Telangana High Court

Motiram Died Per Lrs vs Azeem Unnissa Begum Shaninsha Begum ... on 5 November, 2024

Author: P.Sree Sudha

Bench: P.Sree Sudha

 THE HONOURABLE SMT. JUSTICE P.SREE SUDHA

          SECOND APPEAL No. 530 of 2023

JUDGMENT:

This second appeal is filed aggrieved by the judgment

and decree dated 16.08.2023 passed in A.S.No.287 of 2014

by the learned XXVI Additional Chief Judge, City Civil Court,

Hyderabad in which the judgment and decree passed in O.S.

No. 232 of 1986 dated 01.05.2014 by the learned I Senior

Civil Judge, City Civil Court, Hyderabad was confirmed.

2. Heard both sides. Perused the record.

3. O.S.No.232 of 1986 was filed by the respondent

No.1/plaintiff against defendants for partition and allotment

of 30/84th and to put her in possession of the properties and

if schedule properties are not liable to be partitioned, the

same may be sold and out of sale proceeds the plaintiff be

awarded her share and also for decree of Rs.3,000/- towards

past mesne profits and for mesne profits @ Rs.225/- till the

possession is delivered and for appointment of Commissioner

to partition the properties. The trial Court decreed the suit

on 29.09.1996 and a preliminary decree was passed as

mentioned in Issue No.6. Appellant Nos.2 to 4 were

impleaded as per order dated 26.08.2021 passed in

I.A.No.164 of 2020 in A.S.No.287 of 2014. A.S.No.287 of

2014 was filed by defendant No.19 against the docket order

and final decree dated 01.05.2014 passed in I.A.No.998 of

1999 in O.S.No.232 of 1986. I.A.No.998 of 1999 was filed by

plaintiff under Order XX Rule 18 r/w. Section 151 of C.P.C

for passing of a final decree on the basis of the preliminary

decree dated 28.09.1996 passed in O.S.No.232 of 1986 and

to allot 30/84th share in the petition schedule property to

plaintiff. The docket order dated 01.05.2014 passed I

I.A.No.998 of 1999 reads as follows:

"Copy of Preliminary decree filed and allowed the copy of preliminary decree. Perused the memo dt.07.04.2014, filing by Petitioner No.3 to petitioner No.6 and memo dt.09.04.2014 and memo dt. 25.04.2014 according basing on Advocate Commissioner report and memo. Final decree is passed in favour of finalisation of preliminary decree. Petitioner No.3 is entitled to 2/5 share. Out of 30/84 share of petitioner No.1 and 2. Petitioner No.4 to 6 are entitled to 1/5th share each out of 30/84 share accordingly as mentioned in above said memo. For filing N.J. Stamp to engross final decree call on

04.06.2014."

4. It was also observed that parties did not come forward

for getting registration. It was also observed that the suit in

O.S.No.75 of 1986 was filed on 07.04.1986 and a compromise

decree was passed on 09.04.1986, within two days from the

filing of the suit. The suit for partition in O.S.No.232 of 1986

was filed on 03.03.1986 prior to the filing of O.S.No.75 of

1986, as such, the compromise decree does not create any

rights in favour of the parties. The appellant No.1 has got no

valid title to the land to an extent of 872 Sq.yards in

Sy.No.354 of Bhainsa as claimed by him and as such no land

can be allotted in his favor by working out equities claimed by

him. He has not contested the suit and has not challenged

the preliminary decree in O.S.No.232 of 1986 and

accordingly, the first appellate Court dismissed the appeal.

Aggrieved by the judgment of the first appellate Court, the

appellants herein filed the present Second Appeal with the

following substantial question of law:

a. Whether both the Courts are justified that dismissing the Appeal where the Appellant is seeking a relief of equities after passing the Final Decree from his owner who are the shareholders and partiers to the preliminary decree?

b. Whether both the Courts are justified for giving finding regarding the weakness of the title of the Appellant as his vendors have not denied the possession and ownership over the Item No.4?

c. Whether both the Courts are justified for giving finding that appellant is not the party in the preliminary decree, it is established law that the person who is claiming equity from the vendors who are the parties to the preliminary decree and final decree as such the Appellant need not necessary to be the party who is claiming the equity on behalf of his vendor who are the Respondents No.7, 9, 10, 11, 12, 13, 14 & 20 herein.

d. Whether both the Courts are justified that the law is very clear that the Bonafide purchasers claim the equities from the owners, which was ignored by the Appellant Court and dismissed the Appeal.

5. In the synopsis submitted by appellants, they stated

that appellant Nos.2 to 4 are the legal heirs of defendant

No.19 in O.S.No.232 of 1986. Defendant No.19 is bonafide

purchaser of part of Schedule-IV property to an extent of

1184 Sq.Yards which is dwelling house bearing No.1-5-76,

Main road, Bhainsa, out of which 354 Sq.Yards through

registered sale deed Doc.No.455/1986 dated 03.04.1986.

