Mareddy Venkateswarlu vs Bondili Lakshmi Bhai Died
2021 Latest Caselaw 3086 AP

           THE HONOURABLE SRI JUSTICE D.RAMESH

           CIVIL REVISION PETITION No.388 of 2020

ORDER:

The Petitioner is the third party and aggrieved by the orders

dated 25.11.2019 passed in I.A.No.554/2018 in I.A.No.560/2017 in

O.S.No.333/2015 on the file of the Principal Junior Civil Judge,

Markapur, Prakasam District, present Revision Petition is filed.

2. The petitioner filed I.A.No.554/2018 in I.A.No.560/2017 in

O.S.No.333/2015 to add the petitioner as 16th respondent in

I.A.No.560/2017 in O.S.No.333/2015 under Order I Rule 10 CPC.

Respondents 1 to 5 filed a suit against the respondent no.6 to 20 for

partition of the schedule properties. An extent of Ac.2.44cents in

Sy.No.299/3 and an extent of Ac.0.25cents in Sy.No.301/A of

Markapur was originally belongs to one Kanala Chinna Venkatamma,

D/o Venkata Reddy who purchased the said property under registered

sale deed dated 06.02.1949 and obtained possession. Since then she

has been in exclusive possession and enjoyment of the said

properties. Thereafter one Akula Veesamsetty Mallaiah, purchased an

extent of Ac.0.28cents out of Ac.2.44cents in Sy.No.299/3 and an

extent of Ac.0.02cents out of Ac.0.25cents in Sy.No.301/A total

extent of Ac.0.30cents in the above said survey numbers from one

Kaanala Chinna Venkatamma under registered sale deed dated

02.9.1969. From that day onwards Akula Veesamsetty Mallaiah had

been in exclusive possession and enjoyment of the same. From the

said Akula Veesamsetty Mallaiah, the petitioner has purchased

400sq.yards of site vide registered sale deed dated 05.12.2012 and

subsequently the said deed was rectified and the rectification deed

DR,J CRP.No.388 of 2020

dated 01.12.2016 and since then the petitioner was in continuous

possession and enjoyment of the said 400sq.yards.

3. While that being the situation, one Bondili Lakshmi Bai filed a

collusive suit against respondent no.2 to 10 i.e. O.S.No.333/2015 and

subsequently with the collusion of all parties preliminary decree has

been passed on 06.01.2017 and they have also filed I.A.No.560/2017

for passing of final decree. The property purchased by the petitioner

in the year 2012 is also subject property in the said suit. After

knowing about the preliminary decree and filing of I.A.No.560/2017

for passing final decree, the petitioner filed the present I.A. for

impleading him as defendant no.16 in the said suit, as he is necessary

and affected party.

4. Respondents 1 to 5 filed their counter denying the averments of

the petition. They have specifically contended that the alleged vendor

of the petitioner i.e. Akula Veesamsetty Mallaiah has no semblance or

right or interest over the suit schedule property. The 12th respondent

i.e. 12th defendant and this petitioner conspired with each other and

fabricated collusive document which is having no legal existence. In

fact they have filed suit i.e. O.S.No.333/2015 in the year 2015 and

with this connection, after filing the suit with the collusion of 12th

defendant, the petitioner has filed a rectification deed and the same

was rectified on 01.12.2016 which clearly establishes that the

petitioner herein is with the collusion of 12th defendant and only to

knock away the property, filed the present petition with a fabricated

document. Further they have stated that in fact the petitioner has

filed a separate suit and the same is pending before adjudication in

the same Court. Hence after passing the preliminary decree, this

petitioner has no right to hesitate and to interfere at the stage of

DR,J CRP.No.388 of 2020

passing final decree. When a substantial suit is pending filed by the

petitioner, this petitioner is not a necessary party to implead in this

suit.

5. Considering the rival submissions, the Court below has

dismissed the I.A. filed by the petitioner for impleading him as

defendant in the suit. As against the same, the present revision is

filed.

6. Learned Counsel appearing on behalf of the petitioner submits

that he purchased the property of 400sq.yards from Aakula

Veesamsetty Mallaiah under registered sale deed dated 05.12.2012

and subsequently, he erected shop rooms and also established one ice

factory in the said premises and each and everyone in the locality

knows that he is in possession of the subject property and

subsequently he also filed rectification application and he got rectified

the mistake through rectification deed dated 01.12.2016. He is a

bonafide purchaser and by investing huge amounts, he purchased the

land and constructed shop rooms and he is in actual possession of the

subject property and hence he is necessary party to the proceedings.

