Case: Dhup Singh and Others Vs. Rattan and Others

This is an appeal by certificate. Some of the plaintiffs in a partition suit are the appellants. Dhup Singh and 30 others filed a suit against Ban Singh and 46 others for partition of a part of abadi deh of Pana Koran in Mauza Ladpur, Tehsil Jhajjar, District Rohtak, measuring about 49, 000 sq. yards. The plaintiffs claimed that they werein the suit lands in proportion to their respective shares in the khewats. The suit was contested by defendants 8 to 14 only through defendant 10 Chuni Lal. It proceeded ex parte against the other defendants. The contesting defendants, inter alia, took the plea that no decree for partition could be passed as in a prior suit for partition for the abadi land of Pana Koran, the abadi land in the the present suit was excluded from partition by the mutual consent of the parties and consequently the suit was not maintainable. The trial Court dismissed the suit by its judgment and decree dated January 21, 1953 on the view that the area in dispute in the present suit did not seem to have been excluded from partition in the earlier suit for any specific reason and there was nothing to show that the parties had reserved their rights to get the same partitioned later on.2. The plaintiffs filed a first appeal being Regular First Appeal 67 of 1953 in the High Court of Punjab at Simla. In this first appeal a compromise was arrived at between the plaintiffs and defendants 8 to 14. Eventually the High Court accepted the compromise and disposed of the appeal in terms thereof by its order dated September 16, 1954. A preliminary decree in terms of the compromise followed. At the instance of some of the plaintiffs and in accordance with the terms of the compromise, Chaudhary Pat Ram was appointed Commissioner to effect the actual partition on the spot for the preparation of the final decree. Proceedings went on before him for quite some time in which some of the defendants who were not parties to the compromise also took part. The Commissioner submitted his report. Several objections were filed on behalf of the parties to the Commissioners report. One of the main stands taken on behalf of the defendants who had not joined the compromise was that since they were not parties to the compromise and since no preliminary decree had been passed against them, no final decree either could be passed, the compromise entered into between the plaintiffs and defendants 8 to 14 had adversely affected their rights and the final decree on the basis of such compromise was affecting their interests in the suit lands. The trial Court overruled all the objections and passed a final decree on October 28, 1962 (sic). From the said decree, Regular First Appeals 20 and 49 of 1958 were filed by some of the defendants. The High Court has taken the view that the terms of the compromise show that defendants 8 to 14 derived benefits under it at the cost of the remaining defendants who were not parties to the compromise. No compromise decree could be passed against the defendants who were not parties to the compromise nor was any ex parte preliminary decree passed against them by the High Court on September 16, 1954 in the earlier appeal. In absence of a preliminary decree, no final decree could be made against them. Hence this appeal.

Reasoning:
We do not, however, find alike (b) of Rule 12 in relation to the application under Rule 13 providing for the condonation of the delay under Section 5 of the Limitation Act. Nonetheless the power of this Court under Order XLV, Rule 3 will be available for enlarging the time fixed by Rule 14 for the filing of an application under Rule 13. On the facts and in the circumstances of this case, we enlarge the time and direct that the legal representatives of appellant 16 be substituted as parties to this appeal. Adjournment of the hearing of the appeal was not asked for by the appellant on that account.7. Now coming to the merits of the appeal, we find that we have got to dismiss it and there is no way out although we were distressed to find that all labours, expenses incurred so far for the purpose of getting the final decree prepared for about a quarter of a century by now are lost and the whole thing is going to end in fiasco. It is unfortunate that due to an obvious mistake which, of course, seems to have been inadvertently committed by all concerned including the High Court at the time of the disposal of the earlier appeal on September 16, 1954, no preliminary decree even ex parte was passed against the defendants other than those who had entered into the compromise.