Prayer in A.S.No.104 of 2008 This First Appeal has been filed under Section 96 of the Civil Procedure Code, against the judgment and decree made in O.S.No.82 of 2004 dated 16.11.2007, on the file of Additional District Court/Fast Track Court No.1, Thanjavur, in so far as declaring 1/6 th share to the 9th defendant in Item 1 of the suit schedule property is concerned.
Prayer in CRP (MD) No.2345 of 2008 This Civil Revision Petition has been filed under
Article 115 of the Constitution of India, to set aside the fair and decretal order dated 07.11.2008 passed in I.A.No.64 of 2008 in O.S.No.82 of 2004, on the file of Additional Sessions Judge/Fast Track Court No.1, Thanjavur.
In view of the factual position that both the appeal and the revision are arising out of the same proceedings, they have been taken up together and a common order is passed.
2. The brief facts of the case in a nutshell is as follows: The suit was filed by the first respondent in A.S.104 of 2008, seeking partition and separate possession in O.S.No.82 of 2004, on the file of the Fast Track Court, Tanjavur. In the said suit, the first defendant is the mother of the plaintiff, defendants 2 to 5 are the brothers and sisters of the plaintiff, defendants 6 to 8 are the purchasers from defendants 1 to 3 and 5 and 9th defendant is a Court auction purchaser of the share of the 3rd defendant. The trial Court has decreed the suit in favour of the plaintiff. Similarly, the trial Court has granted 3/6th share to the defendants 6 to 8, 1/6th share to the 4th defendant and 1/6th share to the 9th defendant respectively in Item No.1 of the suit properties. The present appeal has been filed only challenging the grant of 1/6th share to the 9th defendant alone in Item No.1 of the suit properties.
3. After passing preliminary decree in O.S.No.82 of 2004, an application was filed by the first respondent herein, in I.A.No.64 of 2008, seeking appointment of Commissioner to measure the suit properties and file a report so far as to enable the Court to pass a final decree. The Court below has passed an order appointing the Commissioner but while passing the order, the Court below has said that equities cannot be worked out in favour of the defendants 6 to 9. Hence, challenging the said finding of the court below, the revision has been filed.
4. Therefore, limited issues involved in the appeal as well as the revision are only with respect to Item No.1 of the suit properties. The subject matter of the appeal is decreeing of 1/6th share in Item No.1 of the suit properties in favour of the 9th defendant and the subject matter of the revision is that the observation made by the trial Court regarding the equities in so far as the Item No.1 of the suit properties is concerned.
5. The case of the plaintiff is that the suit properties are the self acquired properties of his father Packirisamy Pillai and the plaintiff is entitled to 1/6th share. It is the further case of the plaintiff that the defendants 6 to 9 do not have any right to have Item No.1 of the suit properties in so far his share is concerned. The defendants 6 to 8 filed written statement contending that by virtue of Ex.B30 and Ex.B31, Item No.1 of the suit properties was sold to them by defendants 1 to 3 and 5. Therefore, they are entitled to get Item No.1 of the suit properties. It is their further case that the 9th defendant is not entitled to have any share in the Item No.1 of the suit properties.
6. The case of the defendants 1, 2 and 5 is concerned, that they have sold Item No.1 of the suit properties to defendants 6 to 8 and plaintiff and the defendant-4 also orally agreed with the same.
7. The case of the third defendant is that the sale deed alleged to have been executed by him in favour of defendants 6 to 8 has been obtained by fraud, fraudulent and misrepresentation. The 3rd defendant also claims that the 9th defendant is not entitled to the Item No.1 of the suit properties.
8. The case of the 4th defendant is that she has not agreed to sell Item No.1 of the suit properties and she is entitled to have 1/6th share in the suit properties.
9. The case of the 9th defendant is that he has filed the suit for recovery of money on a promissory note in O.S.No.215 of 1991, on the file of the District Munsif Court, Madurai and obtained a decree. Then, in the Execution Petition, 1/6th share in Item No.1 of the suit properties of the 3rd defendant was brought for sale. The 9th defendant became the successful bidder on 27.11.1995 and the sale was confirmed on 05.11.1996. Thereafter, an application was filed in E.A.No.30 of 1998 for the delivery of 1/6th share in Item No.1 of the suit properties. The symbolic possession was handed over to the 9th defendant on 10.11.1998 and the delivery was also recorded on 30.11.1998. Hence, the 9th defendant pleaded that he is entitled to 1/6 share in Item No.1 of the suit properties.