7. Learned Counsel further submitted that though he filed a

separate suit, but if the final decree is passed relating to the subject

property, he is the most affected party and all his rights will be

infringed. There is no bar for impleading him a party defendant even

after passing preliminary decree and the suit for partition became

final only after passing the final decree proceedings. In the instant

case only preliminary decree is passed and before passing final

decree, the same came to the knowledge of the petitioner. Hence he

filed present I.A for impleading him as defendant no.16 in the suit.

DR,J CRP.No.388 of 2020

8. To support his contention he relied on the judgment of the

Madurai Bench of Madras High Court reported in between S.Pitchai vs.

Ponnammal1 wherein it was stated that:

The Trial Court dismissed the application under Order 1 Rule 10 of the Code of Civil Procedure only on the ground of non-challenge made to the preliminary decree. The Trial Court was of the view that the proper remedy is only to set aside the preliminary decree by initiating appropriate proceedings and not by way of an application to implead in the final decree proceedings.

The power of the Court for addition of parties emanated from Order 1 Rule 10 of the Code of Civil Procedure. Order 1 Rule 10(2) of the Code of Civil Procedure gives jurisdiction to the Court to implead a necessary party either suo-motu or on application, at any stage of the proceedings.

The core issue is as to whether "any stage of the proceedings would include final decree proceedings", so as to enable the Court to entertain an application for impleading, notwithstanding the preliminary decree passed earlier, without the association of the aggrieved third party to the proceedings.

The civil suit for partition is a proceedings which would attain finality only after passing the final decree. The suit for partition must be deemed to be pending on the file of the Trial Court till a final decree is passed on the basis of the preliminary decree.

The Trial Court appears to have formed an opinion that in the absence of an application for impleading at the first instance before passing the preliminary decree or filing a suit to set aside the preliminary decree, application filed for impleading in the final decree petition is not maintainable. There is no legal basis for the said finding. The Court is well within its powers to amend the preliminary decree or pass a second preliminary decree at the instance of the party who got impleaded in the final decree petition. There is no restriction for passing more than one preliminary decree either to declare the shares or the quantum of share to which a party is entitled. This is so because there is a duty cast upon the Court to decide the entire issues raised in a suit for partition. The rival claim regarding right to claim partition, the property to be partitioned and the share to which the parties are entitled, must be decided once for all. There should be a finality to the final decree passed by the Court. Therefore, all the disputes must be adjudicated well before passing the final decree. The Court is, therefore, at liberty to entertain application from a newly impleaded party to the final decree petition for amendment of the preliminary decree, notwithstanding the fact that he was impleaded only in the final decree petition.

THE LAW:

The Hon'ble Supreme Court in Phoolchand v. Gopal Lal [AIR 1967 SC 1470] indicated that there is no prohibition for passing more than one preliminary decree for declaring the correct shares to which parties are entitled. The Supreme Court said:

CRP.No.1066 of 2009 of Madurai Bench of Madras High Court

DR,J CRP.No.388 of 2020

"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 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........................"

Another judgment of the Hon'ble Apex Court reported in

between Phoolchand and Anr. Vs. Gopal Lal2 wherein it was recited

that:

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.

1967 AIR 1470 SC

DR,J CRP.No.388 of 2020

9. Per contra, learned Counsel appearing on behalf of the

respondents has contended that the plaintiffs filed the suit in the year

2015 for division of their properties. Accordingly preliminary decree is

passed. Once preliminary decree is passed, the court cannot go

beyond the preliminary decree. The court has to pass final decree

with regard to the division of the shares as per the preliminary

decree. Apart from that, though the petitioner has filed a separate

suit against the 12th defendant, he has no necessity to implead him as

a party to the suit. Apart from that there is a difference between the

schedule of the petitioner's property and the schedule shown in the

registered deed filed by the petitioner. The schedule of the registered

sale deed filed by the petitioner reads as East- Kochherlakota Canal

Road, South-Land belonging to Taduvoi Subbaratnam, West-

Gundlakamma Bund stone wall and North-land belonging to Battula

Chinna Alluraiah (ome sai kaata). Whereas the schedule of item no.1

of the suit reads as East- Kochherlakota Canal, South-Land belongs to

plaintiff and defendants 1 to 13 in S.No.300/A to the extent of

Ac.0.10cents and land belonging to Battula Alluraiah to the extent of

Ac.0.021/2 cents, West-Gundlakamma river and North-land belonging

to Akula Mallaiah. There is vast difference between the two schedules

and hence the property itself is a separate one and according to the

schedule in the registered sale deed the subject property is a separate

property which is nothing to do with the schedule property in this suit.

Further he submitted that once preliminary decree is passed, the

Court cannot agitate other aspects. To support his contention he

relied on the judgment of the Madras High Court reported in between

Sellamuthu vs. Tamilarasi and others3 wherein it was recited that:

CRP No.3867 of 2007 of Madras High Court

DR,J CRP.No.388 of 2020

The question whether preliminary decree can be reopened has been considered by the Hon'ble Supreme Court in T.Ravi v. B.Chinna Narasimha, reported in AIR 1963 SC 992.

