Andhra HC (Pre-Telangana)
Aitha Dubba Rajam Alias Raju S/O ... vs Aitha Pochaiah, S/O Aitha Dubbarajam ... on 5 January, 2007
Equivalent citations: AIR2007AP133, 2007(2)ALD557, 2007(2)ALT464, AIR 2007 ANDHRA PRADESH 133, 2007 (3) ALL LJ NOC 490, 2007 A I H C (NOC) 320 (AP), (2007) 53 ALLINDCAS 641 (AP), 2007 (53) ALLINDCAS 641, (2007) 2 ANDHLD 557, (2007) 2 ANDH LT 464
ORDER G. Yethirajulu, J.
1. This Revision Petition is filed by the plaintiff in O.S. No. 29 of 2002 on the file of the Senior Civil Judge, Siddipet. The respondents are the defendants in the said suit. The suit was filed for partition of the suit schedule lands into four equal shares and to allot one such share to the plaintiff.
2. A preliminary decree was passed on 30-08-2003 declaring that the petitioner is entitled to 1/4th share and a Commissioner was appointed in the final decree petition and the Commissioner divided the properties into four equal shares and the petitioner has to be allotted one such share. The defendants 1 to 11 remained ex parte and respondent No. 12 was impleaded by order in I.A. No. 239 of 2005. She filed a counter in the final decree petition stating that part of the suit property was purchased by her under a sale deed of the year 1995 and she was also inducted into possession thereof and she is in possession and enjoyment of the property. The plaintiff behind her back obtained an ex parte decree against the other respondents including her property also for partition. The plaintiff filed I.A. No. 280 of 2003 for passing a final decree and in pursuance of that, the lands were divided by allotting shares to the respective sharers as per the preliminary decree and the lower Court passed a final order. In the order, the lower Court observed that the suit was filed in the year 2002 by the petitioner against respondents 1 to 9 for partition and separate possession of the suit schedule lands and the petitioner herein is not a party to the suit.
3. The 12th respondent contended that she is the owner and possessor of the land to an extent of Ac.2-24 guntas in all forming part of Sy. Nos. 2179 and 2183 in respect of 0-03 guntas, 0-07 guntas, 0-03 guntas, 0-29 guntas and Ac.1-02 guntas in Sy. Nos. 2183 to 2187 respectively which was owned by her under a registered sale deed which was included in the plaint schedule without impleading her as one of the defendants in the suit. The lower court observed that no property of a third party can be involved in any suit for partition without notice to such party depriving the right of such party to put forth her claim in respect of the property. Despite the fact that respondent No. 12 has purchased the property under a valid registered sale deed previously, she was not made a party to the suit. One Byri Raja Mallu was the pattedar of the property purchased by the 12th respondent and he is competent for alienation of the property in respect of the 12th respondent. Suspecting the said fact, the decree was obtained behind the back for all the schedule properties including the property purchased by the 12th respondent. The husband of the 12th respondent who was 9th defendant in the suit also remained ex parte, therefore, it cannot be said that the 12th respondent is aware of the proceedings. The rights of the 12th respondent over the property cannot be affected in any manner. The properties owned and possessed by the 12th respondent cannot be made part of such division for passing any final decree. The only remedy left to the petitioner is to seek fresh division of the property under the decree for partition excluding the lands of the 12th respondent. The 12th respondent came on record to explain her rights to avoid multiplicity of litigation. The petitioner also could not make out a case that the properties mentioned by the 12th respondent are also liable for partition. The lower Court, accordingly, dismissed the final decree petition by observing that without prejudice to the rights of the petitioner for claiming the final decree by appointing a Commissioner for division of the suit property after excluding the property of the 12th respondent in terms of the preliminary decree. Being aggrieved by the dismissal of the final decree petition covered by I.A. No. 280 of 2003, the plaintiff-petitioner filed the present Revision contending that in the preliminary decree in a partition suit, where the rights of the parties are decided finally, they can be set aside only in the appropriate first appeal.
4. None of the parties to the suit preferred any Appeal challenging the rights of the 4 sharers for such preliminary decree. Respondents 10 to 12 were the parties added in the final decree proceedings when they contended that they purchased certain portion of the lands covered by the suit survey numbers and they are entitled to be impleaded in the partition suit. When any third party makes a claim in a final decree proceedings, he must make it only through shareholder from whom he derived interest and to work out the equities of the purchasers to the extent of claim made by the third parties. The rights of such persons cannot be adjudicated for the simple reason that the rights of their vendor are not subject matter of the suit and their rights cannot be worked out in a suit, who is not party to it. The rights of the third parties cannot be adjudicated in a final decree proceedings and the remedy can be had by filing a separate suit to work out their rights.
