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2001 DIGILAW 1447 (AP)

Maguluri Rama Koti v. Maguluri Seggaiah

2001-11-13

P.S.NARAYANA

body2001
P. S. NARAYANA, J. ( 1 ) HEARD Smt. Malleswari, the learned Counsel representing the revision petitioner and Sri Gopala Krishnamacharyulu, the learned Counsel representing the respondent. ( 2 ) THE revision petitioner is the petitioner-second defendant in IA No. 164/ 97 in OS No. 56/63 on the file of Senior Civil Judge, Addanki. The revision petitioner as petitioner had filed 1a No. 164/97 in OS No. 56/63 on the file of Senior Civil Judge, Addanki, under Order XX, Rule 18 of the Code of Civil Procedure praying for the passing of additional supplementary preliminary decree for partition in view of the changed circumstances and also the passing of final decree. The case of the revision petitioner is that he is the eldest son to his father, the first defendant in the suit through the first wife; and the respondent in the CRP.- the plaintiff in the suit, is the son through the second wife. In the said suit, a preliminary decree was passed for partition of the plaintiff schedule properties into three equal shares and however, subsequent thereto, there was partition of the property by mediation. The revision petitioner, in the light of the fact that his father died subsequent thereto on 12. 7. 1993, on the ground of changed circumstances, had filed the aforesaid application for passing of supplementary preliminary decree and consequential final decree. The respondent-plaintiff had taken a stand that there was partition of joint family properties in the presence of mediators even in the year 1971, and the respective parties have been in exclusive possession of their respective shares and pattedar pass books have also been issued and on 23. 6. 1984, first defendant, father of the parties, had executed a registered Will bequeathing of his properties in favour of respondent-plaintiff, his wife and son. It was also further stated that the petitioner had filed a similar application for the selfsame relief and the same was rejected and hence, the petition itself is not maintainable. ( 3 ) ON the respective contentions of the parties, four points for determination were framed and PW1 was examined and Exs. A1 to A4 were marked, and RWs. l to 5 were examined and Exs. Bl to B25 were marked. ( 3 ) ON the respective contentions of the parties, four points for determination were framed and PW1 was examined and Exs. A1 to A4 were marked, and RWs. l to 5 were examined and Exs. Bl to B25 were marked. The Court below in paragraph Nos,8 to 12 had discussed the points for consideration and had ultimately negatived the relief sought and aggrieved by the same, the present CRP is filed. ( 4 ) NO doubt, the Counsel, on record, had taken me through the several factual details involved in the matter. But, at the threshold, on the question of maintainability of the revision, as against such an order, which is considered to be a decree, Smt. Malleswari had drawn my attention to the decision of the Supreme Court in Phoolchand and another v. Gopal Lal, AIR 1967 SC 1470 (DB) and also the decision of a learned single Judge of Patna High Court in Rajeshwar Singh v. Rajendra singh ami others, AIR 1992 Pat 125 . No doubt, in the present matter, IA No. 164/97 in OS No. 56/63 on the file of the senior Civil Judge, Addanki was filed for the purpose of passing additional supplementary preliminary decree and also consequential final decree. Though, an application was filed and order made on such application, such decretal order will be a decree within the meaning of Section 2 of the Code of Civil Procedure. In Phoolchand and another v. Gopal Lal (supra) while dealing with the provisions of Sections 2 (2), 96 and also Order XX, Rule 18 of the Code of Civil Procedure, it was held by the Apex Court that variation of shares in a preliminary partition decree by itself is a decree. In Rajeshwar Singh v. Rajendra Singh and others, (supra) it was held that determination of dispute between parties as to who will be entitled to the share after the death of one of the defendants will amount to a preliminary decree and hence, it is appealable and as against such an order, revision is not maintainable. In the light of the settled legal position, I am of the clear opinion that the revision petition filed by the petitioner is not maintainable and the remedy is a misconceived one. In the light of the settled legal position, I am of the clear opinion that the revision petition filed by the petitioner is not maintainable and the remedy is a misconceived one. But, however, it is brought to my notice that detailed findings had been recorded and the dispute is between the brothers i. e. , the sons of the first wife and the second wife of the deceased father and the properties involved in the dispute also appeared to be substantial and hence, in the interest of justice, I am inclined to permit the revision petitioner to convert the revision petition into a first appeal after complying all the other necessary formalities relating to the requisite Court-fee etc. The revision petitioner is at liberty to convert the revision petition into a regular first appeal as per the directions specified supra. The revision is disposed of as specified above. In the facts and circumstances of the case, no order as to costs.