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2015 DIGILAW 719 (KAR)

JANAKI v. LALITHA

2015-07-07

A.V.CHANDRASHEKARA

body2015
ORDER : A.V. CHANDRASHEKARA, J. 1. The present petition is filed under Article 227 of Constitution of India challenging the order passed by the learned Civil Judge and JMFC, Belur on I.A. 5 filed under Order 6 Rule 17 of CPC in FDP 3/2004, petition filed under Order 20 Rule 18 of CPC seeking final decree on the basis of a preliminary decree passed in a partition suit bearing O.S. 187/1997. The said application filed by the petitioner-plaintiff under Order 6 Rule 17 of CPC has been allowed and permission is accorded to bring one more property in schedule appended to the plaint in a petition filed in FDP 3/2004. 2. The said application under Order 6 Rule 17 of CPC had been filed by the plaintiff Smt. Lalitha, respondent No. 1 herein with a request to include 3.30 acres of agricultural land in Sy. No. 128 of Madhagatta Village, Belur Taluk, Hassan District, since she had left out the land to be included to the schedule appended to the O.S. 187/1997 filed by her. According to her, this 3.30 acres of land in Sy. No. 128 of Madhagatta Village, Belur Taluk, Hassan District belonged to her father and she was not aware of same when suit was filed and therefore she had requested the court to include the same in the final decree proceedings and to grant her share in respect of this property also on the lines of award granted in O.S. 187/1997. 3. First respondent herein alone contested the application filed under Order 6 Rule 17 of CPC. Respondent No. 1 who was defendant No. 1 in the O.S. 187/1997 chose to file objections to the said application filed under Order 6 Rule 17 of CPC. She has admitted that property measuring 3.30 acres in Sy. No. 128 of Madhagatta Village, Belur Taluk, Hassan District belonged to her father and that it was his personal property and that he has given this property in her favour and therefore she is the absolute owner of the land in Sy. No. 128 measuring 3.30 acres. It is her specific stand that in the objections filed before the FDP Court that there cannot be any inclusion of this property by way of amendment as the same had not been included in the schedule appended to the plaint in O.S. 187/1997. No. 128 measuring 3.30 acres. It is her specific stand that in the objections filed before the FDP Court that there cannot be any inclusion of this property by way of amendment as the same had not been included in the schedule appended to the plaint in O.S. 187/1997. According to her the property sought to be included in the petition filed in FDP 3/2004 does not have any connection with the properties in respect of which preliminary decree has already been passed in O.S. 187/1997. Hence, she has requested the Court to dismiss the said application. 4. After hearing the arguments from the learned counsel for the parties and placing reliance of the decision of the Hon'ble Apex Court in the case of Phoolchand and Another Vs. Gopal Lal, AIR 1967 SC 1470 : (1967) 3 SCR 153 , the learned Judge of the FDP has allowed the said application and has permitted the petitioner therein, who is respondent No. 1 herein to include one property to Sy. No. 128 in the schedule appended to the final decree proceedings. According to the learned Judge, any number of preliminary decrees could be drawn in a suit for partition so long as final decree is not passed and is not engrossed on requisite stamp paper. It is this order, which is called in question in the present petition. 5. Both the learned counsel appearing for the parties have submitted their arguments at length and with their consent, the matter is taken up for final hearing. 6. After hearing the learned counsel for the parties, the points that arise for my consideration are as follows: (1) Whether the Court which has passed the preliminary decree in a suit for partition can pass any number of preliminary decrees? (2) Whether the property or properties could be added to the schedule of the final decree proceedings which had not been the subject matter of the suit filed for partition and separate possession? (3) Whether any interference is called for by this Court in terms of supervisory jurisdiction under Article 227 of Constitution of India, if so to what extent? REASONS 7. Point No. (1): In a suit for partition or separation of a shares, court at the first stage decides whether the plaintiff has a share in the schedule property and whether he/she is entitled to division and separate possession. REASONS 7. Point No. (1): In a suit for partition or separation of a shares, court at the first stage decides whether the plaintiff has a share in the schedule property and whether he/she is entitled to division and separate possession. Decision on these two issues, according to Hon'ble Apex Court, in the case of Shub Karan Bubna @ Shub Karan Prasad Bubna Vs. Sita Saran Bubna and Others, (2009) 11 JT 583 : (2009) 12 SCALE 259 : (2009) 9 SCC 689 : (2009) 14 SCR 40 is exercise of a judicial function and results in first stage decision termed as 'decree' under Order 20 Rule 18(1) and termed as 'preliminary decree' under Order 20 Rule 18(2) of CPC. The consequential division by metes and bounds considered to be a ministerial or administrative act requiring the physical inspection, measurement, calculations and considering various permutations/combinations/alternatives of division is referred to the Collector under rule 18(1) and is the subject matter of the final decree under Rule 18(2). 