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2006 DIGILAW 750 (AP)

S. Ibrahim v. Yusuf Miaha

2006-06-30

L.NARASIMHA REDDY

body2006
JUDGMENT This C.M.S.A. is filed against the judgment, dated 23-02-2006, in AS. NO.6 of 2000 on the file of the learned Senior Civil Judge, Nandikotkur. The said appeal arose out of I.ANo.336 of 1998 in I.ANo.918 of 1985 in O.S.No.386 of 1973, on the file of the learned Principal Junior Civil Judge, Nandikotkur. 2. The mother of the appellant herein and her sister filed the suit, against some of the respondents herein, for the relief of partition and separate possession of the suit schedule property. A preliminary decree was passed, holding that the plaintiffs are entitled to 48/96th share (half of the suit schedule properties) and the original defendants in the suit are entitled to the remaining half. After it assumed finality, the plaintiffs filed I.A.No.918 of 1985 with a prayer to pass final decree. A Commissioner was appointed, who, in turn, divided the suit schedule property into different shares and allotted them to the respective parties. Through order, dated 17-03-1986, the trial Court had allotted certain items of the suit schedule property towards the 48/96th share of the plaintiffs and other items to the defendants therein. Even this order has become final. 3. The appellant filed I.A.No.336 of 1998 stating that his mother died, leaving himself as the sole legal representative and the second plaintiff in the suit also died, leaving her legal representatives and that the same has necessitated to bring about a division of shares once again. The trial Court allowed the I.A., through order, dated 04-02-2000, directing division of the suit schedule properties among the legal representatives of the two plaintiffs. The defendants in the suit filed A.S.No.6 of 2000. The lower appellate Court, through its order, dated 23-02-2006, allowed the appeal and set aside the order passed by the trial Court. 4. Sri O. Manohar Reddy, the learned counsel for the appellant submits that it is permissible for a Court to pass any number of final decrees and there was no justification for the lower appellate Court in allowing the appeal. He contends that the necessity for the appellant to seek further division arose, on account of the death of the two original plaintiffs. 5. It is on record that the preliminary decree as well as the final decree passed by the trial Court has become final, about decades ago. He contends that the necessity for the appellant to seek further division arose, on account of the death of the two original plaintiffs. 5. It is on record that the preliminary decree as well as the final decree passed by the trial Court has become final, about decades ago. It is true that more than one final decree can be passed in a suit for partition. However, such an occasion would arise, if only any properties, which were found to be available for partition in a preliminary decree, are left over, or kept aside, while passing the final decree. The final decree, so passed, would not be exhaustive, but would only deal with a part of the suit schedule properties. As and when the occasion arises, the parties can approach the Court, for passing another final decree, as regards the left over items of suit scheduled properties. In the instant case, the final decree passed by the trial Court in I.A.No.918 of 1985 was exhaustive. At any rate, the prayer in I.A.No.336 of 1998 is not in respect of any properties that are said to have been left over in the final decree passed on 17-03-1986. 6. Be it at the request of the original plaintiffs, or otherwise, the Court allotted certain items of suit schedule property jointly in favour of them. The plaintiffs, in turn, did not feel the necessity of requesting the Court to allot them, their own independent shares. With the allotment of joint share in favour of the plaintiffs and other shares in favour of the defendants, the Court has virtually become functus officio. A further division of the properties between the legal representatives of the plaintiffs does not constitute the subject matter of the suit. If the appellant or for that matter, the legal representatives of the other plaintiff are so advised, they have to file another suit and seek partition among themselves. Therefore, the lower appellate Court had approached the matter from proper perspective and this Court does not find any basis to interfere with the same. 7. Accordingly, the C.MS.A. is dismissed. There shall be no order as to costs.