Final decree must partition remaining property by metes and bounds when co-sharers alienate more than their share.

The Respondent No. 1 (plaintiff) filed a partition suit in 1977 [T.S.(P) No. 66 of 1977] seeking an 8-anna (50%) share of 'A' Schedule properties inherited from a common ancestor, Mahesh Roy

A preliminary decree was passed on June 14, 1993, declaring the plaintiff’s 50% share, which was ultimately upheld by the High Court in 2019

During final decree proceedings, a Survey Commissioner reported that out of 127 gandas of decretal land, the defendants (appellants) had sold 78 gandas to third parties and 8 gandas were forcibly occupied, leaving only 41 gandas vacant

The Trial Court accepted a second Commissioner's report and directed demarcation of these 41 gandas for the plaintiff

The appellants challenged this, claiming the Survey Commissioner failed to account for land previously acquired by the Government for a National Highway

The Lower Appellate Court dismissed the appeal and an amendment application

1. Whether the final decree proceedings were vitiated by the failure of the Survey Commissioner to account for land acquired by the State Government

2. Whether the defendants can raise objections regarding land acquisition at the final decree stage when such facts were noted during the preliminary decree stage

The court primarily applied Section 100 of the Code of Civil Procedure regarding the requirements for a Second Appeal

It relied on the principles of partition law as elucidated in Shub Karan Bubna v. Sita Saran Bubna, which establishes that a preliminary decree determines the rights of the parties while the final decree effectuates the actual division by metes and bounds

It further adhered to the principle of finality of litigation, holding that findings of fact in a preliminary decree that have attained finality cannot be re-agitated during final decree execution

The court reasoned that the appellants' objection regarding land acquisition was factually and legally unsustainable. It noted that the Trial Court, while passing the preliminary decree in 1993, had already recorded (via Exhibit-1) that the State had acquired 2 gandas of land and paid compensation to the predecessors of both parties as early as 1959

Consequently, this acquired land was never part of the 'A' Schedule property brought to suit in 1977

The court found that since the preliminary decree findings—including the extent of the property—had been affirmed up to the High Court in a previous RSA, the defendants were precluded from raising these settled issues to delay the final decree

The court further observed that since the defendants had already sold 78 gandas (exceeding their 50% share of the 127-ganda total), the plaintiff was legally entitled to the remaining 41 vacant gandas

The direct answer to the issues is that the Survey Commissioner's report was valid and the defendants cannot obstruct the final decree based on settled facts. The orders of the lower courts were upheld, and the final decree for 41 gandas in favor of the plaintiff stands