8. Section 54 of CPC has stood amended in the State of Karnataka with effect from 1.2.2001 vide Karnataka Act No. 36 of 1998. A duty is cast upon the Court itself to effect partition if necessary on the report of the revenue officer not below the rank of Tahsildar or such other person as the court may appoint in that behalf. But earlier to amendment, all lands assessed to land revenue had to be demarcated by the Deputy Commissioner. In view of the amendment which has come into effect from 1.2.2001 in the state of Karnataka, Court before which final decree petition is filed will have to partition the properties in terms of the shares decreed in the preliminary decree and in this regard, assistance of revenue officer not below the rank of Tahsildar or any such other person as the court may appoint as Commissioner can be taken. 9. In Shub Koran's case, the Hon'ble Apex Court has held that every application which seeks to enforce a right or seeks a remedy or relief on the basis of any cause of action in a civil court, unless otherwise provided, will be subject to the law of limitation. 9. In Shub Koran's case, the Hon'ble Apex Court has held that every application which seeks to enforce a right or seeks a remedy or relief on the basis of any cause of action in a civil court, unless otherwise provided, will be subject to the law of limitation. But where an application does not invoke the jurisdiction of the court to grant any fresh relief based on a new cause of action, but merely reminds or requests the court to do its duty by completing the remaining part of the pending suit, no limitation is applicable. In paragraph 15 of the said decision, it is made clear that such an application in a suit which is already pending, which contains no fresh or new prayer for relief is not one to which Limitation Act, 1963 would apply. 10. What exactly is the role of the Court passing preliminary decree has been succinctly explained in Shub Koran's case mentioned above in paragraph 17, the same is relevant and extracted hereinbelow: 17......Once a court passes a preliminary decree, it is the duty of the court to ensure that the matter is referred to the Collector or a Commissioner for division unless the parties themselves agree as to the manner of division. This duty in the normal course has to be performed by the court itself as a continuation of the preliminary decree. Sometimes either on account of the pendency of an appeal or other circumstances, the court passes the decree under Rule 18(1) or a preliminary decree under Rule 18(2) and the matter goes into storage to be revived only when an application is made by any of the parties, drawing its attention to the pending issue and the need for referring the matter either to the Collector or a Commissioner for actual division of the property. Be that as it may. Explaining the function of a court dealing with the suit filed for partition and separation of shares, it is reiterated that preliminary decree passed in a suit for partition and separate possession will continue to hold the field till final decree is passed and same is engrossed on a requisite stamp paper. Therefore, the final decree proceedings initiated on the basis of preliminary decree drawn in a suit for partition and separate possession is nothing but continuation of the suit. 11. Therefore, the final decree proceedings initiated on the basis of preliminary decree drawn in a suit for partition and separate possession is nothing but continuation of the suit. 11. The Hon'ble Patna High Court in the case of Sheo Pujan Rai and Others Vs. Ram Ekbal Rai @ Ekbal Rai and Others has held that some properties which had been left out in a suit filed for relief of partition and separate possession and preliminary decree drawn therein could be included in the schedule of the final decree proceedings. If properties are covered under the same set of facts which have already been decided by the learned trial court at the time of passing of the preliminary decree. It is made clear that such inclusion would neither change the nature of the suit nor it would take the other side by surprise and, on the other hand, such addition deems necessary to settle the controversy as a whole and prevent multiplicity of the suits and proceedings. Therefore, it is held that in such an event incorporation of the left out properties in the schedule appended to the final decree proceedings in terms of Order 6 Rule 17 of CPC is proper. 