Advice for how to appeal on an old order
Rajendra S Pitake
(Querist) 29 September 2014
This query is : Resolved
After my grandfather passed away, my eldest uncle was looking after ancestral properties. It includes A-lands (agricultural lands fully owned by family), D-lands (Deosthan Inam lands where family is merely manager to collect rent-khand from tenants). He decided to sell some part out of A-lands to third party without consent of others and my father filed suit for partition in 1977.
That finally got decreed in 1982. In the decree it was clearly mentioned that plaintiff has 1/4th undivided share in all the suit properties. {eldest uncle (DF1), youngest uncle (DF2), grandmother(DF3), father (plaintiff) }
Also it was mentioned that land sold is not binding on others and the direction provided in respect of land sold are "The land in respect of which DF1 has executed the agreement of sale, in favour of DF4 (third party) should be as far as possible be allotted to the share of DF1"
Subsequently DF1 made appeal in the district court and that got dismissed. However direction of lower court got twisted as "The direction given by the lower court that the land agreed to be sold to DF4 should be allotted to DF1 is confirmed.”
Later my father filed regular Darkhast and requested excess land sold to DF4 than DF1's share in A-lands.
Various applications & arguments happened meanwhile in lower court and finally we demanded for separate partition in A-lands and separate partition in D-lands by metes & bounds. Lower Court passed order with direction to partition separately as requested however it secured land sold to DF4 with sentence- "However on perusal of the record it is already decided that no excess land sold by DF1 than his entitlement, and therefore a question of re-decision in respect of multiplier does not arise."
Recently I filed writ petition in High Court to get this line removed from the order, but petition got dismissed at the hearing stage. “The submission of the learned counsel appearing for the Petitioners that since the two types of lands have to be partitioned separately, the share of the DF1 cannot be exclusively from the joint family agricultural lands (A-lands). In my view, the said contention cannot be accepted, as there is no such direction issued in the Decree. In my view therefore, the order does not merit any interference at the hands of this Court.”
Kindly guide me what are options here to seek justice. Is it possible to challenge District Court order (1982) that modified decree after so much time has passed? (Considering facts that partition is still not happened and it has modified decree incorrectly causing injustice to us. Is there any special exception?) OR is there any way to go behind Decree through execution proceedings?
R.K Nanda
(Expert) 29 September 2014
consult local lawyer.
Rajendra K Goyal
(Expert) 30 September 2014
It is very difficult to appeal on such an old decree. However, all the documents and case file has to be referred to provide to the point advise, consult local lawyer.
ajay sethi
(Expert) 30 September 2014
consult a local lawyers . documents referred by you have to be seen to advice
Dr J C Vashista
(Expert) 01 October 2014
Put up entire documents before a prudent local lawyer for perusal and guidance. You may get some relief despite the fact it is barred by limitation.
T. Kalaiselvan, Advocate
(Expert) 04 October 2014
Since partition has not taken place, whether there was any application for Final Decree?, any application filed for appointment of an advocate commissioner to measure and divide the properties ?
Your lawyer may be consulted for further action on the above lines, if the above two things have not happened or take his further advise based on the facts of the case.
