THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY
CIVIL REVISION PETITION No. 2151 OF 2014 Dated:19-09-2014 Between:
N. Amarnath
... PETITIONER
AND
M. Ravinder and 11 others
.. RESPONDENTS
THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY CIVIL REVISION PETITION No. 2151 OF 2014 ORDER:
This revision is filed against the order dated 01-05-2014 passed by the Court of III Senior Civil Judge, City Civil Court, Secunderabad in I.A No. 132 of 2014 in O.S No. 119 of 2001.
The suit was filed for the relief of partition and separate possession of the suit schedule properties. Basically, the division was between three brothers and three sisters. A preliminary decree was passed allotting 9/48th share to each of the brothers and 1/48th share to each of the sisters. The preliminary decree assumed finality, with the dismissal of the appeal filed against it. The 1st respondent filed I.A No. 132 of 2014 under Order XXV Rule 13 read with Section 151 CPC, with a prayer to appoint an Advocate-Commissioner, to divide the suit schedule property.
The I.A was opposed by the petitioner who figured as defendant No.8. According to him, after the preliminary decree was passed, a Memorandum of Understanding (MOU) was arrived at between the parties whereunder he agreed to take the shares of others by paying a sum of Rs.2,10,00,000/- and a sum of Rs.10,00,000/- is already paid, therefore, the final decree proceedings cannot take place in view of the changed circumstances.
The trial Court did not agree with the petitioner and dismissed the I.A against respondent Nos.2 to 12 herein.
Sri B. Vijaysen Reddy, learned counsel for the petitioner submits that as the 1st respondent and others have entered into MOU with the petitioner, the trial Court ought to have taken the same into account. He contends that in the changed scenario, on account of the MOU, the appointment of Advocate-Commissioner to divide the property cannot be countenanced. He further submits that even otherwise, the trial Court ought to have ensured the presence of all the parties and there was no basis for passing the order under revision by setting almost all the respondents, ex parte.
Sri D. Hanumantha Rao, learned counsel for the 1st respondent, on the other hand, submits that once a preliminary decree has been confirmed by an appellate Court, the only course open to the parties is to take steps for final decree. He contends that the so called MOU was not signed even by the petitioner and it cannot be an impediment for determining the shares, in accordance with the preliminary decree.
It is not in dispute that a preliminary decree passed in the suit has been confirmed in the appeal. The 1st respondent filed the I.A for appointment of an Advocate-Commissioner to divide the properties, in accordance with the preliminary decree. The petitioner alone contested the I.A, on the basis of MOU. The trial Court ought to have ensured that all other parties are present before it. The determination of the shares by the Commissioner in the absence of other parties would lead to several complications. Another important aspect is that the Commissioner was appointed for the limited purpose of allotting share to the 1st respondent and no mention is made about the shares of others. Such a step is opposed to the very concept of partition. The allotment should be comprehensive in nature, and for all the parties as directed under the preliminary decree.
So far as the contention of the petitioner, based upon MOU is concerned, that cannot be a ground to refuse appointment of Advocate-Commissioner. There are at least two reasons for that. The first is that the preliminary decree was not modified on the basis of the so-called MOU. Secondly, it is only after the properties are allotted to the respective sharers in accordance with the preliminary decree, that a party who acquired or derived the rights vis-à-vis the property, allotted to others can put forward its claim, at the stage of delivery of possession. Much would depend upon the nature of arrangement and proof thereof. In the final decree proceedings, even a third party can put forward its claim if it is otherwise tenable in law. That however would be possible only after the properties are divided into respective shares. The claims of third parties or the parties to the suit, can be considered at the stage of delivery of possession.
Hence, the C.R.P is allowed on the ground that respondent Nos.2 to 12 were set ex parte and the direction issued to the Commissioner is inadequate. The trial Court shall hear the matter afresh by putting the respondents on notice, if necessary, by requiring the 1st respondent to take steps in that regard. The appointment of the Advocate-Commissioner shall be for dividing the properties strictly in accordance with the preliminary decree and for all the parties. The claim of the petitioner vis-à-vis the 1st respondent can be considered only at the stage of delivery of possession, provided if it is otherwise enforceable in law.
The miscellaneous petitions filed in this revision shall also stand disposed of. There shall be no order as to costs.
L. NARASIMHA REDDY, J
19-09-2014
ks Note:
LR copy to be marked.
B/O ks