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2005 DIGILAW 58 (KER)

Kochukunju Stephen v. Ashia Ummal

2005-01-28

R.BHASKARAN

body2005
Judgment :- R. Bhaskaran, J. This appeal is filed by the additional 26th defendant O.S.No.237 of 1963 on the file of the Munsiff’s Court, Nedumangad. The suit was filed for partition of 13 items. The Trial Court passed a preliminary decree on 23.5.1967 in respect of items excluding items 1, 2, 6 and 20 in item No.4. The plaintiff was granted a decree for partition of 119/576 shares. The appeal and second appeal against the preliminary decree ended in dismissal. Subsequently, the plaintiff filed an application I.A.No.253 of 1977 for final decree. Pending the final decree application, the 13th defendant died on 1.2.1980. His widow and children filed I.A.1345 of 1981 for impleading them as additional defendants. That was allowed. Defendants 22, 23, 25, 26 and 29 med C.R.P.No.2108 of 1983. This Court disposed of the C.R.P. in the following words: “10. When a defendant dies and if no legal representative is impleaded within time the result according to O. XXII, R.4(3) is that the suit as against the deceased defendant will abate in cases where the right to sue survives. As already stated by me the persons impleaded as legal representatives could raise only contentions which were available to the deceased defendant. In this case even items 12 and 13 were allowed to be partitioned by the preliminary decree with the deceased 18th defendant on the array of parties. If that decision is held binding on additional defendants it will definitely work hardship on them. When they are entitled to raise their independent claims necessarily the preliminary decree may have to be reopened if that course becomes necessary on their contentions based on independent title”. The C.R.P. was therefore partly allowed and the revision petitioners were permitted to raise their independent claim on items 12 and 13 including the plea of adverse possession and limitation. Subsequently the final decree Court dismissed the final decree application stating as follows: “23. In this case, the alienation by Ist defendant as per Ext.A3 document was in 1918 M.E. which corresponds to 1943. If 12 years is computed from 1943 on awards in 1955 13th defendant has prescribed title by adverse possession and limitation. In the alternative, if the period of limitation or adverse possession is computed from the date of Ext.B1, additional defendants 23, 26 and 29 have prescribed title in 1973. If 12 years is computed from 1943 on awards in 1955 13th defendant has prescribed title by adverse possession and limitation. In the alternative, if the period of limitation or adverse possession is computed from the date of Ext.B1, additional defendants 23, 26 and 29 have prescribed title in 1973. It is pertinent to note that Ext.B1 would reveal the independent right held by additional defendants from 1961 onwards. They were impleaded only after 1 1973 as per order in I.A.1345/81. If so, additional defendants 23, 26 & 29 have prescribed title by adverse possession and limitation. 24. But, this is a stage in which we are considered with the question of passing a final decree in terms of preliminary decree. The title of the plaintiff is already declared in the preliminary decree proceedings and the decree has become conclusive. But, the preliminary decree is not binding against the additional defendants 22 to 29, since they are not parties to the proceedings, even though they are having independent title as on the date of suit. Hence the application is only to be dismissed: But, plaintiff can apply for passed a final decree after impleading the additional defendants for a binding decree. But he is at liberty to apply for pray final decree regarding other terms”. 2. The Appellate Court allowed the appeal and directed the Trial Court to proceed with items 4 and 5 of the plaint schedule property. The Appellate Court also set aside the final decree passed by the Trial Court and directed the Munsiff to reopen the preliminary decree in the light of the specific observation passed by this Court in C.R.P.No.2108 of 1983 arid afford opportunity to the petitioners in that C.R.P. to raise their independent claim and pass a supplemental preliminary decree in accordance with law as far as the claim over items Nos.12 and 13 of plaint schedule properties alone. 3. The 13th defendant was exparte. The application for setting aside the exparte order was also dismissed. Now the contention of the appellant in this appeal is that the 13th defendant had obtained right in the property by Ext.B3 document dated 22.1.1118 ME and by Ext.B1 the 13th defendant transferred the right to his wife and children who were impleaded in the final decree proceedings as defendants 22 to 29. Now the contention of the appellant in this appeal is that the 13th defendant had obtained right in the property by Ext.B3 document dated 22.1.1118 ME and by Ext.B1 the 13th defendant transferred the right to his wife and children who were impleaded in the final decree proceedings as defendants 22 to 29. Their contention is that on the date of filing of the suit in 1963 the 13th defendant had, no subsisting interest and any decree passed without the real owners on the party array has no legal effect and the 18th defendant was not bound to contest as he had, ceased to have any right in the property. It is therefore contended that there was no necessity for the Appellate Court to direct the Trial Court to reopen the preliminary decree after affording defendants 22 to 29 to file written statement. It is also contended that the observations made in the CRP were treated as direction by the Appellate Court which was necessary. 4. After hearing the learned counsel for the appellant as well as the respondents I do not find any ground to interfere in this appeal. As already noted the observations of this Court in C.R.P.No.2108 of 1983 are clear and specific and it does not give any room for doubt. It is made clear that in so far as defendants 22 to 29 were concerned, they were not parties to the suit and the decree is not binding on them. At the same time; they were impleaded as legal representatives and they will be allowed to put forward their contentions which were available for the deceased 13th defendant. This Court found that they should be allowed to put forward their independent claims also. The final decree Court was therefore not justified in dismissing the final decree application. It is without reopening the preliminary decree and -without giving an opportunity to additional defendants to put forward their independent rights the final decree application was dismissed. This Court found that they should be allowed to put forward their independent claims also. The final decree Court was therefore not justified in dismissing the final decree application. It is without reopening the preliminary decree and -without giving an opportunity to additional defendants to put forward their independent rights the final decree application was dismissed. It is also pointed out by the learned counsel for the respondents that the 13th defendant died on 1.2.1980 and as per Ext.B1 settlement deed executed by the 13th defendant, he had reserved life interest in himself and therefore possession had not passed to the knowledge of the other shares to the-legal representatives of 13th defendant and therefore the plaintiffs were not in a position to implead the legal representatives of the 13th defendant when the suit was filed. It was only in the final decree proceedings that die right set up by defendants 22 to 29 were made known to the plaintiffs and therefore there was sufficient justification for the omission of the plaintiffs to implead them in the suit. The learned counsel also relied on the decision of the Supreme Court in Phoolchand v. Gopal Lal, AIR 1967 SC 1470, and Shivaramaiah v. Mallikarjunaiah, AIR 1978 Karnt. 76, and Sudarsan Panda v. Laxmidhar Panda, AIR 1983 Orissa 121. All these decisions say that preliminary decree can be reopened and a subsequent preliminary decree an be passed especially in partition suits when the shares are changed. According to the learned senior counsel, there is no variation of shares in the present case and therefore it is not a fit case where supplementary preliminary decree can be passed. I do riot think that the Supreme Court has confined the possibility of passing supplementary preliminary decree only in cases where the shares have changed. In case where the availability of 2 items in the plaint schedule property is itself disputed by persons who are not impleaded before the preliminary decree but were impleaded in the final decree proceedings and when this Court found, that by their impleadment they can be allowed to set up their independent claims also the preliminary decree can be reopened off considering the question whether those items are available or not. There is no prohibition in the Code of Civil Procedure in passing such a supplementary preliminary decree in certain circumstances. There is no prohibition in the Code of Civil Procedure in passing such a supplementary preliminary decree in certain circumstances. In the light of the above discussion, I do not find any reason to interfere with the order of remand passed by the Appellate Court and the CMA is dismissed with costs.