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2023 DIGILAW 2369 (MAD)

Periyammal v. Indirani

2023-07-12

R.VIJAYAKUMAR

body2023
JUDGMENT (Prayer in CMSA(MD).No. 37 of 2015 : Civil Miscellaneous Second Appeal filed under Sections 100 and 108 of Civil Procedure Code to set aside the judgment and decree dated 30.09.2008 passed in EA.No.8 of 2007 in EP.No.562 of 1998 in O.S.No.861 of 1996 on the file of the Additional District Munsif, Dindigul and confirmed by the judgment and decree dated 07.04.2015 passed in CMA.No.20 of 2009 on the file of the Additional Subordinate Court, Dindigul. in CMSA(MD).No.11 of 2023 : Civil Miscellaneous Second Appeal filed under Order 43 Rule 1 read with Section 100 of Civil Procedure Code to set aside the judgment and decree dated 07.04.2015 passed in CMA.No.22 of 2009 by the Additional Subordinate Court, Dindigul confirming the judgment and decree dated 30.09.2008 passed in EA.No.9 of 2007 in EP.No.562 of 1998 in O.S.No.861 of 1996 on the file of the Additional District Munsif, Dindigul.) Common Judgment: 1. CMSA(MD).No.37 of 2015 has been filed by the plaintiffs/ decree holders in a suit for partition challenging the allowing of an application under Order 21 Rule 90 C.P.C by the trial Court and confirmed by the First Appellate Court. 2. CMSA(MD).No.11 of 2023 has been filed by the 35th defendant in CMA(MD).No.22 of 2009 on the file of the Additional Subordinate Court, Dindigul challenging the allowing of an application under Order 21 Rule 90 C.P.C. The appellant in CMSA(MD).No.11 of 2023 is a purchaser from the decree holder by way of a sale deed dated 11.02.2005. 3. Factual Background: (i). One Periyammal, Kamalammal and Valliammal as plaintiffs had filed O.S.No.861 of 1996 on the file of the II Additional District Munsif Court, Dindigul for the relief of partition and separate possession of their 2/15th share. The said suit was filed on 09.09.1986. A preliminary decree was passed on 14.11.1996. The plaintiffs had filed an application in I.A.No.60 of 1997 for passing a final decree and a final decree was passed on 14.07.1998. The decree holders had filed E.P.No.562 of 1998 to take delivery of the property as per final decree. According to the decree holders, they have taken delivery of the property. (ii). The appellant in CMSA(MD).No.11 of 2023 had purchased an extent of 1656 sq.ft. from the decree holders on 11.02.2005. According to her, she had put up construction for a value of Rs.15,00,000/- and she is residing with her family members. According to the decree holders, they have taken delivery of the property. (ii). The appellant in CMSA(MD).No.11 of 2023 had purchased an extent of 1656 sq.ft. from the decree holders on 11.02.2005. According to her, she had put up construction for a value of Rs.15,00,000/- and she is residing with her family members. (iii).The legal heirs of one P.M.Krishna had filed E.A.No.8 of 2007 under Order 21 Rule 90 C.P.C to declare that the decree and the delivery order obtained by the plaintiffs in E.P.No.562 of 1998 to be null and void and not binding upon them and for re-delivery of the property. In the said petition, they have contended that Rajaservai who is one of the co-sharers of the property had sold an extent of 4350 sq.ft out of 1.19 ½ acres in T.S.No.1960/4 in favour of one Kanchana on 15.12.1980. The said Kanchana had sold 2750 sq.ft out of 4350 sq.ft to P.M.Krishna on 15.05.1985. Though the suit for partition was filed on 09.09.1986, the said P.M.Krishna was not made as a party either during the preliminary decree proceedings or the final decree proceedings. The suit property being a vacant site, the decree holders claimed that they have taken possession of the property on 12.12.2009. However, no such delivery was taken. (iv).According to the petitioners in E.A.No.8 of 2007, without impleading the purchasers of undivided share, who had purchased the property prior to the filing of the partition suit, the partition decree and the delivery orders are not maintainable and they sought for re-delivery. (v). One R.Ramasamy had filed E.A.No.9 of 2007 contending that Rajaservai who is one of the co-sharers had alienated 4350 sq.ft out of 2.39 acres in favour of one Janakiram Naidu on 15.12.1980. The said Janakiram Naidu had executed a registered sale deed in favour of the petitioner namely R.Ramasamy on 13.06.1986. Though the suit for partition was filed on 09.09.1986, neither Janakiram Naidu nor the