JUDGMENT
Ashwini Kumar Sinha, J.
1. The members of the defendant first party in Title Suit No, 38 of 1949 are the appellants in this second appeal arising out of the judgment of affirmance.
2. The plaintiffs of the aforesaid title suit filed a suit fur partition of 33 bighas and 19 dhurs of lands appertaining to J. B. Nos. 35 and 75 of Kajbur. fully described in the schedule, appended to the plaint. The plaintiffs claimed 1/3rd share in the properties. The suit was decreed and the :plaintiffs claim for partition was allowed and the plaintiffs were allowed to have-a separate Patti of 1/3rd share in the lands and another Patti of 1/3rd share was to be allotted to defendant No. 3 Mt. Singha and the remaining Patti was to be allotted to defendants Nos. 1, 1/a and 2. Accordingly a preliminary decree was drawn. After the preliminary decree was drawn the Amin Commissioner was appointed to effect the partition by metes and bounds and the Court directed the Amin Commissioner to take into consideration the existing position of the parties and to maintain the same to carving out the separate Takhta by partition as far as practicable. The plaintiff took all steps for preparation of the final decree. The Amin Commissioner submitted his re-port, Batwara statements and the map showing allotment of lands in accordance with the preliminary decree to the respective parties (words have been underlined by me).
3. No objection was filed by any party against the report of the Amin Commissioner and hence the Court, confirmed the same by its order dated 21-11-1968. This is pertinent by the Court’s order dated 21-11-1969:
“49/2141-68 :– Parties have taken no step. No objection has been raised by either party against the report of the Amin Commissioner.
Order
Let the report of the Amin Commissioner be confirmed. Report, Batwara statements and the map shall form part of the final decree. Final decree will be prepared on filing of requisite non-judicial stamps.”
Sd/- N.K. Jha
S.J.       Â
4. In pursuance of the aforesaid order the final decree was prepared and sealed, and signed.
5. The defendant first party-appellants, it seems, having Jailed to file an objection to the report of the Amin Commissioner in time, filed a petition on 30-1-1-969 under Section 151 of the Civil P. C. (hereinafter referred to as ‘the Code’) and prayed for recall of the order dated 21-11-1968 by which the Court had confirmed the report of the Amin Commissioner on the ground that the Amin Commissioner, while allotting the kinds to the respective parties could not alfot 1/3rd share to Mt. Singha (defendant No. 3) as, according to defendant-first party, Mt. Singha having got married after the preliminary decree, was not, in law, entitled to any share in her father’s property. This application riled by the defendant-1st party-appellants was considered by the trial Court and the prayer for recall of the order of confirmation of the Amin Commissioner’s report was rejected and the final decree was ordered to be prepared on the basis of (he report of the Amin Commissioner. It is only thereafter that the final decree was sealed and signed on the 2nd July. 1969.
6. The defendant-1st party-appellants preferred an appeal before the lower appellate Court and contended, firstly,, that Mt Singha (defendant No, 3) could not retain possession of her father’s property after her marriage in the eye of law. In order to support his contention, the defendant-1st party-appellants relied upon the Santhal Customary Law which, according to defen-dant-1st party-appellants, was that an unmarried daughter was entitled to retain possession of her deceased father’s property only till her marriage and the moment unmarried daughter stands married, she loses all her rights in the properties of her father; secondly, it was contended before the lower appellate Court that in view of the fact that Mt. Singha (defendant No. 3) stood married after the preliminary decree, the Amin Commissioner should have made only two separate patties, one Patti of eight annas to the plaintiffs and the other Patti of eight annas to the defendant-1st party and lastly, that in view of the fact that the marriage of Mt. Singha (defendant No. 3) having been brought to the notice of the Court, the Court should have recalled the order, dated 21-11-1968 by which the report was confirmed. The lower appellate Court negatived all the contentions advanced by the defendant-1st party-appellants before it and dismissed the appeal.
7. The learned counsel appearing for the defendant-1st party-appellants has reiterated the very same points before me, as were urged on behalf of the appellants in the Court of Appeal below (submission having already been referred to above).
8. The trial Court framed several issues and one of the issues was as follows :
"Issue No. 3. Is the suit bad for mis-joinder of Mt. Singha Soren?" And while deciding this issue the trial Court held as follows :
“Hence she is evidently a necessary party to the suit and is also entitled to a share in the properties when it is partitioned and to retain the same at least till her marriage takes place. She is thus a necessary party to the suit and the issue is accordingly decided in the negative. The question as to what would be the position after her marriage takes place does not arise and need not be decided in the present suit.”