10. The trial Court as mentioned above granted 1/6th share in Item No.1 of the suit properties to the 9th defendant and challenging the said share alone, the defendants 6 to 8 have filed the present appeal.
11. The learned counsel for the appellants submitted that inasmuch as the suit filed by the 9th defendant having been dismissed in O.S.No.85 of 2005 at the instance of the application filed by the plaintiff in I.A.No.43 of 2006 dated 20.03.2006, the appeal will have to be allowed and the share of the appellants will have to be increased from 3/6th to 4/6th share. The learned counsel further submitted that in view of Exs.B30 and B31, being the sale deeds obtained from defendants 1 to 3 and 5, they are entitled to get the relief for 4/6th share. The learned counsel has further submitted that in so far as the Civil Revision Petition filed against I.A.No.64 of 2008 is concerned, the observation of the Court below that the equities cannot be worked out and will have to be set aside, since in the preliminary decree itself, it has been specifically stated that equities can be worked out at the time of passing final decree. It is further submitted that in an application for the appointment of Commissioner, the trial Court ought not have observed anything about the equities which has to be decided at the time of deciding the final decree. Therefore, the learned counsel prayed for allowing the appeal as well as the revision.
12. The learned counsel appearing for the first respondent/plaintiff submitted that on an earlier occasion, the Hon'ble Supreme court while allowing the impleadment of appellants has fixed the outer limit of six months time for the disposal of the suit. Hence, according to the learned counsel filing of the appeal is a misconceived one, since it would amount to interference with the orders of the Hon'ble Supreme Court. The learned counsel further submitted that the observations made by the learned trial Judge is only in furtherance of the final decree proceedings and the Court below has ample powers to give directions.
13. The learned counsel for the 9th defendant submitted that the suit filed by him in O.S.No.85 of 2005 was dismissed as infructuous since the claim made by one Chandrasekaran over the 1/6th share of the 9th defendant in Item No.1 of the suit properties was negatived by the Hon'ble High Court by setting aside the auction confirmed in his favour. The suit was filed in O.S.No.85 of 2005 by including the said Chandrasekaran thereby, challenging the auction in his favour. Therefore, according to the learned counsel the suit has been dismissed since the relief sought for against the said Chandrasekaran was already granted and in fact, the trial Court has observed in the said suit that in view of the pendency of the suit in O.S.No.82 of 2004, the 9th defendant can work out his remedy in the said suit. The learned counsel further submitted that in so far as 1/6th share in Item No.1 of the suit properties of the 9th defendant is concerned, the Court below in I.A.No.43 of 2006 in O.S.No.85 of 2005 has held that there was no dispute regarding 1/6th share of the 9th defendant and the same has not been denied by the other defendants.
14. The only issues to be decided in the appeal is as to whether the appellants are entitled to have 1/6th share of the 9th defendant in Item No.1 of the suit properties as well or not. As mentioned above, the appellants have not questioned the share of the plaintiff and the 4th defendant. The learned counsel for the appellants submitted that in view of Exs.B30 and B31, which have been executed by the 3rd defendant, they are entitled to have 1/6th share originally belonging to the 3rd defendant. The learned counsel further submitted that the appellants being bonafide purchasers, 1/6the share in Item No.1 of the suit properties of the 9th defendant also should be included in their share.
15. It is seen that the 9th defendant became the successful bidder on 27.11.1995 for 1/6th share of the suit properties of the 3rd defendant and the sale was confirmed on 05.11.1996. The execution application filed in E.A.30 of 1998 was ordered by handing over symbolic possession on 10.11.1998 and the delivery was recorded on 30.11.1998. It is also seen from the records Ex.B30 was executed on 18.06.1999 and Ex.B31 was executed on 19.06.1999 by the 3rd defendant.
16. Therefore, on a consideration of the above said facts, it is made clear that Exs.B30 and B31 have been executed by the 3rd defendant in favour of the appellants after the delivery was recorded on 30.11.1998. In other words, the entire proceedings in O.S.No.215 of 1991 were concluded and 9th defendant became the owner on 30.11.1998 of 1/6the share in Item No.1 of the suit properties. Therefore, the sale deed in so far as the share of the 3rd defendant is concerned, it does not have any value since admittedly, the 3rd defendant did not have the title to execute the sale deed. Further, a perusal of the order passed in I.A.No.43 of 2006 would clearly show that the trial Court has given a finding in favour of the 9th defendant and the same has also become final. Therefore, this Court is of the opinion that the judgment and decree of the Court below in so far as 1/6th share in Item No.1 of the suit property is concerned, it deserves to be confirmed. Accordingly, the appeal is dismissed.