petitioner namely Ramasamy were impleaded in the suit for partition. Under the guise of taking possession, when the decree holder attempted to disturb the possession, he had filed O.S.No.102 of 1999 seeking permanent injunction. In the said suit, he had filed I.A.No.113 of 1999 seeking permanent injunction. Under the guise of taking possession, when the decree holder attempted to disturb the possession, he had filed O.S.No.102 of 1999 seeking permanent injunction. In the said suit, he had filed I.A.No.113 of 1999 seeking permanent injunction. (vi).The decree holders had filed a counter in I.A.No.113 of 1999 contending that they have taken delivery through Court in a partition suit and only thereafter he came to know about the partition suit. Hence the present application in E.A.No.9 of 2007 has been filed to declare that the decree and delivery order as null and void and for re-delivery. (vii).The decree holders had further contended that Rajaservai had been executing sale deeds in excess of his share and therefore, these two sale deeds dated 15.12.1990 are not valid in the eye of law. That apart, one of the purchasers from Rajaservai namely Kanchana had been impleaded as 23rd defendant in the suit and she had chosen to remain exparte. It was further contended that when Rajaservai had sold in excess of his share, the sale deeds are not valid in the eye of law and therefore, the present obstruction petitioners will not have any right whatsoever to seek re-delivery of the property. 4. The Executing Court after considering the submissions made on either side, had arrived at a finding that all the sale deeds having been executed by Rajaservai prior to the filing of the suit for partition and therefore, they should have been impleaded as parties either during the trial Court decree proceedings or at least in the final decree proceedings. The share of the Rajaservai in the suit schedule property is not been disputed. Therefore, the right of Rajaservai to alienate his undivided share cannot be disputed. Therefore, the purchasers derive title to the extent of the share of Rajaservai. Hence, without impleading the purchasers, the decree obtained by the plaintiffs is not maintainable and the obstruction petitions were allowed. Challenging the same, the plaintiffs /decree holders have filed CMA.Nos.20 of 2009 and 22 of 2009 before the Additional Subordinate court, Dindigul. The learned Subordinate Judge was pleased to confirm the judgement and decree of the Executing Court. 5. Hence, without impleading the purchasers, the decree obtained by the plaintiffs is not maintainable and the obstruction petitions were allowed. Challenging the same, the plaintiffs /decree holders have filed CMA.Nos.20 of 2009 and 22 of 2009 before the Additional Subordinate court, Dindigul. The learned Subordinate Judge was pleased to confirm the judgement and decree of the Executing Court. 5. When CMA.No.22 of 2009 was pending, one Karkandu had filed I.A.No.2 of 2013 to get herself impleaded in the appeal on the ground that she had purchased the properties from the decree holders after they have taken delivery of the property i.e on 11.02.2005. Her impleading application was allowed and she was impleaded as 35th respondent. 6. CMSA(MD).No.37 of 2015 has been filed by the original decree holders and CMSA(MD).No.11 of 2023 has been filed by the 35th respondent in the appeal who had purchased the property based on final decree. 7. The learned counsel for the appellants in the both the appeals had contended that the Executing Court as well as the Appellate Court have erred in setting aside the decree in entirety. Whatever that is due to Rajaservai has been left behind and the obstruction petitioners could be accommodated in the said share. For the purpose of accommodating the purchaser, the entire final decree ought not to have been set aside. 8. The learned counsel had further contended that in the written statement, the Rajaservai has not mentioned about both the sale deeds dated 15.12.1980 said to have been executed in favour of Janakiram Naidu and Kanchana. In fact after finding that one sale deed was executed in favour of Kanchana, she was immediately impleaded as 23rd defendant. The said Kanchana had chosen to remain exparte. Therefore, the purchaser from the said Kanchana namely P.M.Krishna or his legal heirs cannot now contend that they were not impleaded as parties. Hence, he prayed for allowing the appeals. 