(Querist) 23 August 2017
This query is : Resolved
We have a property of 100X40 residential site. it was originally purchased by my grandmother and father jointly in the year 1948. In the year 1991 my father passed away his undivided share devolved to me, my mother and my 3 sisters. Though there was no partition my grandmother sold her half share of the property to stranger. Stranger has filed a partition suit which is currently pending before the court.
In addition to that my grandmother filed an another case in 2007, asking a relief of partition 7/12th of the schedule A property (she has right of half share (schedule B) of schedule A property and also 1 share in my father's share property(schedule C)) and put Stranger in possession schedule B property (which was sold by my grandmother) . In the plaint copy Schedule explained as below.
Schedule A: 100 X 40 site (entire property) Schedule B: 50 X40 site (My grandmother's share of A schedule property, which was sold to stranger) Schedule C: 50 X 40 site ( My father's share of A schedule property)
Since was not in town, we didn't contested the case properly. there was preliminary decree judgement came in partially favor of my grandmother as below. My Grand mother is entitled for 7/12th Schedule Properties. Schedule B property cannot be allotted to stranger, as Property was sold before the partition.
We were not aware of this judgement. Now after the death of my Gramdmother, Now Plaintiff filed a case (in year 2017) for Final decree proceeding based on "My Grand mother is entitled for 7/12th Schedule Properties." preliminary decree. Now we got to know about this judgement,
My Question is:
I read the entire Judgement. In the Judgement Summary, Hon'ble Judge has clearly mentioned that they are decreeing suit excluding schedule B property and my grandmother is entitled for 1/6th share in father's share (schedule C property).
However in the decree it has mentioned has "My Grand mother is entitled for 7/12th Schedule Properties"
Instead of mentioning only 1/6th share of schedule C property. where it mentioned as schedule properties , which includes schedule A, Schedule B and Schedule C. which is a huge error committed by Judge.
Plaintiff has also wrongly pleaded the total share of the A schedule Property. Because of the following reason. A schedule property (100X40) was jointly purchased by Plaintiff My grand mother and My father, Both entitled for half share of Schedule A property. Further on the death of My father (year 1991), It is the contention of plaintiff being the mother of My father she also entitled of 1/6th share along with defendant 1to5 (wife and children’s of My father) in my father’s half share of Schedule A property. Now If we look the number of shares in the schedule A property. One Half share of Plaintiff My grand mother (Schedule B, which already sold to Stranger) and total 6 shares in Father's share. However Plaintiff filed original suit to carve out of 7/12 shares.
Total number of shares cannot be 12 at all.
Since this decree is in favor plaintiff. there are very much silent about this preliminary decree mistake. Plaintiff has file for Final decree case based on this faulty decree.
How this preliminary decree can be corrected now during Final decree proceedings? As time has already barred to appeal against preliminary decree.