Rahmat Bee and Others vs Maqbool Banu and Another

Amareswari, J.—This Civil Revision Petition is filed against the order of the learned Subordinate Judge, Adoni, Kurnool District in I.A. No.328 of 1983 in O.S.No.8 of 1961.

The suit was filed by the sole plaintiff for partition of the pliant schedule properties and for separate possession of her 1/3 share. The trial Court decreed the suit after overruling the objections of the defendants and passed a preliminary decree. The defendants carried the matter in appeal. By Judgment dated 26.9.1967 the Appellate Court modified the decree and declared the shares of the plaintiffs as well as the defendants. The plaintiff was held to be entitled to 64/3 84th share. Similarly the share of each of the defendants were specified. The present petitioner who is the 10th defendant in the suit was given 4/3 8th share in ''B'' schedule business and in the properties of the ''C and ''F'' schedules other than the properties of ''C'' in Ex. B.25 and Ex. B.26 of ''F'' schedule. The 10th defendant thereafter filed I. A.No.328 of 1983 for appointing a Commissioner to divide the properties and allot his share as per the decree.

The petition was resisted by the Legal Representatives of Defendant No. 1 that such a petition is not maintainable in as much as there was no direction in the preliminary decree about the allotment and separate possession of the defendants.

The trial Court rejected the plea of the first defendant and allowed the petition and appointed a Commissioner to divide the properties by meters and bounds and for allotment of 4/38th share as specified in the preliminary decree. Aggrieved thereby, the Legal Representative of the 1st defendant have preferred this revision.

When the matter came up before our learned brother Ramaswamy, J., it was argued that the petition was not maintainable. The learned Counsel relied upon a decision of the Single Judge of this Court in Rangayya Naidu K. Venkataswami Naidu 1986 (1) A.P.L.J. 272 in support of his contention that in the absence of a direction in the preliminary decree regarding allotment and separate possession in favour of the defendants, the petition is not maintainable unless and until the defendants get the preliminary decree modified. The learned single Judge was not inclined to agree with this view and referred it to the Division Bench as otherwise it would lead to conflict of Judicial opinion.

In order to appreciate the controversy, it is necessary to refer to Order 20 Rule 18 and Order 26 Rule 13 of Civil Procedure Code. Order 20 Rule 18 is as follows:

"Where the Court passes a decree for the partition of property or for the separate possession of a share therein, then,

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if and in so far as such decree relates to any other immovable property or to movable property, the Court may, if the partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree declaring the rights of the several parties interested in the property and giving such further directions as may be required."

From the aforementioned provision, it is seen that the preliminary decree can specify not only the share of the plaintiff, but also the shares of all the parties interested in the property and it also enables the Court which passes the decree to give such further directions as may be required.

Order 26 Rule 13 enables the Court which passes the preliminary decree to appoint a Commissioner to make the partition according to the rights as declared in such decree. Where the rights of the parties are declared in the preliminary decree a Commissioner can be appointed to partition the properties as per the rights declared in the decree. In the instant case, the preliminary decree is no unmistaken terms specified the rights of the plaintiff as well as each of the defendant. No doubt the preliminary decrees does not say that the defendant should be put in possession of their shares, but that in our opinion does not make any difference. When once the shares are specified in the preliminary decree, it is open to the defendants to have a Commissioner appointed for allotment and separate possession of the properties as per the preliminary decree. In such a case, it is not necessary to get the preliminary decree modified. It is true that any number to final decrees can be passed. But in this case, it is not necessary as the rights of each of the parties have been specified in the preliminary decree.

We will not refer to some decisions relevant ion the point.

9.In Bittan Devi v. Rudra Sen AIR 1966, Allahabad, Page 601 it was held:

"It is true that the Courts of law generally lay down in the preliminary decree the plaintiffs'' share or rights in the property, but where the defendants desire that their share or interest be also declared, the preliminary decree! should contain such a declaration also. If, for some reason, the defendants'' rights have not been declared in the preliminary decree, the aggrieved party can challenge the decree in an appeal or can apply for review. One thing is clear that after the passing of the preliminary decree also, the defendants can apply for and have their share partitioned on payment of court-fee etc., as may be necessary under the law.

The Courts of law cannot go behind the decree and have to take further steps on the basis of the decree already passed. Consequently if the preliminary decree passed in a partition suit does not contain any declaration as to the rights of the defendants, their application fro the partition or separation of their share shall not be maintainable till they have the preliminary decree suitably modified, but once the preliminary decree contains a declaration as to the defendants'' share they can, even after the passing of the preliminary decree take steps For the separation of their share."

In Lachmi Narayan Marwary v. Balmakunda Marwary AIR 1924, P.C. 198, the Privy Council held that it was the plaintiff who ordinarily moves the court to initiate the supplementary proceedings after the passing of a decree, but there was not legal bar to any party to the suit taking such steps provided that his rights and interest had also been declared under the decree.

In Sarbeswar v. Bibhabasu, AIR 1977, Cal 288 a Division of the Calcutta High Court observed:

"Under the provisions of Order 20 Rule 18 sub-rule(2) the Court though may pass a preliminary decree declaring the rights of the several parties in the suit property in a partition suit but generally the court declares the rights of the plaintiff and of those defendants who contest in the suit and desire their rights to be so declared. The rights and share of the defendants being not declared in the preliminary decree, the Commissioner is not competent to partition and make separate allotment of the share in respect of the property-in-suit in favour of the petitioners unless the said preliminary decreed is modified declaring the right and share of the petitioners either on appeal or on review of the said preliminary decree."

The Calcutta High Court approved the ratio of the decision in Bittan Devi v. Rudra Senha AIR 1966, All 601.

A Single Judge of the Madras High Court in S.V. Muthu and Others Vs. Veerammal and Another, observed:

"If the preliminary decree already passed does not contain any declaration as to the rights of the defendants their application for partition or separation of their share shall not be maintainable till they have the preliminary decree suitably modified. But when once the preliminary decree contains a declaration as to the defendant''s share they can even after passing of the preliminary decree take steps for the actual separation of their share."

The learned Counsel for the petitioners draws our attention to a decision of a Single Judge of this Court in K. Rangayya Naidu v. K. Venkata Swamy Naidu 1986(1) A.P.L.J. 272 in which it is held that in the absence of a specific direction in the preliminary decree that the shares of defendants 1 and 2 shall also be separated, the petition is not maintainable till the decree is modified. We are unable to agree with view.

In a partition suit, every party is in the position of a plaintiff and whereas preliminary decree specifies the share and rights of the plaintiffs as well as the defendants, the defendants can file an application after the passing of the preliminary decree to get their shares separated as per the decree and it is not necessary to get the decree modified. In fact, there is nothing to be modified since the shares are already specified. Multiplicity of proceedings have to be avoided. The defendants would be entitled to have a final decree passed in accordance with the preliminary decree.

The Civil Revision Petition is accordingly dismissed. No costs. C.M.P.No.606 of 1989.

This is a partition to implead the 6th defendant in the suit as respondent No.2 in this revision. The share of the 6th defendant is also specified in the preliminary decree in the suit. Hence there cannot be any objection for impleading this respondent. Petition to implead is ordered. The 6th defendant may also file an application that she may be put in possession of her share as per the preliminary decree and the Court shall pass orders accordingly.