Karnataka High Court
K. Sundar Rao, K. Ananda Rao And K. ... vs K. Ramakrishna Rao S/O K. Gangaya on 21 September, 2007
Equivalent citations: ILR2007KAR4308, AIR 2008 (NOC) 70 (KAR.) = 2007 (6) AIR KAR R 382, 2008 A I H C 442, 2008 (1) AJHAR (NOC) 232 (KAR.) = 2007 (6) AIR KAR R 382, 2007 (6) AIR KAR R 382, (2008) 4 KANT LJ 18, (2008) 1 ICC 812
Author: S. Abdul Nazeer
Bench: S. Abdul Nazeer
ORDER S. Abdul Nazeer, J.
Page 2107
1. This writ petition arises out of an interim order passed on I.A. No. 4 dated 8.8.2007 in FDP No. 5/2001 on the file of the Principal Civil Judge (Jr.Dn.)., Udupi.
2. K. Ramakrishna Rao-respondent herein had filed a suit in O.S.No. 17/1987 on the file of the Principal Munsiff at Karkala against his elder brother Narayana Shervegara and one K. Sheshappayya for partition and separate possession of the suit schedule properties. A preliminary decree was passed in the suit on 7.1.1992. An appeal filed against the said judgment and decree in R.A.No. 29/1992 on the file of the Additional Civil Judge (Sr.Dn.)., Udupi, was also dismissed. Narayana Shervegara died in the meantime. K. Ramakrishna Rao filed FDP No. 5/2001 against the legal representatives of Narayana Shervegara and K. Sheshappayya requesting the court below to pass a final decree for partition and delivery of his 1/3rd share in the plaint 'A' schedule properties in pursuance of the preliminary decree. The respondents in the FDP have filed their objections. The petitioners herein (respondent Nos. 2, 3 & 6 in FDP No. 5/2001) filed an application (I.A.No. 4) before the trial Court requesting the court below to hold an enquiry on their objections filed to the main application before proceeding further and grant them such reliefs as the circumstances of the case may require. The respondent herein has opposed the said application. The court below has rejected the application by the impugned order, which is under challenge in this writ petition.
3. I have heard the learned Counsel for the parties.
4. It is contended by the learned Counsel for the petitioners that the entire plaint 'A' schedule properties are not divisible since some of the items of the said properties are set apart for the viniyogas of the family deities and village deity. Though this aspect of the matter was not the subject matter in the suit, it is a substantial question, which has to be decided before proceeding further. Therefore, an enquiry is necessary. It is contended that court below was not right in rejecting the said application.
5. On the other hand, it is the contention of the learned Counsel for the respondent that the preliminary decree dated 7.1.1992 has been Page 2108 confirmed in R.A.No. 29/1992. The petitioners are estopped from taking such contentions as the same was not raised in the suit. The said contentions are beyond the scope of enquiry in the final decree proceedings. It is further contended that in a final decree proceedings, the Court cannot go behind the preliminary decree on a matter determined by the preliminary decree.
6. Having heard the learned Counsel for the parties, the only question requires to be considered in this writ petition is whether the impugned order requires interference in this writ petition?
7. Material on record discloses that K. Ramakrishna Rao had filed a suit in O.S.No. 17/1987 on the file of the Principal Munsiff at Karkala for partition and separate possession of the suit schedule properties. Narayana Shervegara, the father of the petitioners herein was the first defendant and K. Seshappayya was the second defendant in the suit Father of K. Ramakrishna Rao was one K. Gangaiah K. Gangaiah had three sons, namely, K. Ramakrishna Rao, Narayana Shervegara and Sheshappayya. Admittedly, Sheshappayya had sold his 1/3rd undivided share in the suit schedule properties in favour of second defendant - K. Sheshappaya. On the basis of the pleadings, the trial Court had framed the following issues in the suit:
(1) Whether the plaintiff proves that he is entitled to 1/3rd share in the plaint 'A' schedule property?
(2) Whether the plaintiff proves that he is entitled to mesne profits and if so, at what rate?
(3) Whether the 1st defendant proves that there was oral partition between himself, plaintiff and Sheshappayya in respect of plaint 'A' schedule property and the plaintiff has already taken his share in the same?
(4) Whether the plaintiff proves that the suit is properly valued for the purpose of court fee?
(5) To what relief is the plaintiff entitled?
