R. Sambandam vs G. Chidambaram Pillai and others

This Civil revision petition is against the order of the learned Subordinate Judge, Mayuram, rendered in I.A. No. 1257 of 1979 on his file. The

revision petitioner was the 28th defendant in the suit O.S. 131 of 1971 out of which the said interlocutory application arose. The respondents-

plaintiffs filed a suit for division of the plaint schedule properties, except item No. 11, by metes and bounds after removal of the superstructure in

item No. 14 of the plaint schedule properties. A preliminary decree was passed in terms of a compromise petition filed by the parties who were

present. The decree directed inter alia removal of superstructure built on item 14 of the plaint schedule property. A petition was filed for

appointment of a commissioner and division of the properties in accordance with the preliminary decree. In that final decree proceedings, the 28th

defendant, who remained ex parte at the trial stage, applied in I.A. 1207 of 1979 out of which this civil revision arises for allotment of item 14 of

the suit properties to his share. His contention was that he has built a superstructure valued at Rs. 20,000 and is also running a rice mill and if the

building is demolished, he would be put to irreparable loss. The respondents-plaintiffs in their answer refuted the allegation that the value of the

building was about Rs. 20,000 and contended that the site on which the superstructure was built is a valuable properly and has to be allotted to

him after removal of the superstructure. The Subordinate Judge was of the view that the preliminary decree passed by the court has become final

and dismissed the petition. The 28th defendant challenges that order in this civil revision petition. Learned counsel, Mr. G. Subramaniam, for the

revision petitioner, contended that the claim of the revision petitioner for allotment of item 14 in the plaint schedule is only in the nature of a claim

for equity and that the question of actual allotment of the property arises only at the stage of final decree and the party who desires a particular

mode of allotment should approach only at the stage of final decree. In support, the learned counsel relied on a Full Bench decision of this Court in

Basavayya v. Gurnvayya 1951-2-M.L.J. 176=64 L.W. 669. He invited my attention to the following passage�

Even after the passing of the preliminary decree, it is open to the court to give appropriate directions regarding all or any of these matters either suo

motu or on the application of the parties. O.20, R. 18 C.P.C., does not prohibit the court from issuing such directions after the stage of a

preliminary decree. It is open to the court in order to prevent multiplicity of litigation and to do complete justice and effect an equal division of all

the common assets and properties among the parties, to direct an enquiry into the profits received or realised by one or some of them during the

pendency of the suit and to award the others their proper share of such profits under its final decree.

That was a case where the plaintiff applied in an application for an enquiry into the profits of the properties realised by the defendants subsequent

to the institution of the suit and for a final decree for his share of such profits. The defendants opposed the application on the ground that there was

no prayer in the plaint for recovery of such profits and the preliminary decree passed in the suit did not direct an enquiry into the same. It is under

these circumstances, the learned Judges held that a suit for partition by a member of a joint Hindu family is substantially a suit for an account of the

joint family properties on the date of the suit as well as all the profits received by the manager since that date, so that the profits should also be

divided and his proper share given to him and that a partition suit in which a preliminary decree has been passed is still a pending suit and the rights

of parties have to be decided on the date of final decree.

To the same effect is the ruling in C. Vasantha v. S.C. Pandia 1978-1-M.L.J. 1=91 L.W. 139. A Division Bench of this Court took the view

that even if the plaintiff, by mistake or by inadvertent omission, fails to make a prayer for future mesne profits, the courts are not powerless as to

granting the equitable relief for future mesne profits having regard to the circumstances of each case and that the court has got a discretion under

O.9. R. 12, C.P.C., when it is asked for by the plaintiff decree-holder before the termination of a lis. The plaintiff is not asking for mesne profits in

this case. It is allotment of a property on which he has built the superstructure. It must be remembered that the plaint specifically prayed for

removal of the superstructure built on item 14 by the revision petitioner herein and a decree has been passed for removing the said superstructure.

No appeal has been preferred by the revision petitioner herein and the preliminary decree has become conclusive.

In Venkata Reddi and Others Vs. Pothi Reddi, , the Supreme Court observed�

A preliminary decree passed, whether it is a mortgage suit or a partition suit is not a tentative decree but must, in so far as the matters dealt with by

it are concerned, be regarded as conclusive. No doubt, in suits which contemplate the making of two decrees, a preliminary decree and a final

decree the decree which would be executable would be the final decree. But the finality of a decree or a division does not necessarily depend upon

its being executable.

In this connection, reference can be made to S. 97 of the C.P.C., which states that where any party aggrieved by a preliminary decree passed

after the commencement of the Code does not appeal from such decree, he is precluded from disputing its correctness in any appeal that may be

preferred from the final decree. Admittedly, the 28th defendant, the revision petitioner, who remained ex parte, has not preferred any appeal

against the preliminary decree directing removal of the superstructure built on item No. 14 and allotting item No. 14 to sharers. Therefore, a

preliminary decree, unless appealed against, will be a final decision of the court passing that decree. However, Mr. Subramaniam, invited my

attention to a ruling of a Division Bench of this Court in The Associated Cement Companies Ltd. Vs. L.S. Ramakrishna Gowder, , and contended

that the rule of estoppel would prevent the plaintiffs from claiming the property to be their as by their conduct they have acquiesced in the

construction of the superstructure on item No. 14. The case referred to in the Division Bench decision is a case for possession of a property by a

trespasser. But, here the plaintiffs only seek partition of their share of the properties. If a co-sharer constructs a superstructure on a property in

which every sharer has a right, he does so at his own risk. As long as the preliminary decree has not been altered or modified or set aside, the

revision petitioner cannot, in my view, ask for allotment of item 14 in the property over which he has built the superstructure which has been

directed to be removed by the preliminary decree passed by the court. In that view, the order of the lower court is correct and has to be confirmed

and is hereby confirmed. The revision fails and is dismissed. No costs.