Telangana High Court
Smt.Balamreddy Ajantha, vs Smt Laxmi on 19 February, 2024
THE HON'BLE SMT. JUSTICE K. SUJANA
APPEAL SUIT No.81 of 2017
JUDGMENT:
Aggrieved by the judgment and decree dated 02.12.2016 in O.S.No.232 of 2016 passed by the learned XIV Additional District and Sessions Judge, Ranga Reddy District at L.B.Nagar, the present Appeal Suit is filed by the appellants/plaintiffs.
2. Brief facts of the case are that Plaintiffs (appellants herein) filed suit against defendants (respondents herein) seeking declaration that the judgment and preliminary decree passed in O.S.No.300 of 2006 on the file of the learned VII Additional Senior Civil Judge, Ranga Reddy District dated 21.04.2010 as null and void. The plaintiffs and one P. Ravi Kumar together purchased the land in Sy.No.405AA to an extent of 15 guntas, in Sy.No.406AA to an extent of 12 guntas, situated at Poppalguda Village, Rajendranagar Mandal (total extent of Ac.0.27 guntas), from defendant Nos.11 to 14 under registered sale deed bearing Document No.8538/2006, dated 30.05.2006 (which is filed and marked as Ex.A9). Prior to that, defendant Nos.11 to 14 have obtained agreement of sale-cum-GPA from defendant Nos.2 to 4 and 6 to 10 vide document No.148/2006 (certified copy of which is filed and marked as Ex.A8). It is further submitted that by virtue 2 SKS,J A.S.No.81 of 2017 of original sale deed of Ex.A9, they have been in possession and enjoyment of the land purchased by them and their names have been mutated in revenue records and pattadar pass books and title deeds were issued in their favour. The revenue records were filed and marked as Exs.A10 to A15. It is further submitted that one Guttameedi Pentaiah was the original owner of the said land, he has seven sons by name one Jangaiah, D4, D6 to D10. First son of Late Pentaiah by name Jangaiah died leaving behind his wife and son i.e., D2 and D3 herein. Plaintiffs contended that defendant Nos.2 to 5 and 6 to 10 together executed agreement of sale-cum GPA i.e., Ex.A8 in favour of defendant Nos.11 to 14. Apart from that, defendant Nos.1 and 5 are not parties to the document under Ex.A8. Defendant No.1 herein is daughter of defendant Nos.4 and
5.
3. It is further submitted that defendant No.1 therein filed suit vide O.S.No.300 of 2006 on the file of the learned VII Additional Senior Civil Judge, Ranga Reddy, seeking partition and separate possession of her family property against defendant Nos.2 to 14 herein. In the said suit, she sought 1/7th share in the suit schedule property therein. Preliminary decree was passed in the said suit holding that plaintiff therein i.e., D1 herein is entitled for 1/7th share in the suit schedule property therein. Certified copy of 3 SKS,J A.S.No.81 of 2017 judgment and decree passed in O.S.No.300 of 2006, certified copy of plaint, certified copy of written statement, adoption memo filed by D1, 2, 5 to 17 therein, certified copy of written statement and adoption memos were filed and marked as Exs.A1 to A7. They are not parties in O.S.No.300 of 2006 and the said judgment was passed behind back of plaintiffs herein. Therefore, requested the Court to declare the said judgment passed in O.S.No.300 of 2006 as null and void.
4. Defendant No.1 did not choose to file written statement. During the Course of trial, plaintiff No.2 examined himself as P.W.1 and marked Exs.A1 to A5. Neither oral nor documentary evidence was adduced on behalf of the defendants.
5. Heard Sri G. Pedda Babu, learned counsel for the appellants as well as Sri Sinde Mohan Devidhas, learned counsel representing Smt. Anjali Agarwal, learned counsel appearing on behalf of respondent No.1.
6. Learned counsel for the appellants would submit that the judgment of the trial Court is illegal and the trial Court failed to see that the appellants are the absolute owners of the entire land property in O.S.No.300 of 2006, which they purchased under registered sale deed dated 30.05.2006. The suit vide O.S.No.300 of 2006 is collusive suit and the defendants therein did not contest 4 SKS,J A.S.No.81 of 2017 the suit and all the respondents are remained ex-parte in the suit stating that they have no objection to decree the suit and they cannot contest any final decree proceedings. Therefore, prayed the Court to set aside the judgment of the trial Court.
