In a partition suit, there were two types of properties revenue and town properties, The
suit was preliminary decree in 1960, later final decree proceeding started in 1987, the
court appointed municipal commissioner to divide town properties and sent record to respective
tahsildars to divide revenue properties.
The part of the final decree proceedings and execution of properties with respective town
properties is fully completed in 1993 and respective possession is also given to decree
holders, but the other part of final decree with respect to only revenue properties is also
completed in 2011 but some of parties preferred appeal and is still pending.
Question: One of the decree holder who has joint possession of town properties with his
other heirs wants to divide properties among themselves, since there was dispute, they have
filed a seperate partition suit to divide town properties, but the trial court has rejected
or barred the suit under order 2 rule 2 cpc stating the other suit for revenue properties
which is still pending in appeal, go and lay your claim in that suit,
but we had already had filed an Interlocutary application in the Fdp court in 2009 but it
rejected it stating shares of heirs of decree holders will not be determined by this FDP
court, here heirs are in this suit only to reperesent the decree holders since they are dead.
Is the trial court right in dismissing our partition suit as our claim at present was only
to divide the town properties which are in joint possesion and the other suit which is
pending in appeal is only for revenue properties which we have not included in this new
partition suit plaint. If so or we have to wait till that suit in appeal has to complete to
divide our properties it almost 20 years since the town properties are in joint possession.