9. Per contra, the learned counsel appearing for the respondents/obstruction petitioners had contended that when the sale deeds in favour of P.M.Krishna and R.Ramasamy are prior to the filing of the partition suit, they should have been impleaded as parties. Without impleading the purchaser from a co-sharer, the suit for partition is not maintainable. Therefore, the Executing Court as well as Appellate Court were right in setting side the final decree proceedings and ordering re-delivery of the property. Without impleading the purchaser from a co-sharer, the suit for partition is not maintainable. Therefore, the Executing Court as well as Appellate Court were right in setting side the final decree proceedings and ordering re-delivery of the property. They have prayed for sustaining the order passed by the Courts below. 10. CMSA(MD).No.37 of 2015 has been admitted on the following substantial questions of law: “1. Whether the Courts below are erred in law in entertaining the application under Order 21 Rule 97 of C.P.C by an applicant who admittedly claiming his right under a judgment debtor suffering a decree for partition and having only 1/15 share. 2. Whether the Courts below are erred in law in their finding that not impleading a purchaser of an undivided joint family property is fatal to the partition decree. 3. Whether the Courts below are erred in their finding that the respondents 1 to 4 are bonafide purchasers in the absence of any pleading or proof that they believed on due enquiry that their vendor had marketable title. 4. Whether the Courts below are erred in law in indirectly setting aside partition at the instance of the respondents 1 to 4 without any finding that their vendor the defendant No.23 was a bonafide purchaser and entitled to equity in the final decree proceedings.” 11. CMSA(MD).No.11 of 2023 has been admitted on the following substantial questions of law: “1. Whether the Courts below are erred in law in entertaining the application under Order 21 Rule 97 of C.P.C by an applicant who admittedly claiming his right under a judgment debtor suffering a decree for partition and having only 1/15 share. 2. Whether the Courts below are erred in law in their finding that not impleading a purchaser of an undivided joint family property is fatal to the partition decree. 3. Whether the Courts below are correct in law by holding that the 3rd respondent is a bonafide purchaser in the absence of any pleading or proof that they believed on due enquiry that their vendor had marketable title. 4. Whether the Courts below are correct in law in indirectly setting aside partition at the instances of the 3rd respondent''s claim without any finding that their vendor the defendant No.21 was a bonafide purchaser and entitled to enquiry in the final decree proceedings? 12. 4. Whether the Courts below are correct in law in indirectly setting aside partition at the instances of the 3rd respondent''s claim without any finding that their vendor the defendant No.21 was a bonafide purchaser and entitled to enquiry in the final decree proceedings? 12. There is no dispute that Rajaservai is having a share in the suit schedule property. The said Rajaservai had sold 4650 sq.ft. to Janakiram Naidu on 15.12.1990. He had sold another extent of 4350 sq.ft. to one Kanchana on the same day. The said Kanchana had sold 2750 sq.ft to one P.M.Krishna on 15.05.1985. The said Janakiram Naidu had sold entire extent to Ramasamy on 13.06.1986. The suit for partition has been filed on 09.09.1986. Therefore, it is clear that all the sale deeds have been executed by Rajaservai and his purchasers prior to the filing of the suit for partition. Though Kanchana was impleaded as 23rd defendant, her purchaser namely P.M.Krishna has not been impleaded. Though his purchase was prior to the suit in the case of E.A.No.9 of 2007 neither Janakiram Naidu nor his purchaser R.Ramasamy were impleaded in the suit. Therefore, it is clear that they can never be considered to be the purchaser pending litigation. 