Prema Sundar vs C. Shivashankar and Others

B.S. Patil, J—This appeal is filed challenging the order dated 26.11.2012 passed by the Court below in C. Misc. No. 25068/2012 filed under Order 47 Rule 1 of CPC seeking review of the judgment and decree passed in O.S. No. 26088/2007.

Petitioner herein was respondent No. 1 in the review petition filed before the Addl. City Civil Judge, Mayohall, Bengaluru. The said review petition was filed by defendants 8 and 9 in the suit praying for passing a final decree by modifying the judgment and decree passed on 09.11.2011. The grievance made by the review petitioners was that instead of passing final decree in terms of the memo filed by the review petitioners/defendants 8 and 9, trial Court had passed a preliminary decree.

Suit O.S. No. 26088/2007 was filed by the present petitioner - Smt. Prema Sundar, W/o. Sunder P. praying for partition and separate possession of her 1/6th share in the suit schedule property contending inter alia that the property belonged to her father Sri. A.K. Devaraj; the said Sri. A.K. Devaraj acquired the schedule property as per sale deed dated 31.03.1933; A.K. Devaraj and his wife Smt. Annapurnamma died leaving behind the plaintiff and defendants 1 to 7 as their heirs; plaintiff and defendants 1 to 7 jointly succeeded to the suit schedule property; A.K. Devaraj had executed a Will on 22.10.1976 bequeathing the schedule property creating a life interest in favour of his wife making it clear that upon her death the property shall go to all the daughters equally; as a result, after the death of Smt. Annapurnamma all the daughters jointly succeeded to the suit schedule property.

Plaintiff also contended that in her portion of the property she was living, but defendants 8 and 9 being strangers to suit schedule property tried to trespass into the property denying the title of plaintiff, therefore, she filed the suit for partition of her 1/6th share in the property.

Defendants 1 to 7 resisted the suit. They admitted the relationship between the parties but, contended specifically that plaintiff and defendants 1 to 7 had decided to alienate the suit schedule property in favour of defendants 8 and 9 and an agreement of sale dated 25.08.1997 was executed in favour of defendant No. 9. Both plaintiff and late Smt. Annapurnamma had signed the said agreement of sale by receiving consideration amount but later on plaintiff refused to execute the sale deed and struck off her signature in the original sale agreement. It was contended that plaintiff had filed a false and frivolous suit against the defendants. Defendants 1 to 7 admitted that they have sold the suit schedule property to defendants 8 and 9 and therefore, sought for dismissal of the suit.

Defendants 8 and 9 filed separate written statement contending that they purchased the schedule property from defendants 1 to 7 through registered sale deed dated 14.02.2005. They also reiterated the contentions urged in the written statement by defendants 1 to 7.

On the basis of the pleadings, trial Court framed necessary issues regarding the entitlement of plaintiff''s 1/6th share. An issue was also framed as to whether there was already a partition in respect of the suit property and whether defendants 8 and 9 proved that plaintiff had released her undivided share through the registered deed.

Trial Court has held that though defendants 8 and 9 had contended that there was partition in respect of suit property and that plaintiff had released her undivided share through registered release deed, in order to prove the same, no material had been produced and therefore, the said assertions made by defendants could not be said to have been proved. The Court below found that plaintiff established that she had 1/6th share in the suit schedule property. It is relevant to notice that during the pendency of the suit a memo had been filed by defendants 8 and 9 enclosing a copy of sale deed executed in favour of defendant No. 8 and copy of khatha extract standing in the name of plaintiff in respect of a portion of suit schedule property. Defendant No. 8 had purchased a portion of suit property measuring East to West 33.4 ft. x 25 feet from defendants 1 to 7 through a sale deed dated 14.02.2005. It was also stated inn the memo that the plaintiff was in possession of 1/6th share in suit schedule property measuring East to West 6.8 feet and North to South 25 feet, therefore, it was urged that plaintiff who had got the khatha effected in her name in respect of the said portion, was in exclusive possession of her 1/6th share in suit property and hence, final decree could be drawn.