7. While making his submissions, learned counsel for the appellants relied upon the judgment of the Hon'ble Supreme Court rendered in "Phoolchand and another vs. Gopal lal 1", wherein paragraph No.7 of the Judgment, held as follows:
"07. We are of opinion that there is nothing in the Code of Civil Procedure which prohibits the passing of more than one preliminary decree if circumstances justify the same and that it may be necessary to do so particularly in partition suits when after the preliminary decree some parties die and shares of other parties are thereby augmented. We have already said that it is not disputed that in partition suits the Court can do so even after the preliminary decree is passed. It would in our opinion be convenient to the court and advantageous to the parties, specially in partition suits, to have disputed rights finally settled and specification of shares in the preliminary decree varied before a final decree is prepared. If this is done, there is a clear determination of the rights of parties to the suit on the question in dispute and we see no difficulty in holding that in such cases there is a decree deciding these disputed rights; if so, there is no reason why a second preliminary decree correcting the shares in a partition suits are concerned we have no doubt that if an event transpires after the preliminary decree which necessitates a change in shares, the Court can and should do so; and if there is a dispute in that behalf, the order of the Court deciding that dispute and making variation in shares specified in the preliminary decree already passed is a decree in itself which would be liable to appeal. We should however like to point out that what we are saying must be confined to partition suits, for we are not concerned in the present appeal with other kinds of suits in which also preliminary and final decrees are passed. There is no prohibition in the code of Civil Procedure against passing a second preliminary decree in such circumstances and we do not see why we should rule out a second preliminary decree in such circumstances only 1 1967 3SCR 153 5 SKS,J A.S.No.81 of 2017 on the ground that the Code of Civil Procedure does not contemplate such a possibility. In any case if two views are possible and obviously this is so because the High Courts have differed on the question - we would prefer the view taken by the High Courts which hold that a second preliminary decree can be passed, particularly in partition suits where parties have died after the preliminary decree and shares specified in the preliminary decree have to be adjusted. We see no reason why in such a case if there is dispute, it should not be decided by the Court which passed the preliminary decree, for it must not be forgotten that he suit is not over till the final decree is passed and the Court has jurisdiction to decide all disputes that may arise after the preliminary decree, particularly in a partition suit due to deaths of some of the parties. Whether there can be more than one final decree does not arise in the present appeal and on that we express no opinion. We therefore hold that in the circumstances of this case it was open to the court to draw up a fresh preliminary decree as two of the parties had died after the preliminary decree and before the final decree was passed. Further as there was dispute between the surviving parties as to devolution of the shares of the parties who were dead and that dispute was decided by the trial Court in the present case and thereafter the preliminary decree already passed was amended, the decision amounted to a decree and was liable to appeal. We therefore agree with the view taken by the High Court that in such circumstances a second preliminary decree can be passed in partition suits by which the shares allotted in the preliminary decree already passed can be amended and if there is dispute between surviving parties in that behalf and that dispute is decided the decision amounts to a decree. We should however like to make it clear that this can only be done so long as the final decree has not been passed. We therefore reject this contention of the appellant."
8. On the other hand, learned counsel for the respondents would submit that the appellants are not entitled for the cancellation of decree and they cannot file a petition to implead them in final decree proceedings. Therefore, prayed the Court to dismiss the appeal.