12. Infact reliance has been placed by the High Court of Patna on the decision rendered in the case of Somireddi Burrayya and Others Vs. Somireddi Atchayyamma, AIR 1959 AP 26 . In the case of Somereddi, the Hon'ble Andhra Pradesh High Court had allowed certain properties to be included in the final decree proceedings inspite of objections being raised by the defendants. In the decision of Sheo Pujan Rai, the decision of Hon'ble Apex Court rendered in the case of Phoolchand (stated supra) has been relied upon. 13. In the case of Phoolchand, the Hon'ble Apex court has held that there is nothing in the Civil Procedure Code which prohibits passing of more than one preliminary decree in a partition suit if circumstances justify the same and that it may be necessary to do so particularly in partition suits, when after the preliminary decree some parties die and shares of other parties are thereby augmented. In the said case, it has been succinctly held that in partition suits the court can do so even after the preliminary decree is passed. In the said case, it has been succinctly held that in partition suits the court can do so even after the preliminary decree is passed. It would be convenient to the court and advantageous to the parties, according to Phoolchand's case, to have disputed rights finally settled and specification of shares in the preliminary decree varied before a final decree is prepared. If this is done, there is a clear determination of the rights of parties to the suit on the question in dispute. It is made clear that if there is a dispute in that behalf, the order of the court deciding that dispute and making variation in shares specified in the preliminary decree already passed is a decree in itself which would be liable to be appealed. 14. In the case of K. Sundar Rao, K. Ananda Rao and K. Vishwanatha Vs. K. Ramakrishna Rao, (2007) ILR (Kar) 4308 : (2008) 4 KarLJ 18 : (2007) 4 KCCR 337 SN, this Court has relied upon the decision of this Court rendered in the case of A. Thakurdas and Anr Vs. A. Venilal and Others, AIR 1977 Kar 60 : (1976) 2 KarLJ 217 to hold that 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. The learned counsel for the petitioner has relied upon the decision rendered in the case of Venkata Reddi and Others Vs. Pothi Reddi, AIR 1963 SC 992 : (1963) 2 SCR 616 Supp to contend that 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. Pothi Reddi, AIR 1963 SC 992 : (1963) 2 SCR 616 Supp to contend that 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. In the said Venkata Reddy Case, the Hon'ble Apex Court has held that 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 CPC. It is further observed that 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. Therefore, the learned counsel appearing for the appellant has stannously argued that even if the property left out is considered as joint family property, plaintiff is inhibited to bringing the property in the final decree proceedings, inhibition under Order 2 Rule 2 of CPC is distinctly applicable. In the same decision rendered in Venkata Reddy, it is further observed that finality of a decree or a decision does not necessarily depend upon its being executable and the legislature in its wisdom has thought that suits of certain types should be decided in certain stages and though the suit in that case is regarded as 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. 16. Normally the court cannot go beyond the preliminary decree on a matter determined on a preliminary decree. In the case of R. Subramania Iyer and Others Vs. Thangammal, AIR 1965 Mad 305 : (1965) ILR (Mad) 111 : (1964) 77 LW 607 , the Hon'ble High Court of Madras 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. 17. Thangammal, AIR 1965 Mad 305 : (1965) ILR (Mad) 111 : (1964) 77 LW 607 , the Hon'ble High Court of Madras 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. 17. It is true that shares of the parties have already been decided in the present case in the preliminary decree relating to the properties that were involved in the schedule appended to the suit. But the Hon'ble Apex Court in the case of Phoolchand has held that any number of preliminary decrees can be passed after a decree in a suit for partition is decreed. In paragraph 7 of the decision rendered in the case of Phoolchand, the Hon'ble Apex Court has held that so far as partition suits are concerned if an event transpires after the preliminary decree which necessitates a change in shares, the court should do so and if there is a dispute in that behalf, the order of the court deciding that dispute and making variation in shares specified in the preliminary decree already passed is a decree in itself which would be liable to appeal. 