Full Judgment
Gurusharan Sharma, J.
1. Partition Suit No. 40 of 1971, filed by the plaintiff-appellant herein was decreed on 17.6.1986 and she was held entitled to 1/2 share in Schedule-1 and 1/5 share in Schedule II lands.
2. The defendants 1st set-respondents herein preferred Title Appeal No. 38 of 1986 against the said judgment and preliminary decree.
3. During pendency of the appeal, the plaintiff transferred some of the suit lands and thereupon a petition dated 18.1.1991 (Annexure4) was filed on behalf of the defendant, who was sole appellant in appeal to add those purchasers as respondents third party to the appeal.
4. On 27.4.1991 the parties were heard on the said petition for addition of parties and by the impugned order dated 30.4.1991, the learned Fourth Additional District Judge was pleased to allow the petition and directed the purchaser to be added as respondents-third party.
5. It appears that in the said order it was observed that if the persons who have purchased part of the suit property after preliminary decree were added as parties the appellate decree would not accord to the trial Court's decree and confusion would arise at the time of execution of the decree.
6. The first appellate Court, therefore, found that in the event the petition for addition of those purchasers was allowed the said record must be sent down to the trial Court for necessary amendments in the pleadings of the parties as also the decree passed. The learned Additional Judge after directing the purchasers to be impleaded as respondents-third party in Title Appeal No. 38 of 1986 set aside the trial Court's judgment and remanded the case to the trial Court for fresh decision. The trial Court was also directed to allow the amendments in pleadings of the parties. On such petition being filed before it and also to allow the parties to adduce additional evidence, if any, but to the extent of amendment only. The plaintiff has, therefore, filed this appeal under Order XLIII Rule 1(u) of the Code of Civil Procedure against the said order dated 30.4.1991. I find that two pages of the impugned order are missing in the certified copy of the order under appeal which is evident from the original order available in the lower Court records which was called for in this appeal.
7. It is not in dispute that the plaintiff's suit for partition was decreed and as stated above and while an appeal against the said preliminary decree was pending the plaintiff transferred some of the suit lands and thereafter those transferees were impleaded as respondents third party.
8. In my view, in case the first appellate Court was pleased to add purchasers from the plaintiff as parties, it was not necessary either to set aside the trial Court's judgment and preliminary decree or to remit the case to the trial Court for fresh decision.
9. In the appeal the Court was required to examine as to whether the preliminary decree passed in favour of the plaintiff for partition was justified and the plaintiff was entitled to any share in the suit property. Transfers made were obviously hit under the provisions of Section 52 of the Transfer of property Act, and at any rate a transfer beyond the plaintiff's share was void and not binding on the other part.
10. I do not find that any amendments in the pleadings were either sought for or required on this score the fact remains that a final decree pursuant to the impugned preliminary decree was not yet passed. I have, therefore, no option but to set aside the impugned
JUDGMENT / ORDER
dated 30.4.1991 whereby trial Court judgment and decree was set aside and the case was remitted to the trial Court for a fresh decision.
11. I therefore, direct the first appellate Court to decide the appeal on merits in accordance with law.
12. In the result, this appeal is allowed with the aforesaid directions, but without costs.
13. Let the records be send down forthwith.