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ANDHRA PRADESH HIGH COURT
T. Sunil Chowdary, J.
Neelam Chittemma and others —Petitioners
versus
Tirlangi Appa Rao and Others —Respondents
Second Appeal No. 290 of 2005
Decided on 13.03.2014
IMPORTANT POINT
A final decree if not in consonance with preliminary decree it would dehors the provisions of Order 20, Rule 18 CPC and would be illegal.
Headnote:Civil Procedure Code 1908—Order 20, Rule 18—Partition suit- final decree not in consonance with preliminary decree—Conflict between the Order passing preliminary decree and the order of final decree by the trial Court—Preliminary decree drafted for division of property into two equal shares and for putting the plaintiff in possession of one of such shares and for working out equities in favour of second respondent, alienee regarding item No. 1—Alienee of respondent No. 3 and 4 not held entitled to claim equities—The court passing final decree holding respondent No. 7 to 11, L.Rs of respondent no. 2 alienee, held entitled to item No. 1 and the petitioner/plaintiff to part of item No. 2—Held the trial Court passed final decree de hors the provision of order 20 Rule 18—The final decree passed by the appellate Court set aside—Case remitted to trail Court to pass final decree afresh.
Facts of the case
Suit filed by son against his father, respondent no. 1 for partition of items no. 1 and 2 into two equal shares and for allotment of one share to him. Father had sold item no. 1 to respondent no. 2 and item no. 2 was sold to respondent no. 3 and 4. The trial court dismissed the suit but the first appellate court accepted the appeal and passed preliminary decree. As a result the petitioner was entitled to half of the suit properties and for future properties. In the proceeding for final decree, the court appointed Commissioner and the Commissioner measured the property and submitted his report. The Trial Court accordingly divided the property into two equal shares by allotting item-1 to the respondent Nos. 7 to 11 with a direction to them to pay half of the market value of item-1 to the petitioner. As regards item-2, it was sub-divided into part-I and Part-II and the petitioner is allotted half share described as Part-II in item-2 of suit schedule property. The petitioner permitted to file separate petition for awarding future profits which is the subject matter of S.A. No. 305 of 2005. Accordingly, final decree to be engrossed on deposit of required stamp papers. Aggrieved by the final decree proceedings, the respondent Nos. 7 and 9 to 11 filed A.S. No. 45 of 2002.
Findings of the court
In a suit for partition the court determines and declares the rights of the parties while passing the preliminary decree. The shares of the parties to the suit will be worked out in the final decree proceedings. It is settled principle of law that a preliminary decree merely determined the rights of the party and in the final decree the court has to divide the property by meets and bounds. The function of the final decree is to apply what preliminary decree is ordered. The trial court passed the final decree completely dehors the Order 20, Rule 18 C.P.C. Therefore, the order passed in the final decree set aside and case remanded directing the trial court to pass final decree afresh in terms of preliminary decree.
Result: Appeal allowed.
T. Sunil Chowdary, J.—This second appeal is preferred by the respondent Nos.7 and 9 to 11 challenging the decree and judgment dated 03.09.2004 passed in A.S.No.45 of 2002 on the file of the I Additional District Judge, West Godavari, Eluru, confirming the final decree and order dated 30.04.2001 passed in I.A.No.2754 of 1994 in O.S.No.475 of 1981 on the file of the Principal Junior Civil Judge, Eluru. The parties are hereinafter referred to as they are arrayed in the final decree proceedings, for the sake of convenience.
2. The case of the petitioner in I.A.No.2754 of 1994 filed for grant of final decree is as follows. He filed O.S.No.475 of 1981 against respondent Nos.1 to 4 for partition of the suit schedule property into two equal shares and allotment of one such share to him and for future profits. The first respondent is his father; second respondent is the purchaser of item No.1 and respondent Nos. 3 and 4 are the purchasers of item No.2 of the suit schedule property. The suit was dismissed on 07.07.1983. Aggrieved thereby, the petitioner preferred A.S.No.109 of 1983 on the file of the Additional District Judge, Eluru. The appeal was allowed by decree and judgment dated 19.08.1986 and consequently the suit was decreed. Being not satisfied with the decree and judgment in A.S.No.109 of 1983, the second respondent preferred S.A.No.86 of 1987 whereas one P. Appalanarasamma, who is alienee of respondent Nos.3 & 4, preferred S.A.No.119 of 1987. During the pendency of those two second appeals, first respondent/first defendant died and respondent Nos.5 and 6 were brought on record as his legal representatives. Both the second appeals were dismissed by common judgment dated 18.02.1994. Thereby the preliminary decree granted in the suit filed by the petitioner for partition of Items 1 and 2 of suit schedule properties was affirmed. As a result, the petitioner is entitled to half of suit schedule properties and for future profits. The petitioner filed I.A.No.2754 of 1994 to appoint a Commissioner for partition of suit schedule properties into two equal shares, delivery of one such share to him and for passing final decree in terms of preliminary decree.
3. The second respondent filed counter inter alia contending that he purchased item-1 of suit schedule properties under registered sale deed dated 11.09.1955 for a valuable consideration of Rs. 300/- from the first respondent and ever since, he has been in exclusive possession and enjoyment of the same by constructing a pucca house therein. The petitioner filed the suit in collusion with his father i.e., the first respondent to cause loss to the second respondent. Bona fides of second respondent in purchasing the item-1 of suit schedule property were upheld by the Court. In A.S.No.109 of 1983, the first appellate court while granting preliminary decree categorically mentioned to allot item-1 of suit schedule properties to the first respondent by working out equities. By the time of sale of item-1 in his favour, it is vacant site and of no value, and item-2 is house property and of more valuable. In view of the preliminary decree and as item-1 is indivisible, it may be allotted to the share of deceased of first respondent. The existing structures on item-1 were constructed by the second respondent. The petitioner is not entitled to make any claim against the second respondent. Hence the petition is liable to be dismissed.
4. After death of second respondent, respondent Nos.7 to 11 were brought on record as his legal representatives. Respondent Nos.7 and 9 to 11 filed memo adopting the counter filed by the second respondent.
5. The respondent No.5 filed counter affidavit, which was adopted by respondent No.6, inter alia contending that himself and respondent No.6 were brought on record as legal representatives of first respondent/first defendant in the High Court. The respondent No.5 aggrieved by the ex parte orders of the Hon’ble High Court in S.A.No.119 of 1987 and S.A
