Late R. Satya Bai and Another vs Rachakonda Venkat Rao and Others

Ramesh Madhav Bapat, J.—One late R. Satya Bai, wife of Rachakonda Ramgopal Rao, filed O.S. No. 4 of 1975 in the Court of the District Judge, Adilabad. The suit was filed for partition and separate possession against 13 defendants. During the pendency of the suit, there was a compromise between the plaintiffs and the defendants and a preliminary decree for partition in terms of compromise came to be passed on 13-7-1978 and the property as described in Schedule-I was allotted in the shares of the plaintiffs. Three items were kept jointly. Thereafter, the original plaintiff No. 1 i.e., (late) Satya Bai died. Her legal representative filed I.A. No.1268/91 for appointment of Court Commissioner for dividing the property by metes and bounds and putting the second plaintiff in possession of her share.

On presentation the application for final decree, notice was issued to all the defendants. The claim of the second plaintiff was resisted by the 1st defendant alone. The first defendant-1st respondent herein filed counter and stated that after passing of the final decree, the decree was modified by oral agreement. It was further contended by him that the decree was modified by oral agreement in 1985. But it stands superseded by one agreement dated 5-7-1992 and therefore submitted that nothing has to be done in execution of a decree and therefore LA. No. 1268 of 1991 in O.S. No. 4 of 1975 be dismissed.

The question posed before this Court whether the application filed under Order 26 Rules 13 and 14 read with Section 151 C.P.C. for appointment of Court Commissioner to divide the joint property by metes and bounds and to allot separate shares as per the preliminary decree dated 13-7-1978 is maintainable or not?

The contention raised by the first defendant i.e., the 1st respondent herein, in his counter was that there was an oral agreement in the year 1985. Since the 2nd plaintiff could not manage the properties allotted to her under items 1 to 5, which are agricultural lands, she was given the entire house No. 25-11 situated at Mancherial which is item No. 6 of Schedule-I. It is further averred that she was put in possession of the property and thereafter she was continuing in possession. The 1st respondent further contended that in the year 1992 there was a fresh agreement by superseding the agreement of 1985 and they proposed to file an application for final decree in terms of the agreement dated 5-7-1992.

In support of their case, the respondents herein examined R.Ws. 1 to 5. The learned District Judge on consideration of the evidence held that since the agreement dated 5-7-1992 is brought into existence after filing I.A. No. 1268 of 1991 for appointment of Commissioner cannot be taken into consideration. Relying upon the evidence of R.Ws.1 to 5, he held that there was an agreement in the year 1985 under which the entire property mentioned in item No. 6 of Schedule-I properties were given to the 2nd petitioner herein and therefore it is not necessary to appoint a Commissioner as the parties have settled the matter by 1985 agreement and thus the application for final decree came to be dismissed. Against the said order, the present revision has been filed.

It appears from the record that this revision came up for hearing before the learned Single Judge of this Court. The learned Single Judge on hearing the matter on merits allowed the revision with costs.

It further appears from the record that the respondents herein carried the matter to the Hon''ble Supreme Court by filing Civil Appeal No. 207 of 1996 arising out of SLP (Civil) No. 7181 of 1995. The Hon''ble Supreme Court remanded the matter for the grounds stated in the order and thus the present Civil Revision Petition has come up before this Court for re-hearing the matter.

The learned counsel Mr. T. Veerabhadrayya appearing on behalf of the revision petitioners submitted that the learned District Judge erroneously dismissed the application filed by the plaintiffs-petitioners herein. The learned Counsel further submitted that the so-called oral agreement of 1985 was not reduced into writing. No witness except the first respondent speaks about 1985 agreement and the finding of the learned District Judge that there was oral agreement of 1985 is based upon no evidence.

The learned counsel for the petitioners herein appears to have argued before the learned Single Judge of this Court that under Order 23 Rule 3 C.P.C. after the amendment any agreement after passing of the preliminary decree should be in writing. In the absence of it, it is not open to the Court to act upon it. However, I am not inclined to accept the aforesaid position. By virtue of Clause (s) in Sub-section (2) of Section 97 C.P.C. (Amendment) Act, 1976, the amendment effected in Order 23 Rule 3 C.P.C. has no application to the pending suits and proceedings. Thus, it can be stated that even the oral agreement could be relied upon in the present case.

Now the point arises for consideration of this Court whether the oral agreement is proved by the defendants-respondents herein?

I have gone through the entire evidence as led by the respondents herein. It is pertinent to note that though initially there were 13 defendants, the present application for passing of final decree was resisted by only one defendant i.e., the 1st respondent herein. The 2nd plaintiff-2nd petitioner herein also denies the oral agreement which was entered into in the year 1985. Except the oral agreement as pleaded and spoken to by the first respondent herein, there is no cogent evidence to establish the oral agreement of 1985 by the first respondent herein.

It further appears that the first respondent herein has taken a stand that though there was an oral agreement in the year 1985, it stands superseded by an agreement of 1992 and therefore nothing remains to be done in this matter. In effect, both the parties say that the agreement of 1985 does not exist as on today.

It is not in dispute that the agreement which is alleged to have been entered into between the parties in 1992 was reduced to writing. A xerox copy of the so-called agreement appears to have been produced in the Executing Court which is signed by only three parties. The 2nd petitioner herein comes with a plea that her signature on the document of 1992 is a forged one and therefore the learned Counsel for the 2nd petitioner herein submitted that the so-called agreement of 1992 cannot be relied upon. It is true that from the record it reveals that the 2nd petitioner herein has not entered into the box to rebut the evidence of 1st respondent herein. She has only pleaded that her signature was forged and therefore one might think that the contention raised by the 1st respondent herein is true. But that is not the correct position on facts. The so-called agreement of 1992 as stated above is signed by only three respondents and not by the other respondents herein. Even if it is held that the contention raised by the 2nd petitioner herein is to the effect that her signature was forged is not correct, then there is no reason for the other respondents herein for not signing the agreement of 1992. If the document of 1992 is to be held as a genuine document, then it must bear the signature of all the parties concerned. Then it can only be called as a legal and valid document and not otherwise. The said document is not properly stamped and registered. In that circumstance also the admissibility of the agreement of 1992 becomes doubtful.

One more legal position emerges out of the aforesaid litigation. It is not in dispute that the preliminary decree was passed by consent. The 2nd petitioner herein applied for final decree and there is no evidence to show that the decree was modified by the consent of the parties and the modified terms are included in the preliminary decree. According to the version of 1st respondent herein, the decree stands satisfied and nothing is remained to be done in this matter also cannot be accepted because of the fact that there is no evidence to show that the application under Order 21 Rule 2 C.P.C. for recording the satisfaction of the decree was filed by the first respondent herein at any point of time.

Under these circumstances, this Court holds that the contention put forward by the 1st respondent herein that there was an oral agreement in the year 1985 and subsequently it was modified by writing an agreement of 1992 cannot be accepted. Hence, this Court holds that the learned Judge erred in dismissing the application of the decree-holder-2nd petitioner herein seeking to pass the final decree in this matter.

Thus, the Revision filed by the 2nd petitioner herein stands allowed by setting aside the order of dismissal passed in I.A. No. 1268 of 1991 in O.S. No. 4 of 1975 by the learned District Judge, Adilabad. Hence I.A. No. 1268 of 1991 stands allowed and the learned District Judge is directed to proceed with the final decree application and pass appropriate orders according to law. No. Costs.