A.Rami Reddy v. A.Narayana Reddy

Order

By order dated 04.08.2006 in I.A.No.408 of 1993 in O.S.No.106 of 1982, the Principal Senior Civil Judge, Nandyal, directed the Commissioner appointed earlier to undertake the work specified

therein and file his report. Aggrieved thereby, the plaintiffs in the suit, the petitioners in I.A.No.408 of 1993, filed the present Civil Revision Petition. This Court, in the first instance, allowed further proceedings to go on staying only the passing of the final decree by order dated

07.06.2007. But thereafter, interim stay of all further proceedings was granted by the subsequent order dated 30.10.2007. Pertinent to note, learned counsel for the petitioners reported that Respondents 13, 16 and 29 to 33 were not necessary parties to the case and accordingly, this Court dismissed the Revision Petition against them by order dated 24.08.2007. However, Sri A.V.Krishna Kaundinya, learned counsel, entered appearance for Respondents 14, 15 and 31, though Respondent 31 ceased to be a party to this Revision Petition after it was dismissed against him. Sri R.V.Prasad, learned counsel, entered appearance for Respondents 17 to 23 and 34 to 36. Heard Sri G.Rama Sharma, learned counsel for the petitioners, Sri R.V.Prasad and Sri A.V.Krishna Kaundinya, learned counsel appearing for the contesting respondents. The facts germane to the adjudication of the Civil Revision Petition may be briefly summarized: Originally, O.S.No.285 of 1967 was filed by the petitioners herein, seeking declaration of their title, before the Principal District Munsif, Nandyal. The said suit was decreed but in appeal to this Court, the same was set aside and the petitioners were advised to institute a suit before the competent Civil Court having necessary jurisdiction. Accordingly, the petitioners filed the suit, O.S.No.106 of 1982, before the Principal Senior Civil Judge, Nandyal, for declaration of their title and recovery of possession. The suit schedule property consists of Ac.4.42 cents in Survey No.541/1 of Nandyal Municipal limits in Kurnool District. The said suit was decreed on 15.03.1993 holding that the plaintiffs and the defendants were co- owners of the entire land of Ac.8.08 cents situated in Survey No.541, Nandyal, Kurnool District and that the same has to be partitioned amongst them. This Judgment and Decree attained finality as no appeal was preferred against the same. I.A.No.408 of 1993 was filed in the suit by the petitioners/ plaintiffs under Order XXVI, Rules 3 and 14 of the Code of Civil Procedure seeking passing of the final decree pursuant to the preliminary decree dated 15.03.1993. Contesting respondents in the I.A. filed their counters asserting their possession and enjoyment over stipulated extents in the area admeasuring Ac.3.66 cents, claiming that the same were sold to them/inherited by them. An Advocate Commissioner was appointed in the first instance for effecting the partition and division of the properties amongst the various parties. He filed his report on 25.01.1995 along with the plans, Exs.C.1 to C.4. Objections were filed by the parties to this report. After considering the same, the trial Court passed the final decree on 27.11.2000 allotting Ac.4.42 cents to the petitioners/plaintiffs. Aggrieved thereby, an appeal in A.S.No.8 of 2001 was filed before the II Additional District Judge, Kurnool. The appellate Court set aside the final decree on 04.07.2001 and remanded the matter to the trial Court for fresh disposal. It is a matter of record that upon remand, the petitioners/ plaintiffs examined one witness and the respondents examined two witnesses but no documentary evidence was adduced by either side. It appears that both parties filed the joint memo dated 31.10.2005 stating that there was no need for redirecting the Commissioner to undertake any further inspection. The trial Court took note of the fact that the petitioners asserted a claim in respect of a specified extent in Survey No.541/1, Nandyal, but the same was not taken into consideration at the time the suit was decreed, as the Judgment speaks of the entire extent of Ac.8.08 cents in SurveyNo.541, without reference to the sub-division as survey Nos.541/1 and 541/2. The trial Court also took note of the observations made by the appellate Court about the Commissioner’s report and more specifically, the defects contained therein, while setting aside the final decree passed earlier. The trial Court therefore opined that the said Commissioner’s report had no value or sanctity. It is also to be noticed that the appellate Court while remanding the matter for fresh consideration to the trial Court stated as follows: “In the result, the matter is remanded to the lower Court for fresh disposal according to law, directing the lower Court to receive necessary evidence, both oral and documentary, of the appellants or purchasers of part of the property who are in possession, in support of their claim. If the lower Court found that they are bona fide purchasers for valuable consideration from their respective vendors, it shall allot particular piece of property to the share of their vendors and work out their equities. In case the property to be