The trial Court did not pass any order on this memo. It proceeded to decree the suit granting 1/6th share in the suit property to the plaintiff by passing a preliminary decree. Therefore, defendants 8 and 9 filed review petition under Order 47 Rule 1 contending inter alia that instead of passing a final decree by considering the contents of memo, trial Court has erroneously passed the preliminary decree.

This review petition was contested by the plaintiff contending inter alia that final decree had to be passed demarcating the share of property to which she would be entitle after providing opportunity in accordance with law and therefore, review petition was not maintainable.

Trial Court has allowed the review petition solely on the ground that as the memo filed by defendants 8 and 9 had not been taken note of and as there was an error committed in not considering the memo, preliminary decree passed deserved to be reviewed and final decree was required to be passed as plaintiff was already in possession of 1/6th share as evident from the khatha recorded in her name in respect of portion of suit schedule property. Aggrieved by this order present appeal is filed.

I have heard the learned counsel for both parties.

Sri. Vivek Reddy, learned Senior Counsel for appellant contends that the entire procedure adopted and the order passed by the Court below is contrary to provisions contained under Order 47 Rule 4(2)(b) of Code of Civil Procedure. He also points out that as appellant herein/plaintiff was not a party to the memo filed and as at no stage of proceedings in the trial Court she had conceded that she was in possession of her 1/6th share of suit property, there was no justification for the Court below to review the judgment and direct passing of a final decree.

Sri. Papi Reddy, learned counsel appearing for respondents supports the order passed by Court below. He also points out that even during the pendency of appeal the property in possession of plaintiff was got measured by appointing a Court Commissioner and as per the said report it is evident that she has been in possession of 1/6th share of the property.

Upon hearing both counsel for parties and on consideration of entire materials on record, I find that the memo filed before trial Court was only by defendants 8 and 9. Plaintiff had not accepted at any stage of the proceedings that she was already in possession of her 1/6th share, to which plaintiff would be entitled by way of partition to be effected at the time of final decree proceedings.

Indeed, the trial Court while passing the preliminary decree has recorded categorical finding that though defendants 8 and 9 had contended that there was a partition in respect of suit property and that plaintiff released her undivided share through a registered deed, no material has been placed to prove the same and therefore, in the absence of such material and in the wake of memo filed by defendants 8 and 9, it was clear that plaintiff had 1/6th share in the suit property to which she was entitled.

In the face of such finding, trial Court could not have reviewed the judgment on the ground that memo filed by defendants 8 and 9 had not been taken note of. The approach adopted by the Court below is illegal. In any event, as rightly contended by the learned Senior Counsel, in terms of Order 47 Rule 4(2)(b) the application filed for review shall not be granted on the ground of discovery of new matter or evidence which the applicant alleges was not within his knowledge or could not be produced by him when the decree or order made without strict proof of such allegation. In the instant case, the Court below proceeds on the basis of a memo which was, no doubt, filed during the course of trial, but the documents enclosed to the said memo had not been marked in evidence. One of the documents produced is khatha showing the name of plaintiff as khathedar in respect of portion of suit property. Whether the said khatha reflects the possession and ownership over 1/6tth share of property and if so, which portion of said 1/6th share had been recorded in the name of plaintiff, were all matters that were required to be proved. Therefore, neither the memo nor the documents enclosed thereto which were not brought on record in accordance with law as evidence during the course of trial, could have been made basis for reviewing the judgment and the preliminary decree passed. All these matters could have been examined only during the course of final decree proceedings. Hence, I find that order under challenge suffers from illegality and perversity requiring interference by this Court in exercise of the appellate jurisdiction.

Appeal is therefore allowed. Impugned order/judgment is set aside. Misc. Petition No. 25068/2012 is dismissed. It is made clear that contentions urged by both parties are kept open to be agitated during the final decree proceedings. Since this is an old matter, if the final decree proceedings are initiated the trial Court shall expedite the disposal of the case.