18. The decision rendered in Phoolchand has been relied upon by the Hon'ble High Court of Patna in the case of Sheo Pujan Rai (stated supra). As per the facts of the case of Sheo Pujan, suit had been filed for partition of the suit properties seeking final decree and same was dismissed for default on 29.06.2000, but it was subsequently restored on 27.04.2005. Thereafter, on 01.03.2006 the plaintiffs filed an application for amendment for the purpose of adding some more lands in the schedule of the plaint, for which partition was sought. The said amendment came to be allowed and some Plots of land had been ordered to be added to the schedule of the plaint, which was subject for partition. The application for amendment was challenged on the ground that amendment was sought to be introduced almost 42 years after the suit was filed and that they had already partitioned much earlier and some of the properties now sought to be included had been sold by the plaintiffs themselves. The application for amendment was challenged on the ground that amendment was sought to be introduced almost 42 years after the suit was filed and that they had already partitioned much earlier and some of the properties now sought to be included had been sold by the plaintiffs themselves. What is held is that if certain properties have been left out and the plaintiffs wanted to add the same then the court may add the same and in case of dispute it may decide the dispute, but only because the nature of the property has been disputed by the other side, it cannot be said that the amendment is not permissible. It is further made clear that such exercise is required to shorten the litigation. Once the court decides the controversy on account of raising of an objection as to the nature of the property sought to be included after passing of preliminary decree, it cannot be held that the amendment is not permissible. The court, after allowing the amendment, may determine the nature of the property and the decision in that matter will amount to a preliminary decree, subject to a regular appeal under Section 96 of CPC read with Order XLI of CPC. 19. This court is of the opinion that any number of preliminary decrees can be passed in a suit for partition after first preliminary decree is passed. There is no legal inhibition for passing such preliminary decrees and limitation is not at all applicable. Hence, point No. (a) is answered in the affirmative. 20. Point No.(2): If the court dealing with a suit for partition can conclusively decide the rights of the parties on the basis of the shares already declared in the preliminary decree in terms of order 20 Rule 18(2) of CPC and when court can draw any number of preliminary decrees after the first preliminary decree is passed in suit for partition, inclusion of any property left out earlier cannot be called as incorrect or improper. Parties opposing such inclusion will be given an opportunity to file written statement as against such inclusion and the court is expected to pass one more preliminary decree in respect of property newly included deciding as to whether the property is liable for partition and if so what exactly is the share of the parties. 21. Parties opposing such inclusion will be given an opportunity to file written statement as against such inclusion and the court is expected to pass one more preliminary decree in respect of property newly included deciding as to whether the property is liable for partition and if so what exactly is the share of the parties. 21. Apart from this, court can also consider other aspects like the inclusion being hit by provisions of Order 2 Rule 2 of CPC or estoppel and limitation if property in question had been alienated to third party. It is not as though that the inclusion of a property in the schedule by way of amendment, would automatically entitle the party who has included that property seeking share. Such an inclusion is always subject to a full fledged trial based on the pleadings of the parties and another preliminary decree which is appealable in terms of Section 96 of CPC read with Section 41 of CPC. 22. In paragraph 7 of the decision rendered in Phoolchand's case, it is held that passing of more than one preliminary decree is permissible if circumstances justify the same. It is further held that so far as partition of suits are concerned, the court has got powers to alter the change in share if an event transpires after the preliminary decree. Though Apex Court was concerned with the alternation of the shares because of death of one of the parties in Phoolchand's case, the High Court of Patna in the case of Shah Koran and the High Court of Andhra Pradesh in the case of Somereddi have relied upon the decision of Phoolchand for amplifying that even if a property is left out in the preliminary decree can be the subject matter in the final decree proceedings in order to avoid multiplicity of suits and there could be another decree after a full-fledged trial. 