Thus on the date of the preliminary decree, when Mt. Singh (defendant No. 3) was admittedly unmarried, the Court held that she was entitled to her share in the property and very clearly negatived the contention of the defendant-1st party-appe1lants to take into consideration the situation which might arise after her marriage. The trial Court was very correct not to travel beyond the facts as it stood on that date i.e. on the date when the suit was being disposed of and the Court very correctly said that the Court was not concerned as to what would be the position after her marriage takes place and this was not a question needed to be decided in the suit.
9. It is really the very same question which has been agitated by the learned counsel for the appellants before me as Mt. Singha (defendant No. 3), admittedly, stands married after the preliminary decree and before passing the final decree.
10. All the three submissions advanced by the learned counsel for the appellants are, in my opinion, interlinked and the main submission on behalf of the appellants is that the share allotted to Mt. Singha (defendant No. 3) by the Amin Commissioner was against the customary law prevalent in the Santhal Parganas because Mt Singha (defendant No. 3) admittedly, stood married after the preliminary decree and by the marriage lost her right in the properties of her deceased father.
11. There is no force in the contention advanced by the learned counsel for the appellants. The trial Court specifically held that Mt. Singha (defendant No. 3) was also entitled to the share and in pursuance of the trial Court judgment, the Amin Commissioner allotted the due share to her, The trial Court observed to the effect that the question as to what would be the position after her marriage takes place did not arise in the suit and was not needed to be decided in the suit. The learned counsel for the appellants has made a grievance that, in view of the changed situation i. e. Mt. Singha having stood married, the Court below could and this Court as well can take notice of the event that happened after passing of the preliminary decree and if the Court can take notice of subsequent event, the share allotted to Mt. Singha (defendant No. 3) must be set aside in view of the customary law prevalent in Santhal Parganas (as after marriage, Mt Singha lost all her rights aver the properties left by her father).
12. Amin Commissioner submitted his report after allotting a share to Mt. Singha (defendant No. 3). On submission of the report of the Amin Commissioner, the plaintiffs or the defendant-1st party could file objection to the Amin Commissioner’s report but, as is evident from the order dated 21-11-1968 no party filed any objection to the report of the Amin Commissioner and Amin Commissioner’s report was confirmed. After the confirmation of Amin Commissioner’s report, the defendant-1st party, if was aggrieved, could move the higher Court against the order dated 21-11-1968. This was not done by the defendant-lst party-appellants. Instead, the defen-dant-1st party filed an application under Section 151 of the Code on 30-1-1969 praying to the Court below to recall the order dated 21-11-68 by which the Amin Commissioner’s report was confirmed. This application filed by defendant-lst party-appellants was duly contested by other parties and the Court, after hearing the parties, rejected the same on merit. Here again defendant-1st party could move the higher Court as against the order rejecting the application filed under Section 151 of the Code but this, too, was not done by the defendant-1st party-appellants. Thus the order dated 21-11-68 became final and the final decree had to follow in pursuance of the order dated 21-11-1968. In my opinion, the final decree drawn up in this case was absolutely consistent with the preliminary decree and in accordance with toe judgment dated 17-6-1952.
13. The scope of the suit filed by the plaintiffs was only whether the plaintiffs were entitled to 1/3rd share in the property sought to be partitioned. The trial Court held that Mt. Singha (defendant No. 3) was entitled to a share, This finding bas been upheld by the lower appellate Court. It Mt. Singha (defendant No. 3), by marriage, after the preliminary decree and before passing of the final decree, has lost her right in the properties left by her deceased father and consequently if the share of the plaintiffs and that of the defendant-1st party is enlarged that is to the extent of eight annas each; this matter, in my opinion, can be agitated separately in a regular title suit to be instituted by any of the parties affected. One thing is clear that the submission advanced before me by the learned counsel for the appellants to the effect that the defendant-1st party-appellants should be declared to have eight annas now, so the plaintiffs, cannot be accepted and is rejected; as, on this new cause of action any of the affected party, in the changed circumstances, can bring a regular title suit and I hold that this submission, as it travels beyond pleadings, of the parties, cannot be allowed to be agitated in this second appeal arising out of the decree passed by the lower appellate Court.
14. The last submission of the learned counsel for the appellants, to the effect that the factum of Mt. Singha’s marriage having been brought to the notice of the Court, the Court should have recalled the order dated 21-11-1968, needs only to be referred to be rejected; as I have already stated above that defendant-1st party-appellants had not only one but two occasions to move the higher Court against the order dated 21-11-1968 and against the order rejecting the application filed under Section 151 of the Code but they did not avail of it. I further hold that the Court had no jurisdiction to recall the order dated 21-11-1968 which had become final for the reason that it was not upset by any higher Court.
15. Thus all the submissions advanced by the learned counsel for the appellants fail and this second appeal, accordingly. U dismissed but without costs.