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2015 Supreme(Mad) 2510
IN THE HIGH COURT OF JUDICATURE AT MADRAS
M. Duraiswamy, J.
The Commissioner cum Block Development Officer, Panchayat Union and Ors. - Appellants
Vs.
H.M. Kari Gowder and Ors. - Respondents
C.R.P. (PD) No. 2636 of 2015, M.P. No. 1 of 2015, C.R.P. (NPD) No. 3505 of 2014, M.P. No. 1 of 2014 and C.R.P. (PD) No. 4489 of 2013
Decided On: 23.07.2015
Advocate Appeared:
For the Appellants: T. Mohan for K. Rajendra Prasad
For the Respondents: M.S. Krishnan, Senior Counsel for T.R. Sathiyamohan
The entitlement of the plaintiffs to seek for final decree for partition and the trial Court's obligation to pass the final decree only in terms of the preliminary decree.
Headnote:
Order - Plaint - Civil Procedure Code - Order 7 Rule 11 - [O.S. No. 207 of 2013, I.A. No. 307 of 2012, I.A. No. 507 of 2014, I.A. No. 375 of 2013, C.R.P. (PD). No. 4489 of 2013, C.R.P. (NPD). No. 3505 of 2014, C.R.P. (NPD). No. 2636 of 2015] - The court dismissed the final decree application in I.A. No. 307 of 2012 finding that the preliminary decree passed in O.S. No. 182 of 1977 ought to have been amended by bringing on record all the legal representatives of the plaintiffs 1 & 2. The plaintiffs filed a final decree application, which was dismissed by the trial Court. The plaintiffs filed a Civil Revision Petition, which was allowed. The trial Court, while granting preliminary decree, dismissed the suit as against the defendants 6 to 26. The plaintiffs filed a suit for partition and to declare the preliminary decree and judgment passed in O.S. No. 182 of 1977 as null and void and for declaration that the Gift Settlement Deed dated 13.12.1976 executed by the defendants 26 to 29 and others in favour of the 31st defendant as partially null and void upto the plaintiffs' share. The court held that the plaintiffs are entitled to seek for final decree for partition of their share and in which event there is no need to implead the defendants 6 to 26 in the final decree petition, when the suit has been dismissed against them. The trial Court had already passed the final decree in I.A. No. 307 of 2012. The trial Court dismissed the application in I.A. No. 507 of 2014 in I.A. No. 307 of 2012 in O.S. No. 182 of 1977. The trial Court has to pass the final decree only in terms of the preliminary decree and the trial Court cannot deviate from the preliminary decree. The court dismissed all the three Civil Revision Petitions.
Fact of the Case:
The plaintiffs filed a suit for partition and permanent injunction. The trial Court passed a preliminary decree. The plaintiffs filed a final decree application, which was dismissed by the trial Court. The plaintiffs filed a Civil Revision Petition, which was allowed. The trial Court dismissed the suit as against the defendants 6 to 26. The plaintiffs filed a suit for partition and to declare the preliminary decree and judgment passed in O.S. No. 182 of 1977 as null and void and for declaration that the Gift Settlement Deed dated 13.12.1976 executed by the defendants 26 to 29 and others in favour of the 31st defendant as partially null and void upto the plaintiffs' share.
Finding of the Court:
The court held that the plaintiffs are entitled to seek for final decree for partition of their share and in which event there is no need to implead the defendants 6 to 26 in the final decree petition, when the suit has been dismissed against them. The trial Court had already passed the final decree in I.A. No. 307 of 2012. The trial Court dismissed the application in I.A. No. 507 of 2014 in I.A. No. 307 of 2012 in O.S. No. 182 of 1977. The trial Court has to pass the final decree only in terms of the preliminary decree and the trial Court cannot deviate from the preliminary decree. The court dismissed all the three Civil Revision Petitions.
Issues: The issues involved in the case included the dismissal of the final decree application, the entitlement of the plaintiffs to seek for final decree for partition, and the validity of the Gift Settlement Deed dated 13.12.1976 executed by the defendants 26 to 29 and others in favour of the 31st defendant.
