Telangana High Court
M.Srinivas Goud vs P.Shamantha , Laxamma on 12 June, 2023
Author: P.Naveen Rao
Bench: P Naveen Rao, Nagesh Bheemapaka
1
THE HON'BLE SRI JUSTICE P. NAVEEN RAO
AND
THE HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
CRP 2317 and 2318 of 2022
JUDGMENT:(Per Hon'ble Sri Justice P.Naveen Rao) Heard learned counsel for petitioner Sri C.Kumar, learned senior counsel Sri Mereddy Indrasena Reddy for respondents 22 to 26 in CRP 2318 of 2022 and respondents 21 to 25 in CRP 2317 of 2022; learned counsel Sri S Balchand for respondents 13 to 17 in CRP 2318 of 2022 and respondents 10 to 14 in CRP 2317 of 2022; and Sri Padala Pravin Kumar for respondents 3 to 8 in CRP 2318 and 2317 of 2022 respectively.
2. The present Revision Petitions have been directed against a common order passed in I.A. 1097 and 1127 of 2022 arising out of O.S. 485 of 2015. The O.S. 485 of 2015 is a suit for partition and separate possession filed by one Shamanta @ Lakshmamma before the XI Additional District and Sessions Judge at L.B. Nagar, Ranga Reddy District. In the said suit, I.A. 1097 of 2022 was filed by Modepu Srinivas Goud (Defendant No.10 in the suit) under Order XXIII Rule 1 - A r/w Section 151 of CPC to transpose himself as Plaintiff No.2 in the suit. I.A. 1127 of 2022 was filed by the plaintiff under XXIII Rule 3 r/w Section 2 151 of C.P.C to permit the plaintiff to enter into a compromise with respondent/defendant Nos. 1 to 9 & 11 to 25, to record the same and pass a decree accordingly. The lower court allowed I.A. No. 1127 of 2022, i.e. allowed the parties to enter into a compromise and passed a decree in terms of the settlement filed under Order XXIII Rule 3 of CPC and dismissed I.A. 1097 of 2022 holding the same as devoid of force and merit. The present revisions have been filed challenging the above orders.
3. For the sake of convenience herein after the parties are referred to as arrayed in the suit.
4. Briefly noted, the facts are as under:
4.1. The plaintiff (Shamantha) is the daughter of one Late Modepu Chandraiah, who was the son of Modepu Rangaiah. Modepu Chandraiah expired on 28.11.1982. He had two wives, Smt.Chandramma and Smt. Laksmamma. Smt.Chandramma, gave birth to four children namely, Bikshapthy, Andalu (Defendant No.1), Gopamma (Defendant No.2) and Shamantha (plaintiff). Bikshapthay expired in the year 2009 leaving four children (Defendants Nos. 3 -7). Lakshmamma (Defendant No.8) gave birth to four children namely, Kishan, Satyanarayana (Defendant No.9), Modepu Srinivas (Defendant No.10), Varamma 3 (Defendant No.11). Kishan expired leaving four children (Defendants Nos.
12-16).
4.2. According to the plaintiff Modepu Chandraiah owned agricultural lands admeasuring a total of Ac 33.30 guntas spread over Sy. Nos. 253, 256, 258, 260 situated at Pasumamula Village, Hayath Nagar Mandal, Ranga Reddy District in various bits and extents. The instant suit is filed to grant a decree of partition and separate possession of the suit lands.
5. The prayers sought in the suit were opposed by the defendants contending that the partition has already taken place on 06.12.1981 during the lifetime of Modepu Chandraiah, and hence the suit is not maintainable and ought to be dismissed in limine. It is further contended that the suit is liable to be dismissed for non-joinder of proper and necessary parties. According to the defendants, Modepu Yadaiah is the brother of Modepu Chandraiah, and he owned Ac.5.00 guntas of the schedule suit properties out of the Ac.33.30 guntas, and the remaining Ac.28.00 guntas were owned by Modepu Chandraiah. Modepu Yadaiha died leaving four children. They were later impleaded in the suit as defendants 21 to 25.
