Karnataka High Court
Hanumantappa Dyamappa Jadar vs Mallavva And Others on 13 December, 1995
Equivalent citations: AIR1996KANT183, ILR1996KAR963, 1996(1)KARLJ388, AIR 1996 KARNATAKA 183, (1996) ILR (KANT) 963, (1996) 1 KANT LJ 388, (1996) 2 ICC 375
ORDER
1. The petitioner, who is the second defendant in O.S, No. 369/1973, has filed this application under O. 20, R. 18, C.P.C. for declaration of his one-seventh share in the suit schedule property and in pursuance of such a declaration for a direction to divide the properties by metes and bounds and the petitioner be put in his separate exclusive possession of the suit schedule property which will be allotted to his share. O.S. No. 369/73 was a suit for partition. It was decreed that all the parties to the suit would be entitled to onc-nineth share of the suit schedule property. It is common ground that there was no final decree and the decree in O.S. No. 369/73 was only a preliminary decree. Before passing the final decree it is not disputed that the plaintiff and fourth defendant died (namely Mallavva-plaintiff, Yashvant Dyamappa Jadar-fourth defendant).
2. It is brought to my notice that petitioner's share on the death of plaintiff and fourth defendant has enlarged from one-nineth to one-seventh share of the suit schedule property. It is in these circumstances and on account of the subsequent events after the preliminary decree that the petitioner was obliged to file this application, requiring the Court to draw a preliminary decree enlarging the shares of parties from one-nineth to one-seventh share.
3. The application filed by the petitioner was numbered as Misc. Application No. 267/84. The learned Judge, First Addl. Munsiff, Hubli, raised two points for consideration :
1. Whether the applicant proves that on account of death of respondents Nos. 1 and 4 the share of the applicant has enlarged and the applicant is entitled to the declaration of his one-seventh share in the suit schedule properties?
2. Whether this miscellaneous application is maintainable in the present form?
4. With regard to the first point, the learned Munsiff came to the conclusion that the applicant has proved on account of the death of the plaintiff and fourth defendant, the share of the petitioner was enlarged from one-nineth to one-seventh share in the suit schedule property. Accordingly, he held the first point in favour of the petitioner.
5. However, he held that the present miscellaneous application was not a continuation of the suit and took the view that he had no power to re-declare the share of the parties in the preliminary decree. It is not the case of the petitioner that final decree was passed. If there was a finding that the final decree was passed, learned counsel for the petitioner fairly submitted that only an appeal is maintainable. His contention is that the matter is still at the stage of preliminary decree and these subsequent events namely the death of the plaintiff and fourth defendant which took place before passing of the final decree gives the petitioner the right to move the Court for enlarging his share on account of the subsequent events after the passing of preliminary decree. He also submits that even to this day, no final decree has been passed.
6. Mr. Thipperudrappa, learned counsel for the petitioner submitted that there is always scope for the preliminary decree to be changed in the light of the changed circumstances and there is no bar for the Court to. make such amendment for the purpose of executing the final decree.
7. Learned counsel for the petitioner took me through the provisions of O.20, R. 18, C.P.C. which reads as follows :
"18. Decree in suit for partition of property or separate possession of a share therein.--Where the Court passes a decree for the partition of property or for the separate possession of a share therein, then--.
(1) If and in so far as the decree relates to an estate assessed to the payment of revenue to the Government, the decree shall declare the rights of the several parties interested in the property, but shall direct such partition or separation to be made by the Collector or any Gazetted Subordinate of the Collector deputed by him in this behalf, in accordance with such declaration and with the provisions of S. 54.
(2) If and in so far as such decree relates to any other immoveable property or to move-able property, the Court may, if the partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree declaring the rights of the several parties interested in the property and giving such further directions as may be required."
Learned counsel also relied on a judgment reported in Shivaramaiah v. Mallikarjunaiah . This Court while examining the scope of O. 20, R. 18, C.P.C. has held as follows :
"Though the decree passed under O. 20, R. 18(1) is not described as a preliminary decree, whereas the decree passed under O. 20, R. 18(2) is a preliminary decree, so far as the essential character of the two decrees is concerned, there is no real difference. The decrees falling under both the clauses of O. 20, R. 18 merely decfare the rights of the parties in the two types of properties. The decrees passed under both the clauses contemplate partition or separation to be made to enable the parties to realise the fruits of the decree. This is done by passing a final decree if the decree for partition is made under O. 20, R. 18(2) in respect of properties other than those in respect of which revenue is payable to the Govt. The same object is achieved in respect of the partition decree made under O. 20, R. 18(1), by sending the said decree to the Deputy Commissioner for effecting partition in respect of the estate assessed to payment of the land revenue to the Government. There is no bar for making more than one preliminary decree under O. 20, R. 18(2) of the CPC. No such bar for passing more than one decree is found under O. 20, R. 18(1) of the CPC either."
8. The Supreme Court in Phoolchand v.
Gopal Lal, , while dealing with the O. 20, R. 18(1), CPC held as follows :
"We are of opinion that there is nothing in the CPC, 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 advantegeous to the parties, specially in partition suits, to have disputed rights finally settled and specification of shares in the preliminary decree varies 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 de.cree 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 CPC 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 Civil P. C. 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 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. 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."
9. A similar view has been taken in Nanja Naicken v. Rangammal, , where the Court has held as follows :
"In a partition suit, Court can grant more than one preliminary decree because such a suit must be deemed to be pending till a final decree is actually granted. Therefore, where after a preliminary decree was passed, the plaintiff himself applied for impleading A as a party and admitted that he had a share in the suit property but there being a dispute as to the exact quantum of A's share the plaintiff opposed A's application for rectification of the preliminary decree by specifying his share in the decree, the Court was not justified in dismissing A's application."
10. Mr. Thipperudrappa, learned Counsel also drew my attention to another judgment of this Court in Shadlingappa Basawantappa Shipari and Neelappa Basawantappa Hadapad v. Padmabai, ILR 1987 Kant 336, where this Court has held as folllows:
"There is no fetter imposed on the Civil Court to amend, alter or modify a preliminary decree at any stage including the act of recording a compromise on the facts of a particular case... The question of becoming functus officio arises only after the Collector has dealt with the matter after reference to him. The matter of dividing by metes and bounds lands assessed to revenue could be done only by the Collector or a subordinate officer authorised by him and not by the process of the Civil Court. It is only in that sense the Court becomes functus officio and not for exercising its judicial authority conferred on it by the provisions of the C.P.C."
11. Relying on various decisions of both of Supreme Court and this Court, the order passed in Misc. Application No. 267/1984 is set aside insofar as point No. 2 is concerned.
12. The learned Munsiff having given a finding that the applicant is entitled to one-seventh share, I do not propose to interfere with such a finding. Accordingly the order passed by the learned Judge in Misc. Application No. 267/1984 in sofar as holding that the prayer made in the petition is not maintainable is set aside. I hold that the petition is maintainable and for the above reasons, Misc. Application No. 267/84 shall stand allowed.
The trial Court is directed to pass a preliminary decree as prayed for in Misc. Application No. 267/1984 in accordance with Jaw as expeditiously as possible. The petitioner is directed to be present in the trial Court on 16th of January, 1996. The valuable assistance rendered by Sri Thipperudrappa, learned Counsel for the petitioner, is placed on record.
The Civil Revision Petition is allowed. There will be no order as to costs.
13. Petition allowed.