23. In the present case, the case of the plaintiff is that she was unaware of the property held by her father and by oversight she had forgotten to include 3.30 acres of land in the schedule appended to the plaint filed by her earlier. 23. In the present case, the case of the plaintiff is that she was unaware of the property held by her father and by oversight she had forgotten to include 3.30 acres of land in the schedule appended to the plaint filed by her earlier. Contesting defendant No. 1 who is respondent No. 1 herein has admitted in unequivocal terms that the property now sought to be included belonged to her father as well as the father of plaintiff and that it was his absolute property and the same has been given to her. If the property in question belonged to the father of the plaintiff and defendant No. 1 and if there was no division, both of them would be entitled to share. Whether the father of the defendant No. 1 has conveyed the property to defendant No. 1 or whether the property now sought to be included has been bequeathed in favour of plaintiff and such other contentious issues will have to be decided after recording evidence of the parties. If the defendant No. 1 has any valid defence to be raised as against the inclusion, nothing comes in the way of defendant No. 1 to file objections in the form of written statement, on the basis of which, proper issues will have to be framed and evidence will have to be recorded and the court has to give its finding on the nature of the property and such other relevant issues. Therefore, inclusion of left out properties in the final decree proceedings is justified and proper There is no reason to take a view contrary to the one taken by the Hon Tale High court of Patna in Sheo Punja Rai's case in which the decision in the case of Poolchand is referred to and relied upon. Hence point No. (2) is answered in the affirmative. 24. In the present case, one of the properties allegedly left out is included in the schedule appended to the final decree petition. Till decision is taken on this newly included item, final decree proceedings already initiated will have to be suspended because equities will have to be worked out in the final decree proceedings after obtaining the permission of the Commissioner in terms of Section 54 of CPC which has been amended on 1.2.2001 vide Karnataka Act 36 of 1998. 25. Till decision is taken on this newly included item, final decree proceedings already initiated will have to be suspended because equities will have to be worked out in the final decree proceedings after obtaining the permission of the Commissioner in terms of Section 54 of CPC which has been amended on 1.2.2001 vide Karnataka Act 36 of 1998. 25. The very affidavit filed to the application under Order 6 Rule 17 of CPC is in the nature of the plaint and an opportunity will have to be given to the defendant to file written statement about the property now included and court will be obliged to frame issues on the basis of the pleadings of the parties and give its findings after recording evidence. Till such time, the proceedings initiated in FDP 3/2004 will have to be kept pending. 26. It need not be reiterated that any finding given on the property newly included will be subject to a regular appeal in terms of Section 96 of CPC. Hence a direction in the nature of clarification is required to be given to the Trial Court under Article 227 of Constitution of India about the manner in which issue regarding inclusion of one item will have to be dealt with. 27. There is no jurisdictional error committed by the Trial Court while allowing the application filed under Order 6 Rule 17 of CPC to the schedule on final decree petition. No good grounds are made out to interfere with the said order except giving suitable direction about the manner in which the court will have to proceed in regard to the newly included property. ORDER Petition is dismissed. The Trial Court is directed to give an opportunity to the defendant to file written statement in the same final decree proceedings FDP 3/2004 about the inclusion of 3.30 acres of land in Sy. No. 128 of Madhagatta Village, Belur Taluk, Hassan District in the schedule and the affidavit filed in support of the application filed under Order 6 Rule 17 of CPC be treated as plaint. The Trial Court shall frame appropriate issues and give opportunities to the parties to lead evidence and thereafter to give finding about the newly included property only. Till such time, FDP 3/2004 shall stand suspended. Thereafter the FDP court to pass a consolidated final decree in terms of two preliminary decrees.