5. So, the substance of the contentions of the revision petitioner is that the 12th respondent in the final decree petition cannot agitate that her property was included in the partition suit. Such final decree proceedings are only to work out the rights in terms of the preliminary decree. The third party claims cannot be considered in the final decree proceedings and that the only remedy available to a third party is to file an Appeal before the appropriate Court and not to make an application in the final decree.
6. It is the specific contention of the 12th respondent that she purchased the properties from one Byri Raja Mallu, the pattedar of the lands covered by the sale deed and who was competent to alienate the suit properties. The said Byri Raja Mallu has no relationship with the parties to the suit and the plaintiffs and the defendants have no right over any of the properties purchased by the 12th respondent from Byri Raja Mallu. If the 12th respondent is the purchaser of the properties from any one of the sharers, who were parties to the suit, the question of working out the equities would arise. But when a third party was included without any manner of right to any of the sharers in the suit property, it has to be examined whether such property can be divided between the parties to the suit, who have no manner of right over the third party properties.
7. The learned Counsel for the appellant submitted the following Judgments:
In Venkata Reddy v. Pethi Reddy , the Supreme Court held that:
A preliminary decree passed, whether it is in a mortgage suit or a partition suit, is not a tentative decree but must, in so far as the matters dealt with by it are concerned, be regarded as conclusive. The decree which would be executable would be the final decree. But the finality of a decree or a decision does not necessarily depend upon its being executable. A decision is said to be final when so far as the court rendering it is concerned, it is unalterable except by resort to such provisions of the Code of Civil Procedure as permit its reversal, modification or amendment. Section 97 of C.P.C provides that where a party aggrieved by a preliminary decree does not appeal from it, he is precluded from disputing its correctness in any appeal which may be preferred from the final decree. This provision thus clearly indicates that as to the matters covered by it, a preliminary decree is regarded as embodying the final decision of the Court passing that decree.
The above ruling indicates that so far as the aggrieved party to the suit is concerned, the preliminary decree is a final decision of that Court and is not applicable to third party.
In Venkataramayya v. Venkataramappa , a Division Bench of the Madras High Court held that:
The final decree proceedings under O.20 Rr. 12 and 18 only relate to matters which are provided in the preliminary decree as to partition, as to an account for mesne profits or as to an account for other properties, but do not relate to the decision of any substantial rights of parties as to title to properties which can only be decided in a regular suit.
In Rukya Bee and Anr. v. Syed Afzal and Ors. , a learned single Judge of this Court held that:
If any third party is aggrieved by the preliminary decree is any manner, the only course open to him is to file an independent suit and to put forth his contentions. If he feels that the petitioners ought not to have been allotted any share in a partition suit in view of the purchase made by him, his remedy is only by way of filing a separate suit and canvass his rights.
In K. Adivi Naidu and Ors. v. E. Duruvasulu Naidu and Ors. , the Supreme Court held that:
To reap the benefits of the preliminary decree insofar as the share of his vendors is concerned, it is necessary that he is impleaded as one of the parties. However, it needs to be clarified that the first respondent cannot be permitted to canvass the correctness of the preliminary decree in these proceedings, particularly as regards the share of the petitioners herein.
The Supreme Court further held that:
Since the specific properties were purchased prior to the institution of the suit for partition, though the appellants have no right to equities, it could be said that the respective share to which their principal alienor was entitled would be allottable to them as a special case. However, since the preliminary decree specifically directed that the good and bad qualities of the land should be taken into consideration in effecting the partition, it should, in letter and spirit, be given effect to. While passing final decree, if the lands purchased by the appellants are found more valuable than the lands to be allotted to the respondents, the respective values thereof should be ascertained and the respondents need to be compensated in monetary value. That would be the effect of the preliminary decree as well.
In M. Ayyanna v. M. Jaggarao , a learned single Judge of this Court held that the final decree cannot amend or go behind the preliminary decree on a matter determined by the preliminary decree.
In Pothuri Thulasi Das v. Potru Nageswara Rao , this Court held that:
In the proceedings before the execution Court, it is not open to the Judgment Debtor to plead any fact or bring any new facts in the execution court contrary to the decree.
8. The learned Counsel for the respondents cited the following Judgments:
In IDPL Employees Co-Op. Housing Building Society Ltde. v. B. Rama Devi , this Court held that:
In a suit for partition, delivery of possession of properties through the medium of Court would arise only to the limited extent of making one party in possession of the property, to pass on the same to the other party, whom it was allotted. The question of recovery of possession of the properties from the persons who are not parties to the suit is undoubtedly beyond the scope of a partition suit. The recovery of possession is impermissible even from a party to the suit, unless he is himself a sharer or claims through any sharers and there is no scope for inclusion of the relief of recovery of immovable property from the third parties.