8. The suit was decreed on 7.1.1992 and the trial Court passed a preliminary decree on the same day. The relevant portion of the preliminary decree is as under:
1. That the suit properties be divided into 3 fair and equal shares with reference to good and had soil and the plaintiff be and are hereby entitled 1/3rd share of suit properties.
2. That the 1st defendant and 2nd defendant be and are hereby entitled 1/3rd share each of suit properties.
3. That the necessary papers be sent to the Deputy Commissioner, D.K., Mangalore, for effecting partition of the suit properties under Section 54 of CPC.
4. It is hereby further ordered and decreed that issue No. 2 viz., (2) Whether the plaintiff proves that he is entitled to mesne profits and if so, at what rate?
Page 2109 be and are hereby reserved for consideration during the final decree proceedings.
9. Plaintiff filed final decree proceedings in FDP No. 5/2001 before the court below requesting the Court to pass a final decree for partition and delivery of his 1/3rd share in plaint 'A' schedule properties in pursuance of the preliminary decree. Objection was filed by the petitioners herein contending that the respondent herein has want only involved few items of the property which are set apart for the benefit or viniyogas of the family deity and village deity. It is further contended that the income derived from those properties set apart for the benefit or viniyogas of family deity and the village deity were being spent for viniyogas or expenditure of the said deities only and none else. The petitioners herein have given the description of the said properties in schedule 'B' of the statement of objections. Such a plea was never raised by the father of the petitioners in the suit and no issue has been framed. Therefore, the question for consideration is whether the petitioners can be permitted to raise this question in the final decree proceedings?
10. Before examining the point arising for decision in this case, it is necessary to bear in mind the relevant statutory provision and the principles relating to the scope of enquiry in the final decree proceedings.
11. Order 20 Rule 18 of the Code of Civil Procedure lays down the procedure for passing a final decree where the Court has passed a preliminary decree for partition of the property or for the separate possession of a share therein.
12. The Apex Court in Venkata Reddy and Ors. v. Pethi Reddy was considering the scope of modification or amendment of a preliminary decree. It has been held thus:
Therefore, if the reason given by the High Court is accepted it would mean that no finality attaches to decree at all. That is not the law. 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 provision of the Code of Civil Procedure as permits reversal, modification or amendment. Similarly, a final decision would mean a decision which would operate as res judicata between the parties if it is not sought to be modified or reversed by preferring an appeal or a revision or a review application as is permitted by the Code. 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. Nodoubt, in suits which contemplate the making of two decrees a preliminary decree and a final decree 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. The legislature in its wisdom has though that suits of certain types should be decided in stages and though the suit in Page 2110 such cases can be regarded as fully and completely decided only after a final decree is made, the decision of the Court arrived at the earlier stage also has a finality attached to it. It would be relevant to refer to Section 97 of the Code of Civil Procedure which 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.
13. In Muthangi Ayyana v. Muthangi Jaggarao and Ors. , the Apex Court has held that a Court cannot go behind the preliminary decree on a matter determined by the preliminary decree. It has been held thus:
5. This appeal, coming up before us from the final decree, raises the question whether the preliminary decree, confines, as the learned Counsel for the appellant-defendant No. 4 submits, accounting to the claims made by and against individual parties mentioned in the preliminary decree. He urges that it cannot be extended to all parties, including the defendant No. 4, if the terms of the preliminary decree are binding. The contention is based on the well recognised proposition that a final decree cannot amend or go behind the preliminary decree on a matter determined by the preliminary decree.
14. In the case of A. Thakurdas and Anr. v. A. Venilal and Ors. AIR 1977 KAR 60, this Court has held that a preliminary decree is declaratory in nature and it is implicit in that decree that further proceedings are required to complete the partition. In a partition suit, it is not essential that only one preliminary decree may follow. There may arise subsequent events which make it obligatory to pass another preliminary decree modifying the terms of the former and thereby setting at rest the various controversies which may be raised between the parties. The purpose of the preliminary decree is that the terms settled by the Court are executed and respective possessions are delivered after deciding equities between the parties.
15. Again, this Court in the case of Smt. Parvathamma v. A. Muniyappa and Ors. AIR 1997 KARNATAKA 370, has held thus:
26. The above provisions were newly introduced for the first time in the present Code to bring into an important change that in a preliminary decree, certain rights are conclusively determined and unless the preliminary decree of a Court is challenged in appeal, the right so determined become final and conclusive and cannot be questioned in the final decree.