allotted to one of the vendors is in excess of his share, the Court may direct the party to pay compensation in lieu of allotment of higher share than what he is entitled to, to the person to whom lesser share was allotted than what he is entitled to.” Therefore, being conscious of its obligation to work out equities amongst the parties, the trial Court was of the opinion that to give effect to the directions of the appellate Court, extracted hereinabove, it was necessary to redirect the Commissioner appointed earlier to ascertain the names of the vendors of the parties who were in actual possession of the properties, to allot respective shares to them, to ascertain whether the vendors of such parties were in possession in excess of their shares and if so, the necessity of directing them to pay owelty money or compensation. Accordingly, an order was passed and the Commissioner was directed to submit his report within fifteen days. Sri G.Rama Sharma, learned counsel, contended that the aforestated order of the trial Court is unsustainable in law and on facts. He pointed out that the parties had filed a joint memo on 31.10.2005 specifically praying that no further inspection should be entrusted to the Commissioner. In spite of the same, the trial Court had directed so. It is his case that the earlier report dated 25.01.1995 submitted by the Commissioner answered all the queries which were now sought to be re-examined, which was wholly unnecessary and uncalled for. The learned counsel submitted that by doing so, the trial Court was practically reopening the preliminary decree. Per contra, Sri R.V.Prasad and Sri A.V.Krishna Kaundinya, learned counsel, submitted that merely because a joint memo had been filed, it did not curtail the right or power of the trial Court to undertake whatever steps it felt were necessary to carry out the directions of the appellate Court while remanding the matter. The learned counsel submitted that to work out the equities as directed by the appellate Court, it was essential for the trial Court to ascertain the facts which it sought to do by way of the order under challenge. They further submitted that in the light of the observations made by the appellate Court about the first report submitted by the Commissioner, no reliance could be placed on the same. Sri G.Rama Sharma, learned counsel, placed reliance on the Judgments in KAUSHALAYA DEVI v. BAIJNATH SAYAL[1]; MOOL CHAND v. DY.DIRECTOR, CONSOLIDATION[2]; VENKATRAO ANANTDEO JOSHI v. MALATIBAI[3] and MANGAL PRASAD TAMOLI v. NARVEDSHWAR MISHRA[4]. These Judgments lay down the ratio that in the absence of an appeal against a preliminary decree under Section 97 of the Code of Civil Procedure, no objections could be raised against such decree thereafter. The issue presently is whether the order of the trial Court had the effect of reopening the preliminary decree dated 15.03.1993 in O.S.No.106 of 1982. It may be noticed that the preliminary decree dated 15.03.1993 in O.S.No.106 of 1982 specifically gave liberty to the defendants in the suit to work out their equities at the time of passing of the final decree. This was reaffirmed in appeal in A.S.No.8 of 2001. Therefore, it cannot be said by any stretch of imagination that the exercise undertaken by the trial Court by way of the order under challenge has the effect of reopening the preliminary decree dated 15.03.1993. It is no doubt true that the Commissioner’s report dated 25.01.1995 does mention the names of some of the owners of the constructions in the suit land. However, in the light of the observations made against this report by the appellate court, which have attained finality, the finding of the trial Court that no reliance could be placed thereupon is unassailable. To work out the equities amongst the parties, it is essential for the trial Court to know the full facts as obtaining presently. Though Sri G.Rama Sharma, learned counsel, stated that there is no change in the status since the earlier Commissioner’s report, it is to be noted that more than 15 years have elapsed after the filing of the said report and it would be necessary for the trial Court to ascertain the present ground situation before exercising equitable jurisdiction. As pointed out by a Full Bench of this Court in BHASKARUNI VENKATA SUBBAYYA v. NENE SRIRANGAM[5], a purchaser of an interest in joint property is entitled to ask the Court to grant him equitable relief by allotting the property purchased by him or as much of it as possible to the share of his vendor and if the same can be done without prejudice to the rights of the other joint owners, the Court must do so. The present exercise undertaken by the trial Court through the order under challenge is in furtherance of this objective. The order dated 04.08.2006 in I.A.No.408 of 1993 in O.S.No.106 of 1982 passed by the Principal Senior Civil Judge, Nandyal, therefore does not call for any interference and is accordingly confirmed. The Civil Revision Petition is dismissed but in the circumstances of the case, without any order as to costs. In consequence, the interim stay dated 30.10.2007 stands vacated. ____________________ SANJAY KUMAR, J. __________ JULY, 2010. VGSR