The remaining 872 Sq.Yards of land purchased through

Compromise Deed vide O.S.No.75 of 1986 on the file of

Junior Civil Judge, Bhainsa and that the appellants are in

peaceful possession and enjoyment of the property. They

also filed first appeal docket order against the final decree

proceedings and the same was passed on 16.08.2023,

aggrieved by the same, they preferred the present Second

Appeal. They also filed 5 documents including judgment and

decree in O.S.No.75 of 1986 and registered sale deed vide

Doc.No.455 of 1986, through which the appellant No.1

become the owner of the item No.4 part of Schedule Property.

6. Appellants further stated that the final decree was

passed by the Court without allotting specific shares to

respondent Nos.7, 9, 10, 11, 12, 13, 14 and 20 and share

was not allotted to respondents in item No.4 of the schedule

property, who are vendors of appellant No.1 herein. In

O.S.No.232 of 1986, specific issue was framed whether the

property was sold to respondent Nos.17 and 18 is liable to be

partitioned including purchasers, but the trial Court has

decided the issue in favour of plaintiff in Suit stating that

item No.4 of the schedule property is Matruka property and it

clearly shows that the property belongs to plaintiff and

defendants co-owners, thus, appellants herein entitled to

seek equities towards the shares of defendants, but it was not

appreciated by the first appellate Court. The registered sale

deed vide Doc.No.455/1986 executed by defendants in favour

of appellants but it was ignored by the first appellate Court

and the trial Court has discussed only agreement of sale

which was not filed by appellants herein. The first appellate

Court came to the conclusion that the property was

purchased pending litigation, in fact O.S.No.232 of 1986 was

filed on 03.03.1986 and numbered on 06.03.1986, whereas

O.S.No.75 of 1986, appellants became the owners through

partition decree from defendants filed on 07.04.1986. There

is no evidence to establish that the appellants herein received

summons of O.S.No.232 of 1986, as such it cannot be said

that decree was obtained during the pendency of the suit and

it was not appreciated by the first appellate Court properly.

The vendors of the appellants have no problem to allot the

equity shares to the appellants and they have not resisted in

any proceedings, but the first appellate Court dismissed the

appeal stating that appellants are not asking for any share

from the plaintiff and appellants claiming equity shares

against their vendors who are defendants in the suit and also

having share in item No.4 property. The final decree itself is

not prepared in proper way, shares were allotted to plaintiff

but defendants' shares were not allotted among defendants

and simply stated that "defendants share", as such decree is

non executable decree and once the final decree itself is

defective, the matter is liable to be remanded back to pass

final decree with clarification of shares of plaintiff and

defendants. As per the preliminary decree, the share of

plaintiff is 30/84, whereas in final decree, share was allotted

to 30/80 and the share of plaintiff was improved without

preliminary decree, as such final decree proceedings are

defective. The equities can be claimed only after final decree

proceedings, as such they rightly filed appeal. Appellants are

bonafide purchasers and having possession prior to 1986 and

the same was admitted by plaintiff. Even the Advocate

Commissioner, in his report observed that defendant No.19's

legal heirs are in possession of the house which is dwelling

house.

7. Learned counsel for appellants relied upon a decision

rendered by the Hon'ble Apex Court in Dhanlakshmi and

Others Vs. P.Mohan and Others 1, in which it was held as

follows:

5. Section 52 deals with a transfer of property pending suit. In the instant case, the appellants have admittedly purchased the undivided shares of Respondents 2, 3, 4 and 6. It is not in dispute that the first respondent P.Mohan has got an undivided share in the said suit property. Because of the purchase by the appellants of the undivided share in the suit property, the rights of the first respondent herein in the suit or proceeding will not affect his right in the suit property by enforcing a partition.

Admittedly, the appellants, having purchased the property from the other co-sharers, in our opinion, are entitled to come on record in order to work out the equity in their favour in the final decree proceedings.

8. A brief synopsis was filed by respondent Nos.1 to 6.

They contended that appellant No.1 was defendant No.19

before the trial Court in O.S.No.232 of 1986 filed for partition

and separate possession by respondent No.1/plaintiff and

when respondent No.1/plaintiff died, his LRs were brought

on record as respondents No.2 to 6. Appellant

No.1/defendant No.19 was remained exparte in the trial

Court and he died on 05.10.2009 and his LRs were brought

(2007) 10 SCC 719

on record as appellant Nos.2 to 4. Initially, the suit is filed

for partition and preliminary decree was passed on

28.09.1996. None of the defendants filed an appeal

challenging the preliminary decree in O.S.No.232 of 1986 and

thus preliminary decree attained finality and continued to

bind all including the alleged vendors of the deceased

appellant No.1. After the preliminary decree, respondents

No.1 to 6/LRs of plaintiff filed I.A.No.998 of 1999 seeking to

pass final decree and accordingly the final decree was passed

on 01.05.2014. LRs of defendant No.19/appellants No.2 to 4

filed A.S.No.287 of 2014 challenging the final decree dated

08.07.2014 passed in I.A.No.998 of 1999 and the same was

dismissed. Subsequently, two more final decrees were

passed on 17.11.2014 and 19.11.2014 and they have also

attained finality and there is no appeal filed against those

final decrees, but the Courts below have declared the rights

of the parties which have come to an end and appellants

cannot now seek to re-agitate and unsettle the settled rights

of the parties at the belated point of time as the suit is of the

year 1986.

