordingly. The said order has been questioned before us in this appeal.

Reasoning:
14. After hearing the learned counsel for the parties, we are of the opinion that the question whether preliminary decree can bedecision is distinguishable and cannot be said to be applicable in view of the factual matrix of the instant case where the right has been asserted, which came into existence before the preliminary decree was passed and Nima Kaur was not a party to suit. It also appears that it was not the plea that was taken by any of the parties during the course of preliminary decree that she was having right, title or interest on the basis of settlement/gift deed datedsubsequent event can be taken consideration while working out the preliminary decree into the shape of final decree. It was also a case of subsequent event. As such, it is quite distinguishable. In the instant case, the preliminary decree has attained finality. The High Court has earlier rightly observed that preliminary decree would not be reopened due to impleadment which had been ordered.18. In our opinion, the High Court has erred in law while directing that further preliminary decrees can be passed. It was not a case of subsequent event or change of law. The only remedy available to Nima Kaur was to file a separate suit.