4C.R.P 2318 of 2022:
6. This I.A. No. 1127 of 2022 was filed under Order XXIII Rule 3 r/w section 151 of C.P.C to permit the plaintiff and the defendant Nos.1 to 9 & 11 to 25 (Other defendants) to record a compromise between the parties and to decree the suit accordingly between the compromising parties. It is the case of the plaintiff that she filed the suit for partition against the defendants, but the plaintiff and the defendant Nos. 1 to 9 & 11 to 25 had amicably resolved the dispute out of court and have recorded the terms and conditions for the compromise which has been filed with the petition.
7. The defendant No.10, opposing the above petition contended that, land that is shown as defendant No. 10's share is falling under proposed 100 feet road in the Master Plan. That during the lifetime of their father, Modepu Chandraiah had partitioned the said suit lands, which took place when defendant 10 was only two years of age. It is contended that defendant No.10 has already filed an application under Order XXIII Rule 1- A of CPC, and while the same is pending, compromise cannot be recorded by the parties. That in a suit for partition, all the parties shall have an equal right over the suit lands, thus without the knowledge and consent of defendant No.10, the plaintiff and other defendants cannot 5 unilaterally enter into a compromise. The land shown in the map indicating the share of sons of ModepuYadaiha (defendants 21 to 25) is not correct as they were already alienated, and the said purchaser was not made party to the suit.
C.R.P 2317 of 2022:
8. During the pendency of the above suit, the defendant No.10, filed I.A. 1097of 2021 under Order XXIII Rule 1-A r/w Section 151 of the Civil Procedure Code seeking leave to transpose as plaintiff No.2. According to Defendant No.10, the plaintiff and the defendant Nos. 1 to 9 & 11 to 25, hereinafter referred to as other defendants have attempted to record a compromise with respect to the suit schedule lands in O.S. 458 of 2015, before the District Legal Services Authority, in PLC. Nos. 175/2022, 176/2022, 177/2022, 178/2022 and 179 of 2022, without showing defendant No.10 as party to the compromise proceedings. On 29.08.2022, Defendant 10 filed objections to the said PLCs and the PLCs were adjourned to 08.09.2022. According to the Defendant No.10, unilaterally and without his consent, a particular piece of land is allotted to him as part of a settlement arrived behind his back, which is falling in line with a proposed 100 feet road in the master plan. Thus, it would leave him with no land. He would contend that since the other 6 defendants have wrongfully allotted the defendant No.10's share of the land, it is necessary for him to transpose as plaintiff 2, and contest the suit accordingly, otherwise, he would suffer irreparable loss and hardship.
9. This is opposed by the other defendants. They urge that the defendant 10 has filed the application with an ulterior motive and to cause wrongful loss to them. According to them, during the lifetime of Late Modepu Chandraiah, the suit properties were already partitioned equally among all his legal heirs in the year 1981 itself, and each share was clearly earmarked by metes and bounds. It is contended, that following the partition, the names of the family members were entered in the revenue records and were issued pattadar passbook and title deeds.
It is contended that the defendant No.10 even though being a minor at the time of partition, was allotted his share which was precise and equal in nature. In fact, the same has been pleaded by the defendant No.10, when defendant 8 to 16 agreed to adopt the same written statement as defendant 3 to 7 in the main suit.
10. With respect to the transposition, it is contended that once the schedule suit property gets apportioned by way of settlement, there remains only defendant No. 10 against whom the plaintiff intends to 7 prosecute the suit, and in such a scenario if the defendant No.10 gets transposed as plaintiff No.2, there will be no opposite party to contest the suit and hence is not maintainable.
11. The trial court heard both the parties and passed a common order in I.A.s 1097 and 1127 of 2022.
12. The trial Court framed following questions:
(i) Whether plaintiff and defendant Nos.1 to 9 & 11 to 25 can be allowed to compromise/settle, in terms filed here with, can the suit be decreed accordingly between them recording the compromise?
