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2013 DIGILAW 185 (KAR)

Murthujabi v. Nilamma

2013-02-14

N.Kumar

body2013
ORDER N. Kumar, J: This writ petition is filed by the petitioner-defendants challenging the order passed by the Final Decree Court allowing the application filed under Order 9, Rule 14 of CPC appointing City Surveyor, Bijapur as Court Commissioner to carry out the measurements of the suit property in CTS No. 1138/2C1 of Ward No.III of Bijapur to effect the actual division of plaintiffs 4/9th share by metes and bounds. 2. The case of the petitioners is that they are the owners in lawful possession of house property bearing CTS No. 1138/2C/1A situated at Ward No.13 of Bijapur City. The predecessor in title had purchased the property under a registered sale deed dated 22.03.1960. The respondents herein filed a suit in O.S.No.113/1964 on the file of the Addl. Munsiff, Bijapur, for partition and separate possession against the father of these petitioners and others. The said suit came to be decreed on 21.12.1967 awarding 1/9th share to each of the parties. The petitioners' father preferred R.A.No.721 1968, which came to be dismissed. Therefore, the said decree attained finality on 21.12.1967. The final decree proceeding was initiated in FDP No.1/81, which came to be dismissed for non-prosecution on 30.01.1985. In the mean while, the properties have been sold. Now the respondents have initiated final decree proceedings in FDP No.2/2008 for effecting partition by metes and bounds in terms of the preliminary decree. In the said proceedings they have filed an application for appointment of Court Commissioner for effecting partition. The said application was opposed firstly, on the ground that the application is barred by time. Secondly, on the ground that the earlier application had been dismissed and therefore the second application is not maintainable. Thirdly, on the ground that after the preliminary decree, if the final decree application came to be dismissed, the parties have alienated the properties under a registered document, possession has been delivered and mutation entries have been made on the basis of the sale deeds. Therefore at this stage the question of effecting partition in terms of the preliminary decree would not arise. Lastly, it was contended that as the petitioners are in possession of the property adversely to the interest of the respondents, they have perfected their title by adverse possession. Overruling the said objections, the Final Decree Court has allowed the application. Aggrieved by the said order, the present writ petition is filed. 3. Lastly, it was contended that as the petitioners are in possession of the property adversely to the interest of the respondents, they have perfected their title by adverse possession. Overruling the said objections, the Final Decree Court has allowed the application. Aggrieved by the said order, the present writ petition is filed. 3. I have heard learned Counsel for the parties. 4. In a suit for partition as well as mortgages there are two decrees, preliminary decree and final decree. The preliminary decree passed, is not a tentative decree but must, insofar as the matters dealt with by it are concerned, be regarded as conclusive. In suits which contemplate the making of two decrees a preliminary decree and a final decree, the preliminary decree as such cannot be put to execution. What can be executed is a final decree, and not a preliminary decree. The legislature in its wisdom has thought that suits of certain types should be decided in stages. In such cases the suit 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, but is not executable. 5. When a suit for partition is filed in Court, a preliminary decree is passed determining the shares of the members of the family. The final decree follows, thereafter allotting specific properties and directing partition of immovable property by metes and bounds. Unless and until a final decree is passed and allottees of the shares are put in possession of their respective properties, the partition is not complete. The preliminary decree which determines the shares does not bring about final partition. The only adjudication that takes place at the stage of preliminary decree is the entitlement of the extent of share to which the members of the family are entitled to. It is after preliminary decree determining the shares to which each party is entitled to, in the final decree proceedings, the separation of their share has to be gone into. A final decree is to be passed in terms of the preliminary decree. The declaration of rights or shares is only the first stage, in a suit for partition. A preliminary decree does not have the effect disposing of the suit. A final decree is to be passed in terms of the preliminary decree. The declaration of rights or shares is only the first stage, in a suit for partition. A preliminary decree does not have the effect disposing of the suit. But the finality of a decree or a decision does not necessarily depend upon its being executable. A decree whether preliminary or final is binding on the parties, but the same does not mean that all decrees would be final decrees. The suit continues to be pending until partition, that is division by metes and bounds, cakes place by passing a final decree. An application requesting the Court to take necessary steps to draw up a final decree effecting a division in terms of the preliminary decree, is neither an application for execution (falling under Article 136 of the Limitation Act) nor an application seeking a fresh relief (falling under Article 137 of Limitation Act). It is only a reminder to the Court to do its duty to appoint a Commissioner, get a report, and draw a final decree in the pending suit so that the suit is taken to its logical conclusion. A final decree proceeding may be initiated at any point of time. No limitation is provided therefor. Therefore, the contention that the final decree proceedings initiated for the second time is barred by time is without any substance. [Ref: Shub Karan Bubna Vs. Sita Saran Bubna, AIR 2009 SC (supp) 2863; Bikoba Deora Gaihwad Vs. Hirabai Marutirao Ghorgare, AIR 2009 SC (supp) 454; and Hasham Abbas Sayyad Vs. Usman Abbas Sayyad, AIR 2007 SC 1077(1)]. 6. At the same time, during the pendency of the proceedings, right by way of adverse possession is not acquired and therefore, the contention of the petitioners that they have perfected their title by adverse possession is without any substance. Merely because the parties have alienated the property under registered document and mutation entries have been made, that in no way changes the character of the suit or scope of final decree proceedings. It is in the final decree proceedings the actual extent of land as per the shares declared in the preliminary decree is to be carved out. Shares have to be adjusted according to the alienations made if any. These are all subject matter of final decree proceedings. It is in the final decree proceedings the actual extent of land as per the shares declared in the preliminary decree is to be carved out. Shares have to be adjusted according to the alienations made if any. These are all subject matter of final decree proceedings. Therefore, I do not see any substance in any of the contentions raised on behalf of the petitioners. No merit. Dismissed. Writ Petition dismissed.