JUDGMENT
Bhaskar Bhattacharya, J.
1. This revisional application is at the instance of defendants No. 2 & 7 in a suit for partition by separation of share and is directed against order No. 57 dated March 27, 2004 passed by the learned Civil Judge (Senior Division), 1st Court, Contai, in Title Suit No. 126 of 2000 thereby rejecting an application filed by the petitioners for passing a second preliminary decree after modifying the earlier one.
2. The opposite party No. 1 filed the aforesaid suit for separation of ka-1 schedule property from ka schedule property on the allegation that the parties were co-sharers and that he was entitled to get a specific portion, namely, ka-1 schedule property. The aforesaid suit was contested by the present petitioners thereby resisting the claim of the opposite party No. 1 and their contention was that the suit property was a joint property and as such the plaintiff could not claim any specific portion as full owner thereof and pray for separation of that portion. They however maintained that they had no objection if the entire property was partitioned among the parties.
3. The learned Trial Judge by his judgments and decree dated May 29, 2002 decreed the suit in preliminary form thereby accepting the claim of the plaintiff. By the said decree the learned Trial Judge declared that the plaintiff had full share in ka-1 schedule property and the parties were directed to partition the property amicably in terms of the preliminary decree within a specified time. In default, the parties were given liberty to apply for appointment of a Commissioner for effecting partition in terms of the preliminary decree.
4. The petitioners did not prefer any appeal against the aforesaid preliminary decree and as such the same has attained finality. There being no mutual partition, the plaintiff applied for appointment of a Commissioner and such prayer was allowed. The Commissioner submitted his report thereby separating the ka-1 property from the ka schedule one and such report has also been accepted by the learned Trial Judge.
5. At this stage, the petitioners came up with an application thereby praying for passing a second preliminary decree after modifying the earlier one and for declaration of the shares of the petitioners. The learned Trial Judge by the order impugned herein has rejected such prayer.
6. Being dissatisfied, the petitioners have come up with the present application under Article 227 of the Constitution.
7. Mr. Shau, the learned Counsel appearing on behalf of the petitioners has assailed the order impugned on the ground that the learned Court below refused to exercise jurisdiction vested in him by law by not passing a second preliminary decree declaring their shares in the property. Mr. Shau, in this connection relies upon the decision of the Supreme Court in the care of Phool Chand & Anr. vs. Gopal Lal, . According to Mr. Shau, the suit being one for partition, the court should have passed a second preliminary decree declaring the shares of the petitioners when the final decree has not yet been passed.
8. As pointed out by the Supreme Court in the case of Phool Chand vs. Gopal Lal (supra), in a suit for partition, so long the final decree is not passed, the Court is entitled to pass more than one preliminary decree depending upon the facts and circumstances of the case. For instance, if the Court initially granted preliminary decree declaring only the share of the plaintiff, without declaring separate shares of the different defendants, the Court on the prayer of the defendants can pass further preliminary decree declaring respective shares of the defendants, if such prayer is made before final disposal of the suit.
9. In the case before us, the petitioners have, however, not only prayed for declaration of their shares but also prayed for modification of the preliminary decree already passed. By the preliminary decree, the Court did not declare share of the plaintiff in the entire ka schedule properties but held that the plaintiff had full share in ka-1 schedule property which is a part of ka schedule and directed allotment of that portion to the plaintiff after separating the same from ka schedule. The petitioners did not prefer any appeal against such preliminary decree and as such, the same had attained finality. When the Commissioner separated the portion in terms of the preliminary decree, the petitioners raised objection but the Court accepted the report. Therefore at this stage, the petitioners cannot pray for modification of the first preliminary decree. If the petitioners prayed for only declaring their separate shares in the rest of the ka schedule property, the position would have been different and the Court could grant such prayer. I have, however, already pointed out that the petitioners have prayed for declaring their shares after modifying the first preliminary decree by which the Court allotted ka-1 property exclusively to the plaintiff after declaring his full share in that property. Without challenging that decree by preferring an appeal, the petitioners are not entitled to get the relief prayed for in the application.
10. Thus, the decision cited by Mr. Shau, does not help his clients in any way and the learned Trial Judge rightly rejected the prayer of modification of the first preliminary decree.
11. I, thus, find no merit in this application and the same is dismissed. I make it clear that I have not gone into the propriety of the Commissioner’s report which has been accepted by the Court as the same is not the subject-matter in this application.
12. No. Costs.