It was further held that:
It is no part of the duty of the Court to clear encumbrance or recover possession of such properties, for the benefit of the decree holders or their assignees. The disputes in relation to the partitioned properties vis--vis third parties, have to be worked out separately, by the Joint owners collectively or the respective sharers individually.
In N.S.S. Narayana Sarma v. Goldstone Exports (P) Ltd. , when the appellants who are the purchasers of the property learnt about the execution petition filed by the respondents for delivery of possession, some of the appellants filed petitions under Order 21 Rule 97 read with Rule 101 CPC challenging the execution. Their petitions were dismissed by the District Judge, and the Appeal was also dismissed. They filed an SLP before the Supreme Court which directed that they should again approach the executing Court, which was directed in turn to decide whether the petitions were maintainable under Order 21 Rule 99 CPC. Again the applications filed by them were dismissed by the Division Bench of the High Court as not maintainable.
Allowing the Appeals, the Supreme Court held as follows:
Provision is made in the Civil Procedure Code for delivery of possession of immovable property in execution of a decree and matters relating thereto. In Order 21 Rule 35 provisions are made empowering the executing court to deliver possession of the property to the decree-holder if necessary, by removing any person bound by the decree who refuses to vacate the property. In Rule 36 provision is made for delivery of formal or symbolical possession of the property in occupancy of a tenant or other person entitled to occupy the same and not bound by the decree to relinquish such occupancy. Rules 97 to 101 of Order 21 contain the provisions enabling the executing court to deal with a situation when a decree-holder entitled to possession of the property encounters obstruction from any person. From the provisions in these Rules which have been quoted earlier the scheme is clear that the legislature has vested wide powers in the executing court to deal with all issues relating to such matters. It is a general impression prevailing amongst the litigant public that difficulties of a litigant are by no means over on his getting a decree for immovable property in his favour. Indeed, his difficulties in real and practical sense, arise after getting the decree. Presumably, to tackle such a situation and to allay the apprehension in the minds of litigant public that it takes years and years for the decree- holder to enjoy fruits of the decree, the legislature made drastic amendments in provisions in the aforementioned Rules, particularly, the provision in Rule 101 in which it is categorically declared that all questions including questions relating to right, title or interest in the property arising between the parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives, and relevant to the adjudication of the application shall be determined by the court dealing with the application and not by a separate suit and for this purpose, the court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions.
9. The decisions as referred above indicate as to what are the powers of a Court during the final decree proceedings whether the order of the final decree is in terms of the preliminary decree or it can go beyond preliminary decree and make an enquiry respect of the third parties etc. The decisions are very clear that in order to adjudicate the third party claim, the third party must move the Court during the pendency of the suit for preliminary decree or cause obstruction for delivery of the property and file an Application under Order 21 Rule 97 regarding the declaration of title or file a separate suit for declaration that the decree in the partition suit is not binding on him and his property is excludable from the plaint schedule property.
10. The 12th Respondent filed an Application before the lower Court to adjudicate the matter by contending that his property was included as one of the items of the plaint schedule property and that the parties to the suit have nothing to do with the said property and it is his exclusive property, therefore, it has to be excluded from the schedule. Though he filed the said application during the pendency of the trial, the trail Court dismissed the said application on the ground that he can agitate about his rights during the final decree proceedings. In the final decree proceedings, the Court directed exclusion of the property of the 12th respondent after due enquiry. The legality of the said order is being questioned by the plaintiff in Revision Petition.
11. The learned Counsel for the petitioner-plaintiff submitted that in the light of the decisions as mentioned above, the rights of a third parties cannot be worked out in the final decree proceedings. Though the 12th respondent approached the lower Court well in advance during the pendency of the preliminary decree proceedings, the lower Court committed a mistake in dismissing the application by observing that it will be considered during the final decree proceedings. When the Court passed an order in the final decree proceedings excluding the item of 12th respondent, the Court committed a grave irregularity in procedure and violated the established principles of law in this regard.
12. After going through the legal position, it is clear that the 12th respondent has no remedy during the final decree proceedings and the property shall not be excluded from the plaint schedule during the final decree proceedings. But he can avail any of the following remedies to protect his title and possession. In the event of setting aside the order of the lower court and if the ex parte decree is directed to be set aside, the petitioner shall be given an opportunity to establish that one of the suit properties is his exclusive property and it is liable to be excluded. If the ex parte decree is not set aside, the second remedy i.e., available to the 12th respondent is causing obstruction of delivery of the property in the execution proceedings and also to file a claim petition by contending that he is the owner and possessor of the property making the court to adjudicate the rights of the 12th respondent and to pass appropriate orders. The third remedy to 12th respondent is to file a suit for declaration that he is the owner of the property and for injunction to prevent the parties from taking possession of that property.
13. In the result, the Revision Petition is allowed by setting aside the order of the lower Court, dated 13-02-2006 subject to the directions as indicated above. No costs.