(ii)Whether petitioner/defendant No.10 in I.A. No. 1097/2022 be transpose as plaintiff No.2 to suit in the circumstances pleaded by him?
13. The court observed that suit properties were partitioned amongst the family members by Modepu Chandraiah in the year 1981, and since 1984, the legal heirs started mutating their names in the revenue records pursuant to the partition. The court noted that Defendant 10 also has mutated his name in the revenue records in the year 1995 and the same has not been denied by him.
14. The court observed that it is the specific claim of the plaintiff that she wants to prosecute the suit only against the defendant No. 10, and 8 pursuant to the amicable settlement out of court with the other defendants, she intended not to prosecute the suit against them. Defendant No.10 is the only defendant out of the 25 defendants who is opposing the present compromise. Therefore, once the compromise between plaintiff and the other defendants has been reached, plaintiff being the "domintuslitus", her adverse claim would only lie against defendant No.10. Hence, if the transposition of defendant No.10 is allowed, it would be a scenario where the plaintiffs would have no one to agitate against, as there will be no defendants post the compromise. The court also reiterated the settled position of law that an unwilling plaintiff cannot be compelled to fight alongside another plaintiff, who in fact claims an adverse interest from the original plaintiff.
15. The court after referring to the Apex Court judgement in R.Dhanasundari @ R.Rajeshwari v. A.N. Umakanth and others1 noted that while adjudicating an application for transposition, the court has to examine if there was a substantial question remaining to be agitated or gone into between the parties, once the transposition is allowed. The court applying this ratio to the present facts and circumstances held if defendant No.10 is transposed, in view of the compromise there would be 1 2019 (2) ALT 241 (SC) 9 no one to litigate against. Moreover, as defendant No.10 disputes the share of the plaintiff, it is necessary to array him as the defendant. The court finally observed, "Since all other parties are willing for a valid and legal compromise, so against their will cannot be made to fight a battle which they do not want to occur". Hence, the lower court allowed the petition (I.A. No. 1127 of 2022) permitting the plaintiff and the other defendants to record resolution of the interse dispute and accordingly passed the decree. Consequently, dismissed I.A. 1097 of 2022 filed by the defendant 10 for transposition as plaintiff No. 2 in the main suit."
C.R.P. No. 2318 OF 2022
16. Learned Counsel for Petitioner Sri C Kumar contended that a compromise recorded for partition of joint family properties excluding one of the coparceners is ex facie illegal, unenforceable and invalid under the law. The plaintiff and all other defendants except the petitioner entered into compromise and apportioned shares and extent of land allotting a particular piece of land to petitioner without his consent. As a coparcener of a joint family, a right is vested in him to get his share of ancestral properties and is entitled to enforce such right as per his will and convenience. No portion of ancestral property can be thrusted on him without his consent.
17. He would further submit that the preliminary decree passed by trial Court in I A No. 1127 of 2022 is ex-facie illegal and in excess of 10 jurisdiction. I A No. 1127 of 2022 was filed to record compromise. In such an application, after recording compromise, the trial Court grossly erred in passing the preliminary decree.
18. He would submit that as decree is passed in IA No. 1127 of 2022 it is not a decree as defined in Section 2 (2) of CPC and the remedy of appeal is not available and therefore the revision is maintainable.
19. He would submit that as it is a compromise decree as per Section 96 (3) of CPC no remedy of appeal is maintainable.
20. Learned counsel relied on following decisions:
Trinity Infraventures Ltd Vs State of Telangana2; Prudential Cooperative Bank Ltd Vs A.P. Cooperative Tribunal, Hyderabad3; Smt Ganga Bai Vs Vijay Kumar and others4; Surya Dev Rai Vs Ram Chander Rai and others5; Prasanta Kumar Sahoo Vs Charulata Sahu6.