17. In so far as the revision filed by the revision petitioners is concerned, their only grievance is that in an application filed for the appointment of Commissioner, the Court below has exceeded its limit in observing that equities shall not be looked into in favour of the petitioners. It is also submitted that even in the preliminary decree, the trial Court has observed that equities shall be looked into while dividing the properties. On the contrary, the learned counsel for the first respondent submitted that the said observation is not appellable. The learned counsel appearing for the seventh respondent has also submitted that the said observation of the trial Court is wrong and while considering the equities, the same has to be considered taking into consideration of the case of the seventh respondent/9th defendant as well.
18. As contended by the learned counsel for the petitioners, it is seen from the records that the Court below while passing the preliminary decree has specifically stated that equities can be worked out during final decree proceedings. This Court is of the opinion that any application seeking appointment of the Commissioner, the Court below ought not to have considered the equities, since the side question does not arise for consideration. The question of equities will have to be seen by the Court after the report of the Commissioner and while passing orders in the final decree proceedings determining the specific portions of the suit properties. Item No.1 of the suit properties consist of land and building. Considering the said factual position and also considering the fact that the preliminary decree having became final, the observation of the Court below to the effect that equities shall not be looked into is totally uncalled for. The trial Court cannot pre-determine the issues which will have to be decided only at the time of passing orders in the final decree application.
19. In so far as the contentions of the learned counsel for the first respondent is concerned, this Court is of the opinion that the judgment relied upon in 1915 (II) LW 693 (Srinivasa Mudali Vs. Ramasami Mudali and others) is not applicable to the present case on hand. In the side case, the issue was regarding the application for appointment of Commissioner, which was an application for execution or a step in the suit. However, in the present case, the contentions of the learned counsel for the petitioners is that the observation made by the Court below regarding the equities is one exceeding the jurisdiction and hence, the revision is maintainable. It is well settled principle of law that wherever, there is a procedure worked out and when the Court below exceeds its jurisdiction, the revision under
Article 227 is maintainable. In so far as the second contention of the first respondent is concerned, the side contention is also liable to be rejected since the observation made by the trial Court regarding equities cannot be construed as the one in aid of the final decree. The judgment relied upon by the learned counsel reported in 1982 TNLJ 510 (Balakrishnan Vs. Radha Boi and six others) is extracted hereunder for ready reference which is as follows: "A partition suit in which a preliminary decree has been passed is still a pending suit and the rights of the parties have to be adjusted as on the date of the final decree. The preliminary decree determines the moieties of the respective parties and thereby, furnishes the basis upon which the division of the property has to be made. There are other matters in addition to the moieties of the parties that have to be considered and decided before an equitable final partition can be affected."
20. The judgment also does not support the case of the respondent. In the said judgment, it has been said that the Court below can consider the other factors such as realization of common outstandings, the discharge of common liabilities with the distribution of profits. The Court also held that a direction can be given in order to avoid multiplicity of litigation and to do complete justice and to effect an equal distribution of all common assets. The learned judge has also observed that improvements effected on the lands also will have to be looked into. However, in the present case on hand, the Court below merely stated that the equities cannot be looked into. In fact, perusal of the judgment referred above shows that it will only support the case of the petitioners.
21. Therefore, on considering the facts and circumstances of the case, this Court is of the opinion that the appeal filed by the appellants deserves to be dismissed and the revision filed is allowed to the extent that the observation made in so far as the equities are concerned are set aside, with a direction to the trial Court to proceed with the final decree proceedings and decide the equities at the time of deciding the final decree application. The trial Court is also directed to conclude the final decree proceedings and pass a final decree, within a period of three months from the date of receipt of a copy of this order. The Registry is directed to send a copy of the judgment to the trial Court at the earliest.
In fine, the first appeal filed in A.S.No.104 of 2008 is dismissed and the revision is allowed to the extent as indicated above. Consequently, connected Miscellaneous Petitions are closed. There shall be no orders as to costs.
DP To The Additional Sessions Judge Cum Fast Track Court No.1, Thanjavur.