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9. Learned counsel for the respondents placed reliance of the judgments of this Court in C.R.P.No.5291 of 2017, wherein in paragraph No.10, it is stated as follows:
"10. In the present case, the petitioners herein were not impleaded as parties to the suit by respondent Nos.1 to 4 - plaintiffs, and obtained a preliminary decree. However, Order I, Rule 10 of the Code permits to any third party to come on record at any stage of the proceedings, but subject to satisfying certain conditions. A bare reading of Order I, Rule 10 (2) of the Code would clearly shows that necessary parties in a suit for partition are all the members of joint family, and in the absence of impleading some of the members of Hindu Joint Family, suit would be defeated. But, here, conveniently the petitioners were not impleaded as parties and obtained apreliminary decree. Even to invoke Order I, Rule 10 (2) of the Code, there must be a right to seek some relief against such party in respect of the controversy involved in the proceedings and no effective decree can be passed in the absence of any such party. In the present facts of the case, the petitioners are allegedly entitled to claim a share in part of the property by virtue of the gift deed executed by late Kurra Venkata Subbaiah in favour of defendant No.2 creating life interest and vested remainder to his children, but he is issueless. Therefore, by reversion, the petitioners are entitled to claim share in the property of late Kurra Venkata Subbaiah and, therefore, they are entitled to come on record. But, the trial Court did not consider the principles to implead third party in a suit for partition. The Hon'ble Supreme Court in Phoolchand v. Gopal lal3, while dealing with a similar issue as regards impleadment of third party at the stage of final decree proceedings observing that there is no prohibition for passing more than one preliminary decree for declaring the correct shares to which parties are entitled, held thus:
"7. We are of opinion that there is nothing in the Code of Civil Procedure which prohibits the passing of more than one preliminary decree if circumstances justify the same and that it may be necessary to do so particularly in partition suits when after the preliminary decree some parties die and shares of other parties are thereby augmented. We have already said that it is not disputed that in partition suits the court can do so even after the preliminary decree is passed. It would in our opinion be convenient to the court and advantageous to the parties, specially in partition suits, to have disputed rights finally settled and specification of shares in the preliminary decree varied before a final decree is prepared. If this is done, there is a clear determination of the rights of parties of the suit on the question in dispute and we see no difficulty in holding that in such cases there is a decree deciding these disputed rights; if 7 SKS,J A.S.No.81 of 2017 so, there is no reason as why a second preliminary decree correcting the shares in a partition suit cannot be passed by the court. So far therefore as partition suits are concerned we have no doubt that if an event transpires after the preliminary decree which necessitates a change in shares, the court can and should do so, and if there is a dispute in that behalf, the order of the court deciding that dispute and making variation in shares specified in the preliminary decree already passed is a decree in itself which would be liable to appeal. We should however like to point out that what we are saying must be confined to partition suits, for we are not concerned in the present appeal with other kinds of suits in which also preliminary and final decrees are passed. There is no prohibition in the Code of Civil Procedure against passing a second preliminary decree in such circumstances and we do not see why we should rule out a second preliminary decree in such circumstances only on the ground that the Code of Civil Procedure does not contemplate such a possibility. In any case if two views are possible -- and obviously this is so because the High Courts have differed on the question - we would prefer the view taken by the High Courts which held that a second preliminary decree can be passed particularly in partition suits where parties have died after the preliminary decree and shares have to be adjusted. We see no reason why in such a case if there is dispute, it should not be decided by the Court which passed the preliminary decree, for it must not be forgotten that the suit is not over till the final decree is passed and the Court has jurisdiction to decide all disputes that may arise after the preliminary decree, particularly in a partition suit due to deaths of some of the parties......"
The same principle is reiterated in later judgment rendered by a learned Judge of Madras High Court in S. Pitchai v. Ponnammal4. In Manohar Lal Chopra v. Rai Bhadur Rao Raja Seth Hiralal5, the same principle was laid down, and this Court in Syed Mohiddin v. Abdul Rahim6, held that third party can be impleaded even after passing of a preliminary decree when the decree was obtained by playing fraud without impleading the persons, who are entitled to claim share in the property. In another recent judgment rendered by a learned Single Judge of this Court in Syed Mujtaba Ali v. Mazharuddin Khan7, an identical question came up and by relying on the decisions Syed Mohiddin5, Ramader Appala Narasinga Raov. Chunduru Sarada8, Sriramula Ramachandram v. Sriramula Bhoodamma9, Ch. Yashoda Devi v. B. Dayakar Reddy10, Krishna Aiya v. Subrahmania Aiyar11, answered the issue holding that as a matter of law, a party can be impleaded after passing of a preliminary decree in a partition suit and before passing of final decree:" 8
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10. Learned counsel for the respondents further relied on the judgment of the Hon'ble Supreme Court in case between Sardar Surjeet Singh Vs. Juguna Bai (Since Dead) and others 2 wherein in paragraph No.13, it is stated as follows:
"13. After hearing the learned counsel for the parties, we are of the opinion that the question whether preliminary decree can be reopened, has been considered by this Court in T. Ravi vs. B.Chinna Narasimha [MANU/SC/0279/2017 : 2017 (3) SCALE 740], in which reliance has been placed on Venkata Reddy and Ors. Vs. Pethi Reddy [MANU/SC/0024/1962 : AIR 1963 SC 992] and in view of Section 97 of Code of Civil Procedure it has been laid down that once the matter has been considered in Preliminary decree, it cannot be reagitated in the appeal against the final decree. Preliminary decree is final with respect to the shares. In T.Ravi vs. B.Chinna Narasimha this Court held as under:
"37. In the instant case preliminary decree can be passed in the year 1970 and the shares were declared to the aforesaid extent of the respective parties therein who were the heirs of Late Nawab Jung. Hamid Ali Khan, defendant No.1, had only 14/104th share in the disputed property. Preliminary decree dated 24.11.1970 has attained finality which was questioned in appeal on limited extent in the High Court which has attained finality by dismissal of LPA on 12.10.1977. Thus the determination of shares as per preliminary decree has attained finality, shares of the parties had been crystalised in each and every property. Pruchaser pendent lite is bound by the preliminary decree with respect to the shares so determined and it cannot be re- opened and whatever equity could have been claimed in the final decree proceedings to the extent of vendor's share has already been extended to the purchasers."