9. Respondent Nos.2 to 6 further stated that deceased

appellant No.1 herein claimed to have purchased 1184

Sq.yards in Sy.No.354, Bhainsa under registered sale deed

dated 03.04.1986 but the sale deed was not filed before the

trial Court and moreover the purchase took place during the

pendency of the suit. The suit for partition was filed on

03.09.1986 and the sale deed was executed on 03.04.1986

and thus the purchase has got no value and cannot create

any rights in favour of purchaser and it was also held that

item No.4 is the Matruka property, as such Iqbal Ali Khan

has no rights to sell the property. The trial Court framed

issues at serial No.3 and held that suit schedule property

does not belong to Iqbal Ali Khan and thus the rights of Iqbal

Ali Khan including respondent Nos.13 and 25, who are LRs of

Iqbal Ali Khan were negatived. There is no appeal filed by

them against preliminary decree, as such the appellants, who

claims to have purchased from LRs of Iqbal Ali Khan cannot

maintain independent appeal, even for claiming any equities.

The alleged vendors of deceased appellant No.1 also did not

file any appeal against preliminary decree, as such the

present second appeal claiming for equities does not arise

and thus requested the Court to dismiss the present appeal

as it is not maintainable in view of legal bar under Section 97

of CPC. There are numerous respondents whose rights were

already settled by virtue of three final decrees, as such

present Second appeal, only against one of such final decrees

is not maintainable. Under Section 97 of CPC, the appellant

herein cannot maintain the present second appeal and

cannot seek to dispute the correctness of preliminary decree

in the appeal filed by him only against the final decree.

10. Learned counsel for respondents relied upon a decision

rendered by the Hon'ble Apex Court in Mool Chand and

Others Vs. Dy.Director, Consolidation and Others 2, in

which it was held that "Failure to appeal against preliminary

decree would operate as a bar to raising any objection to it in

appeal filed against final decree."

29. If an appeal is filed against the final decree without there being any appeal against the preliminary decree and the preliminary decree becomes 'unassailable' on account of Section 97 CPC, the notification under Section 4 would abate the proceedings relating to the final decree without in any way touching, impairing or affecting the preliminary decree. The reason, to repeat, is obvious. Once a preliminary decree is passed, the proceedings so far as declaration of rights or interests in the land are concerned, come to an end. Those rights are to be worked out by the final decree. In a case, therefore,

(1995) 5 SCC 631

where a preliminary decree has already been passed and only the proceedings relating to the preparation of final decree are pending in any court, either at the original stage or at the appellate or revisional stage, it cannot be said that proceedings relating to "declaration or determination of rights in the land"

within the meaning of Section 5(2) of the Act are pending."

11. He further relied upon a decision rendered by the

Hon'ble Apex Court in Kaushalya Devi and Others Vs

Baijnath Sayal (deceased) and Others 3, in which it was

held as follows:

The whole object of enacting Section 97 was to make it clear that any party feeling aggrieved by a preliminary decree must appeal against that decree; if he fails to appeal against such a decree the correctness of such a decree cannot be challenged by way of an appeal against the final decree, which means that the preliminary decree would be taken to have been correctly passed. When Section 97 provides that the correctness of the preliminary decree cannot be challenged if no appeal is preferred against it, it clearly provides that if it is not challenged in appeal it would be treated as correct and binding on the parties. In such a case an appeal against the final decree would inevitably be limited to the points arising from proceedings taken subsequent to the preliminary

AIR 1961 SC 790

decree and the same would be dealt with on the basis that the preliminary decree was correct and is beyond challenge.

12. He also relied upon a decision of the Hon'ble Apex

Court in Civil Appeal Nos.2843-2844 of 2010, in which it

was held as follows:

The conditions mentioned in the Section 100 CPC must be strictly fulfilled before a second appeal can be maintained and no court has the power to add to or enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts howsoever erroneous cannot be disturbed by the High Court in exercise of the powers under this section. The substantial question of law has to be distinguished from a substantial question of fact.

13. Admittedly, in this case, preliminary decree was not

challenged by the appellants herein, but they intended to

challenge the final decree to work out their equities. The

points raised by the appellants herein were dealt in detail

before the first appellate Court. Therefore, this Court finds no

reason to interfere with the judgment of the first appellate

Court. In view of the above citations, this Court finds that

there are no merits in the second appeal and is liable to be

dismissed.

14. In the result, this Second Appeal is dismissed at the

stage of admission confirming the judgment and decree of the

first appellate Court dated 16.08.2023 passed in A.S.No.287