Ratio Decidendi: The court held that the plaintiffs are entitled to seek for final decree for partition of their share and in which event there is no need to implead the defendants 6 to 26 in the final decree petition, when the suit has been dismissed against them. The trial Court had already passed the final decree in I.A. No. 307 of 2012. The trial Court dismissed the application in I.A. No. 507 of 2014 in I.A. No. 307 of 2012 in O.S. No. 182 of 1977. The trial Court has to pass the final decree only in terms of the preliminary decree and the trial Court cannot deviate from the preliminary decree.
Final Decision: The court dismissed all the three Civil Revision Petitions.
M. Duraiswamy, J.
1. C.R.P. (PD). No. 4489 of 2013 has been filed by the defendants 1 to 25 in O.S. No. 207 of 2013 on the file of the Sub-Court, The Nilgiris, to strike off the plaint in O.S. No. 207 of 2013 under Order 7 Rule 11 of the Civil Procedure Code.
2. C.R.P. (NPD). No. 3505 of 2014 has been filed by the 3rd party petitioners, who are the legal representatives of the deceased defendants 6 to 26 challenging the fair and decreetal order passed in I.A. No. 507 of 2014 in I.A. No. 307 of 2012 in O.S. No. 182 of 1977 on the file of the Subordinate Court, The Nilgiris at Uthagamandalam.
3. C.R.P. (NPD). No. 2636 of 2015 has been filed by the 3rd party petitioner challenging the order passed in I.A. No. 375 of 2013 in I.A. No. 307 of 2012 in O.S. No. 182 of 1977 on the file of the Subordinate Court, The Nilgiris at Uthagamandalam.
4. Since the issues involved in all these three matters are common, by consent of all the learned counsel appearing for the respective parties, all the three Civil Revision Petitions are disposed of by this common order.
5. The plaintiffs in O.S. No. 182 of 1977 filed the suit for partition and permanent injunction. By judgment and decree dated 16.09.1978, the trial Court passed a preliminary decree. Pursuant to the preliminary decree passed in O.S. No. 182 of 1977, the plaintiffs filed a final decree application in I.A. No. 307 of 2012 in O.S. No. 182 of 1977. The trial Court dismissed the final decree application by order dated 09.11.2012 finding that the preliminary decree passed in O.S. No. 182 of 1977 ought to have been amended by bringing on record all the legal representatives of the plaintiffs 1 & 2.
6. Challenging the dismissal of the final decree application in I.A. No. 307 of 2012, the plaintiffs preferred a Civil Revision Petition in C.R.P. (NPD). No. 4721 of 2012 and this Court by order dated 04.02.2013, set aside the order passed in I.A. No. 307 of 2012 and allowed the Civil Revision Petition. While setting aside the order passed in I.A. No. 307 of 2012, this Court has held that in the absence of any challenge, as regards the shares allotted to the above said parties, by defendants 6 to 26, the plaintiffs and others to whom shares have been allotted are entitled to seek for final decree for partition of their share and in which event there is no need to implead the defendants 6 to 26 in the final decree petition, when the suit has been dismissed against the defendants 6 to 26.
7. The trial Court, while granting preliminary decree, dismissed the suit as against the defendants 6 to 26. In the preliminary decree, the trial Court also allotted one-third share to the plaintiffs, the 1st defendant was allotted one-third share and the defendants 2 to 5 were allotted one-third share. The plaintiffs in O.S. No. 207 of 2013 filed the said suit stating that they came to know about the preliminary decree passed in O.S. No. 182 of 1977 dated 16.09.1978 only on 19.04.2012. Further, they have stated that the said preliminary decree was obtained by exercising fraud, as such, the preliminary decree dated 16.09.1978 is liable to be set aside.
8. The plaintiffs further stated that they came to know about the Gift Settlement Deed alleged to be executed by the defendants 26 to 29 along with their relatives in favour of the 31st defendant dated 13.12.1976 conveying an extent of 1.25 1/2 acres of suit property. Further, the plaintiffs have stated that the plaintiffs altogether are entitled to 80.46 cents in the suit schedule property. In these circumstances, the plaintiffs have filed the suit for partition and to declare the preliminary decree and judgment passed in O.S. No. 182 of 1977 as null and void and for declaration that the Gift Settlement Deed dated 13.12.1976 executed by the defendants 26 to 29 and others in favour of the 31st defendant as partially null and void upto the plaintiffs' share.
9. The revision petitioners in C.R.P. (NPD). No. 3505 of 2014 have filed an application in I.A. No. 507 of 2014