11. Learned counsel for the respondents also relied upon the judgment of the Hon'ble High Court of Karnataka in Case between 2 Civil Appeal Nos.319-320 of 2009 9 SKS,J A.S.No.81 of 2017 "Sri Vinayaka Vs. Smt. Gadigevva @ Neelavva and others 3", wherein in paragraph No.4, it is reads as follows:
"4. It is quite strange to know that petitioner who is purchaser of undivided interest who has no locus in a partition suit has ventured in challenging the order passed on amendment application. While drawing a preliminary decree, a stranger-purchaser has no say in the suit. Merely because, he is impleaded in the suit, will not give a right to him to dictate as to how the suit has to be proceeded with. His rights, if any, in an undivided interest has to be worked out in final decree proceedings."
12. Having regard to the rival submissions and after perusal of the material available on record, it reveals that the contention of the learned counsel for the appellants is that defendant Nos.11 to 14 in O.S.No.300 of 2006 sold the suit property to them and they purchased the same through registered sale deed in Sy.No.405/AA to an extent of Ac.0.15 guntas and in Sy.No.406/AA to an extent of Ac.0.12 gutnas and house bearing No.2-35 admeasuring 272 square yards. The suit is filed for partition of properties of the agricultural land in Sy.No.405/AA to an extent of Ac.0.15 guntas and in Sy.No.406/AA to an extent of Ac.0.12 gutnas and house bearing No.2-35 admeasuring 272 square yards situated at Puppalguda Village at Rajendra Nagar Mandal and also 'B' schedule property house. The said suit is filed by one of the legal heirs of late Pentaiah and the suit is filed on 20.02.2006 as per the plaint. Therefore, the alleged sale deed was made by the defendant 3 W.P.No.106030 of 2022 10 SKS,J A.S.No.81 of 2017 Nos.11 to 14 to the appellants on 30.05.2006 i.e., subsequent to the filing of the suit. However, there is an agreement of sale prior to the suit i.e., on 04.01.2006, as such, the contention of the appellants is that it is a collusive suit. Section 52 of the Transfer Property Act does not apply to it. The Hon'ble Apex Court in Phoolchand and another vs. Gopal lal, observed that "may be more than one preliminary decree can be passed in the partition suits before obtaining the final decree". In the present case, the appellants filed the suit to declare the decree as null and void. Though these parties are not parties to the suit it cannot be declare as null and void. When the final decree is not passed in O.S.No.300 of 2006, the parties can approach the trial Court to implead them as parties in the said final decree proceedings and they can also file the petition to set aside the judgment. That apart this Court in Civil Revision Petition No.5921 of 2017 at paragraph No.10, observed that "third party can be impleaded even after passing the preliminary decree when the decree was obtained by playing fraud without impleading the persons, who are entitled to claim share in the property". Therefore, these parties can file a petition for impleading them as parties in I.A.No.1149 of 2010 filed for seeking final decree and make necessary enquiry and if necessary, the trial Court to pass appropriate decree. In view of the law declared by the Hon'ble Apex Court in Phoolchand and 11 SKS,J A.S.No.81 of 2017 Another vs. Gopal Lal, there is no prohibition for passing more than one preliminary decree for declaring the shares. Therefore, there is no irregularity in the judgment of the trial Court and the parties are advised to approach the trial Court finally to implead them in final decree proceedings in I.A.No.1149 of 2010 in O.S.No.300 of 2006, which is pending before the learned Senior Civil Judge, Ranga Reddy District at L.B. Nagar and it is left open to the parties to file any other petition in the trial Court.
13. With these above observations, the Appeal Suit is disposed of. There shall be no order as to costs.
As a sequel, miscellaneous petitions, pending if any, shall stand closed.
______________ K.SUJANA, J DATE: 19.02.2024 SAI