21. Ad-idem all the learned counsel appearing for respondents contended that against preliminary decree revision is not maintainable and petitioner has to avail remedy of appeal. Whether in I A No. 1127 of 2022 or independently once a preliminary decree is passed an aggrieved 2 2018 (6) ALD 160 (DB) 3 2015 (4) ALD 270 (DB) 4 (1974) 2 SCC 393 5 (2003) 6 SCC 675 6 2023 SCC OnLine SC 360 11 person has to avail remedy of appeal only. It is further contended that the decree is in persona and petitioner is not a party to the said decree. Therefore, this revision is not maintainable on that ground.
22. In reply learned counsel for petitioner drawn the attention of this Court to Order 43 Rule 1-A to contend that petitioner does not have remedy of appeal as he was not a party to the decree. CRP 2317 of 2022
23. Learned counsel for petitioner contends that as plaintiff and all other defendants entered into compromise behind his back and the compromise is accepted by the trial Court, petitioner intends to contest the suit by transposing himself as plaintiff and to contest the suit. He would submit that the trial Court grossly erred in not permitting the petitioner to transpose as plaintiff. By the order of trial Court the petitioner is deprived of his valuable right to secure fair share in the ancestral property.
24. Ad-Idem learned counsel for respondents contended that after plaintiff entered into compromise with other defendants the preliminary decree is passed recording the terms of compromise and the suit is closed against all defendants except the 10th defendant. If 10th defendant is transposed as second plaintiff there would be not other defendants. 12 As the plaintiff intend to contest the suit against 10th defendant, he can not transpose as a plaintiff.
25. Learned counsel for respondents relied on following decisions:
State of Bihar Vs Radha Krishna Singh and others7; R Dhanasundari (supra); Bhagwan Swaroop Vs Mool Chand8; Dr.P Nalla Thampy Thera Vs B.L. Shanker and others9; Azgar Barid Vs Mazambi10; Khimji Vidhu Vs Premier High School11; Estralla Rubber Vs Dass Estate (P) Ltd12; Maharashtra Academy of Engineering & Educational Research Vs State of Maharashtra13; Quseph Mathai and others Vs M Abdul Khadir14; Essen Deinki Vs Rajiv Kumar; Sadhana Lodh Vs National Insurance Co.Ltd15; State of A.P. Vs P.V.Hanumantha Rao16; Gopu Peddireddi Vs Gopu Tirupathy Reddy17; John Vs. Mammukutty18; Sailendra nath Roy Chowdhury Vs Md. Alim19 and Thakur Prasad Vs Bhagwanda20. 7 (1983) 3 SCC 118 8 (1983) 2 SCC 132 9 1984 (Supp) SCC 631 10 (2022) t SCC 334 11 (1999) 9 SCC 264 12 (2001) 8 SCC 97 13 (2001) 10 SCC 166 14 (2002) 1 SCC 319 15 (2003) 3 SCC 524 16 (2003) 10 SCC 121 17 AIR 1981 AP 362 18 1983 KLT 1115 19 AIR 1983 Calcutta 180 20 AIR 1985 MP 171 13 ISSUES:
1. Whether revision is maintainable against preliminary decree?
2. Whether sole respondent can seek to transpose as 2nd plaintiff?
26. At the outset, we make it clear that though several contentions were urged and relied on several precedent decisions, we are not expressing any opinion on those submissions and are left open to be urged in appropriate proceedings. Therefore, the consideration in these two revisions is confined to prayers of petitioner to transpose as plaintiff no.2 and challenging a preliminary decree in a Revision Petition. ISSUE No.1
27. Section 2 (2) of Civil Procedure Code defines 'Decree21'. It means formal expression of an adjudication conclusively determining the rights of the parties with regard to all or any of the matters in controversy in the suit, either preliminary or final.
28. Section 9622 of Civil Procedure Code provides remedy of appeal. According to Sub Section (1) an appeal shall lie from every decree passed 21 Section 2(2) Decree: It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final; A decree is an official order that is drafted and issued by someone in a position of legal authority, like a judge.
22Section 96. Appeal from original decree.