Page 2111
16. It is also relevant to take note of two other decisions, which have a bearing on the point in issue. The High Court of Madras in Subramania v. Thangammal has held that where parties after the preliminary decree has been passed arrive at a compromise, the Court can give effect to such a compromise by giving fresh directions in the form of a fresh preliminary decree. The Hon'ble Supreme Court in Anar Kumari v. Jamuna Prasad Singh and Ors. AIR 1977 SC 2027 has held that where some of the parties after passing the preliminary decree give up certain rights in favour of any of the parties, the effect of such giving up should be given while passing the final decree.
17. The legal principles deducible from the aforesaid decisions that in a suit for partition, the shares of the parties are determined at the stage of preliminary decree and actual partition is effected as per the final decree. In a preliminary decree, certain rights are conclusively determined and unless the preliminary decree of the Court is challenged in appeal, the right so determined becomes final and conclusive and cannot be questioned in the final decree. A final decree cannot amend or go behind the preliminary decree on a matter decided by the preliminary decree. A preliminary decree passed in a partition suit is not a tentative decree. It is regarded as conclusive in so far as the matters dealt by it Section 97 of the Code of Civil Procedure clearly indicates that the matters covered by a preliminary decree is regarded as embodying the final decision of the Court passing that decree. However, changes in the circumstances after the preliminary decree has been passed can be taken into account. For example, if the parties arrive at a compromise or where some of the parties give up certain rights in favour of one of the parties after the preliminary decree, the effect of such compromise or giving up should be given while passing the final decree.
18. Now let me consider the decisions relied on by the learned Counsel for the petitioners. In Shankar Balwant Lokhande (Dead) by Lrs. v. Chandrakant Shankar Lokhande and Anr. , the Apex Court has held that until final decree determining the rights of the parties by metes and bounds is drawn up and it is engrossed on the stamp papers supplied by the parties, there is no executable decree so as to attract Article 182. This decision is not applicable to the facts of this case since the question for consideration in the instant case is whether the Court can go behind the preliminary decree? In Rachakonda Venkatrao and Ors. v. R. Satya Bai (Dead) By L.R and Anr. , the Apex Court has held that is a partition suit, the Court is required to define the shares of the parties, identify the joint properties which are to be partitioned, allocate the properties to the parties as per their Page 2112 respective shares and put the parties in possession of the properties allocated to them. In partition matters, it is always open to the parties to enter into fresh arrangement. The parties are free to adopt whatever course of action they may choose in future by way of mutual arrangement. This decision is also not applicable to the facts of this case because parties are not setting the matter between themselves. In Hasham Abbas Sayyad v. Usman Abbas Sayyad and Ors. 2007 AIR SCW 1011, the Apex Court has held that preliminary decree declares the rights and liabilities of the parties. However, in a given case a decree may be both preliminary and final. There can be more than one final decree. A decree may be partly preliminary and partly final. A final decree proceedings may be initiated at any point of time. Without drawing a final decree proceedings, the Court cannot put the property on auction sale. This decision is also not applicable to the facts of the case.
19. Coming to the facts of the present case, it is the case of the petitioners that the entire plaint 'A' schedule properties are not divisible since some of the items of the said properties are set apart for the viniyogas of the family deities and village deity. According to them, properties described in 'B' Schedule of the statement of objections in the F.D.P. are meant for the said purpose. As many as nine items of properties are included in 'B' schedule. The contention regarding setting apart certain properties for the viniyogas was not raised in the written statement filed by the father of the petitioners in the suit. The said contention is not a development subsequent to the date of preliminary decree. The respondent denies that 'B' schedule properties have been set apart for the viniyogas. The preliminary decree has become final. In my view, the petitioners are estopped from taking such a contention at this stage as the same was not raised in the suit. The said contention is beyond the scope of enquiry in the final decree proceedings. The Court cannot go behind the preliminary decree on a matter determined by the preliminary decree.
20. Having given my anxious consideration to the submissions made by the learned Counsel at the bar, I am of the view, that the impugned order does not suffer from any error of jurisdiction or error apparent on the face of the record or gross failure of justice warranting interference under extraordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India. Consequently, the writ petition fails and accordingly, it is dismissed. No costs.