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
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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
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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
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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
1967 3SCR 153
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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
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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:"
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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
Civil Appeal Nos.319-320 of 2009
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"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
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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
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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.
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K.SUJANA, J
DATE: 19.02.2024
SAI