In T.Ravi (supra), the Hon'ble Supreme Court held thus:

In the instant case preliminary decree was passed in the year 1979 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 crystallized in each and every property. Purchaser pendent lite is bound by the preliminary decree with respective 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.

As stated supra, lis pendens purchase by the petitioner is hit by Section 52 of the Transfer of Property Act and there is no need to implead the petitioner as 11th respondent in the final decree petition being I.A.No.138 of 2007. Further, there is every possibility of thinking that the petitioner has been set up by the other defendants to protract the proceedings. It is also seen that defendants 2, 5 to 8 having contested the suit, have conveniently failed to file their counter opposing the impleading petition.

In the instant case, the preliminary decree has attained finality. Therefore, there is no question of impleading the petitioner as respondent No.11.

As stated supra, conveniently, the petitioner kept quiet for long number of years and when the Advocate Commissioner visited the suit properties for division, with an ulterior motive and to protract the proceedings and also to defeat the first respondent from enjoying the fruits of the decree, he filed the petition seeking to implead him as party respondent in the final decree petition, which cannot be entertained and the same has been rightly dismissed by the trial Court.

And Ayyan Traders Pvt. Ltd. Vs. Lingaram Chennaiah (died) per

lrs and ors4 wherein it was recited that:

As long as the preliminary decree remains intact, there is hardly anything, that can be done in the final decree, to protect the rights of the petitioner. The scope of the final decree is confined to division of property into shares, by metes and bounds, and allotment thereof to the concerned sharers. The question as to whether the land purchased by the petitioner was liable to be partitioned, at all, can be the subject-matter of the preliminary decree done. In Raj Kumar v. Sardarilal, 2004 2 ALT 1 the Hon'ble Supreme Court held that a person who is not party to the suit, for partition, can come on record by taking recourse to Order 22 Rule 10 CPC. Reference was made to Section1 46 of CPC, which confers right upon the persons, claiming through parties to the suit, to make applications.

2009 Law Suit (AP) 510

DR,J CRP.No.388 of 2020

The petitioner, no doubt, filed O.S.No.69 of 2003 in the Court of Senior Civil Judge, Mahaboobnagar, against the respondents herein, for setting aside the decree in O.S.No.50 of 1999. An independent suit becomes necessary, if the proceedings, which gave rise to the decree, are not pending. Since a suit for partition is deemed to be pending, till a final decree is passed, the petitioner can certainty get impleaded in the suit, and pursue the remedies. As a matter of fact, the petitioner is already a party to the final decree proceedings. It is axiomatic that he can become party to the suit in its entirety.

Learned Counsel for respondents submits that in view of the

ratio decided in the above said judgments, it is clear that lis-pendence

purchased by the petitioner is itself amounts to transfer of property.

There is no need to implead the petitioner as respondent in the final

decree proceedings. Further held that once preliminary decree

remains intact, there is hardly anything that can be done in a final

decree proceeding. The scope of final decree is confined to divide the

property into shares by metes and bounds and allot to the concerned

sharers.

10. Considering the arguments made by both the parties, no doubt

as per the rulings of the various High Courts and Hon'ble Supreme

Court that there is no bar or prohibition to pass any number of

preliminary decrees. But it is needless to state that once preliminary

decree is passed if the others or third parties shows that their rights

are affected by virtue of the preliminary decree, then only, the same

can be ordered. But at the same time, the Court also to see that after

passing preliminary decree and that too knowing about the pendency

of a substantial suit, whether they can be impleaded as party

defendants in the final decree proceedings.

11. No doubt in the present case, as contended by the learned

Counsel for the respondents that there is a difference in the schedule

mentioned in the registered sale deed as well as the suit schedule

properties and apart from that the pendency of suit filed by the

DR,J CRP.No.388 of 2020

petitioner i.e. proposed defendant is also pending before the same

court. In view of the above, there are no merits in the I.A filed for

impleading proposed party as a defendant and accordingly, after

taking relevant facts into consideration, the court below has rightly

dismissed the I.A. filed by the petitioner.

12. In view of the above discussion, there are no merits in this

revision and accordingly, the Civil Revision Petition is dismissed. No

costs.

As a sequel thereto, the miscellaneous petitions, if any, pending

in this Petition shall stand closed.

________________ JUSTICE D. RAMESH

Date: 18.8.2021 RD

DR,J CRP.No.388 of 2020

THE HONOURABLE SRI JUSTICE D.RAMESH

CIVIL REVISION PETITION No.388 of 2020

Dated 18.8.2021

RD