(1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction the Court authorised to hear appeals from the decisions of such Court. 14 by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of that Court. It is thus seen that Section 96 (1) does not specify in what manner a decree is passed to avail the remedy of appeal. As soon as a decree is made in a suit, remedy of appeal opens up and aggrieved person must avail the said remedy.
29. In the case on hand, having satisfied that compromise was validly entered into between the plaintiff and all defendants except 10th defendant, the trial Court allowed I A No. 1127 of 2022. Having regard to compromise entered into between plaintiff and defendants, other than 10th defendant, as nothing survives in the suit interse those parties, the trial Court decreed the suit in part. Consequently, decree was drafted. Thus, fact remains decree was drafted. This decree is staring at petitioner. Section 96 (1) of CPC is in clear terms. Once a decree is passed, the only remedy available is to file appeal. When aggrieved person has remedy in the form of appeal, Civil Revision Petition is not maintainable. Merely because the trial Court observed in the common order made in I A Nos. 1127 of 2022 and 1097 of 2022 that suit is decreed in part, petitioner cannot take recourse to revisional jurisdiction (2) An appeal may lie from an original decree passed ex-parte. (3) No appeal shall lie from a decree passed by the Court with the consent of parties. (4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognisable by Courts of Small Cause, when the amount or value of the subject-matter of the original suit does not exceed three thousand rupees.
15challenging the order in I A No. 1127 of 2022 without challenging the decree.
30. Therefore, the revision is not maintainable. CRP No. 2318 of 2022 is dismissed. It is open to petitioner to work out remedies available in law. Issue No.1 is answered accordingly.
ISSUE No.2
31. The trial Court observed as under:
"15................So, it is obvious that once the dispute between plaintiff and other defendants gets settled, there remains only plaintiff and defendant no.10. Thus, the only objecting sharer to the settlement cannot step into the shoes of plaintiff as plaintiff no.2.................It is settled principle of law that where defendant seeks transposition as plaintiff, on such transpose he must have a substantial question to be agitated and decided against the other co-defendants. In the case on hand, if defendant no.10 gets allowed to be transposed as plaintiff no.2 as here in above stated, there won't be any other defendant to be fought against. It is also settled proposition of law that a unwilling plaintiff cannot be compelled to fight along with another plaintiff who in fact claims an adverse interest from that of the original plaintiff."
32. We are in agreement with the opinion expressed by the trial Court. Plaintiff filed suit for partition impleading 25 defendants including this petitioner. During the pendency of the suit plaintiff and defendants 1 to 9 and 11 to 25 sorted out their differences and resolved to enter into compromise. 10th defendant/petitioner is not part of the compromise. Accordingly, I A No. 1127 of 2022 was filed under Order XXIII Rule 3 read with Section 151 of CPC to record compromise and to grant decree 16 to the extent of parties to the compromise. I A No. 1127 of 2022 was allowed and decree was passed accordingly. After the decision in I A No. 1127 of 2022 and decree passed thereon only petitioner remained as the sole defendant and plaintiff intend to contest the suit against the 10th defendant. Thus, if he transposes as 2nd plaintiff there will be no defendant, plaintiffs can not contest against each other. Further, it being a partition suit, even though, he is arrayed as defendant, he is also substantially the plaintiff. In the peculiar facts of this case, petitioner cannot be permitted to transpose as plaintiff no.2. Thus, no interference is called for in the decision of trial Court in I A No. 1097 of 2022 in exercise of revisional jurisdiction. Issue No.2 is answered accordingly.
33. Accordingly, both Civil Revision Petitions are dismissed. No costs. Miscellaneous applications, if any pending, shall stand closed.
____________________ P.NAVEEN RAO,J _____________________________ NAGESH BHEEMAPAKA,J Date:12-06-2023 Tvk THE HON'BLE SRI JUSTICE P. NAVEEN RAO AND 17 THE HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA CRP 2317 and 2318 of 2022 Date:12-06-2023