13. The Hon''ble Supreme Court in a judgment reported in (2007) 10 SCC 719 ( Dhanalakshmi and others Vs. P.Mohan and others) in Paragraph Nos. 5 to 7 has held as follows: “5. Section 52 deals with a transfer of property pending suit. In the instant case, the appellants have admittedly purchased the undivided shares of the respondent nos.2,3,4 & 6. It is not in dispute that the first respondent P. Mohan has got an undivided share in the said suit property. Because of the purchase by the appellants of the undivided share in the suit property, the rights of the first respondent herein in the suit or proceeding will not affect his right in the suit property by enforcing a partition. Admittedly, the appellants, having purchased the property from the other co-sharers, in our opinion, are entitled to come on record in order to work out the equity in their favour in the final decree proceedings. In our opinion, the appellants are necessary and proper parties to the suit, which is now pending before the Trial Court. Admittedly, the appellants, having purchased the property from the other co-sharers, in our opinion, are entitled to come on record in order to work out the equity in their favour in the final decree proceedings. In our opinion, the appellants are necessary and proper parties to the suit, which is now pending before the Trial Court. We also make it clear that we are not concerned with the other suit filed by the mortgagee in these proceedings. 6. We, therefore, set aside the order passed by the High Court and order the application for impleadment filed by the appellants herein and array them as party defendants nos.7, 8 & 9 in the Suit. The appellants will now be at liberty to file the written statements in the pending suit. 7. In view of the order now passed by this Court, the preliminary decree passed by the Trial Court in the absence of the appellants cannot stand. We, therefore, set aside the preliminary decree and restore the suit to its original number and direct the Trial Court to dispose of the same on merits and affording opportunity to the appellants to file a written statement and after framing the necessary issues. The Trial Court is directed to dispose of this suit within six months from today.” 14. In the judgement of the Hon''ble Supreme Court cited supra, an undivided share was alienated by a co-sharer pending partition suit. The impleading petition filed by the purchaser was dismissed and the suit culminated in passing of a preliminary decree. The Hon''ble Supreme Court was pleased to hold that the purchasers are entitled to come on record in order to work out the equity in their favour in the final decree proceedings and they are not only proper but also necessary parties. The Hon''ble Supreme Court had set aside the preliminary decree and restored the suit. 15. In the present case, the obstruction petitioners are not purchasers pendente lite but they have purchased the property prior to the filing of the suit. Therefore, they are necessary parties to the final decree proceedings to work out their remedy. The Executing Court as well as the Appellate Court have rightly allowed the obstruction petitions. Though the obstruction petitioners are claiming under the judgement debtor, they are not purchasers pendente lite, but they have purchased prior to the suit for partition. Therefore, they are necessary parties to the final decree proceedings to work out their remedy. The Executing Court as well as the Appellate Court have rightly allowed the obstruction petitions. Though the obstruction petitioners are claiming under the judgement debtor, they are not purchasers pendente lite, but they have purchased prior to the suit for partition. Therefore, all the substantial questions of law are answered as against the appellant in both the appeals. 16. In view of the above said deliberations, this Court passes the following orders. (i). Both the Civil Miscellaneous Second Appeals stand dismissed. (ii). The final decree proceedings shall be reopened. The petitioners in E.A.Nos.8 of 2007 and 9 of 2007 shall be impleaded in the said final decree proceedings. (iii). In case, if the decree holders have already taken delivery of the property based upon the final decree dated 14.07.1998, the possession of the decree holder or the purchasers from the said decree holder shall not be disturbed till passing of a fresh final decree. (iv). The decree holders or those claiming under them cannot claim equity on the basis of alleged constructions put up by them pursuant to the final decree dated 14.07.1998. (v). The final decree application shall be disposed of on or before 31.12.2023 after giving due opportunity to all the parties. 17. With the above observations, these Civil Miscellaneous Second Appeals stand dismissed. No costs. Consequently, connected miscellaneous petitions are closed.