Or. 20 , rule 18 - Partition suit - preliminary decree - final decree passed not in accordance with preliminary decree - Appeal - dismissed - Second appeal - allowed - their lordships upheld that since the final decree is not in accordance with the preliminary decree and as such set aside the same and remanded the case for fresh disposal according to preliminary decree terms =
He filed O.S.No.475 of 1981 against respondent Nos.1 to 4
for partition of the suit schedule property into two equal shares and allotment
of one such share to him and for future profits.
The first respondent is his father;
second respondent is the purchaser of item No.1 and
respondent Nos.3 and 4 are the purchasers of item No.2 of the suit schedule property. =
Thereby the preliminary decree granted in the
suit filed by the petitioner for partition of Items 1 and 2 of suit schedule
properties was affirmed. As a result, the petitioner is entitled to half of
suit schedule properties and for future profits.
Final decree petition
The petitioner filed
I.A.No.2754 of 1994 to appoint a Commissioner for partition of suit schedule
properties into two equal shares, delivery of one such share to him and for
passing final decree in terms of preliminary decree.=
The second respondent filed counter
Bona fides of second respondent in purchasing the item-1 of suit
schedule property were upheld by the Court.
In A.S.No.109 of 1983, the first
appellate court while granting preliminary decree categorically mentioned to
allot item-1 of suit schedule properties to the first respondent by working out
equities.
By the time of sale of item-1 in his favour, it is vacant site and of
no value, and item-2 is house property and of more valuable. In view of the
preliminary decree and as item-1 is indivisible, it may be allotted to the share
of deceased of first respondent.
The existing structures on item-1 were
constructed by the second respondent. The petitioner is not entitled to make
any claim against the second respondent. Hence the petition is liable to be
dismissed.
The respondent No.5 filed counter affidavit, which was adopted by
respondent No.6, inter alia contending that
himself and respondent No.6 were
brought on record as legal representatives of first respondent/first defendant
in the High Court. The respondent No.5 aggrieved by the ex parte orders of the
Hon'ble High Court in S.A.No.119 of 1987 and S.A.No.86 of 1987 taking steps to
file second appeal along with petition to condone delay in preferring the same.
They have strong case and if they succeed in second appeal it will be very
difficult for them to recover any property from the petitioner if half share is
allotted to them. The right to file additional counter is reserved by them.
The trial court by order dated 31.12.1998
appointed Sri V.V.
Kaleswaraopantulu, Advocate as Commissioner directing him to divide the schedule
properties into two equal and equitable shares, with the assistance of a
qualified surveyor.
In pursuance of the order, the Advocate Commissioner
measured the property and filed the report dated 22.11.1999 along with plan
dividing the property.
Basing on the material available on record, the trial
Court allowed the petition dividing the suit schedule property into two equal
shares by allotting item-1 to the respondent Nos.7 to 11 with a direction to
them to pay half of the market value of item-1 to the petitioner.
As regards
item-2, it was sub-divided into Part-I and Part-II and the petitioner is
allotted half share described as Part-II in item-2 of suit schedule property.
The trial court passed final decree completely de hors the provisions of
Order XX Rule 18 CPC.
The trial court, while arriving at a conclusion that
respondent Nos.3 and 4 and their alienees are not entitled for equities, ought
to have held that the petitioner is entitled for the entire extent of item-2 of
suit schedule property.
Second Appeal as the first was dismissed
1. Whether the final decree passed by the trial court as confirmed by the
first appellate court is in conformity with the preliminary decree?
2. Whether a final decree can be passed beyond the scope of the preliminary
decree?
in page - 6 of the judgment in A.S.No.45 of 2002.
"The appeal is allowed with costs throughout and the judgment and decree passed
by lower court are hereby reversed and the suit is decreed ordering partition of
the plaint schedule properties into two equal shares and to put the plaintiff in
possession of one such share.
In the final decree proceedings, equities
regarding allotment of item No.1 to the share of 1st defendant shall be worked
out as contended by the 2nd defendant.
Future profits from the date of the suit
shall be determined on a separate application under Order 20 Rule 12 C.P.C. A
preliminary decree shall be drawn accordingly."
Settled law - in Muthangi Ayyanna v
Muthangi Jaggarao3; in para-6, the Supreme Court observed as follows.
"This appeal, coming up before us from the final decree, raises the question
whether the preliminary decree, confines, as the learned counsel for the
appellant-defendant 4 submits, accounting to the claims made by and against
individual parties mentioned in the preliminary decree. He urges that it cannot
be extended to all parties, including the defendant 4, if the terms of the
preliminary decree are binding. The contention is based on the well recognised
proposition that a final decree cannot amend or go behind the preliminary decree
on a matter determined by the preliminary decree."
The trial court proceeded on a premise that its duty is to protect the
interest of respondent Nos.3 and 4 and their alienees by working out equities
even though the preliminary decree is silent on that aspect.
The result portion
of the order in I.A. No.2754 of 1994 so far as item-2 of suit schedule property
is as follows.
"That so far as item No.2 of petition schedule property is concerned, the
petitioner/ plaintiff be and is hereby allotted half share described as part-II
in the plan enclosed to the Commissioner's report besides the mesne profits
allowed under a separate petition."
19. As per the terms of the final decree, the respondent Nos.7 to 11 are
entitled to item-1 of suit schedule property; and the petitioner is entitled to
Part-II of item-2 apart from receiving half of the market value of item-1.
Part-I of item-2 is not allotted to anybody as per the preliminary decree. A
perusal of the order gives an impression that respondent Nos.3 and 4 and their
alienees have to deliver 79.1 Sq.yards of site to the petitioner and by
necessary implication respondent Nos.3 and 4 and their alienees are entitled to
retain Part-I of item-2 of the suit schedule property. However this aspect is
not reflecting in the final decree. There is a conflict between the order and
the final decree passed in I.A.No.2754 of 1994, which is not permissible under
law.
20. The trial court passed final decree completely de hors the provisions of
Order XX Rule 18 CPC. The trial court, while arriving at a conclusion that
respondent Nos.3 and 4 and their alienees are not entitled for equities, ought
to have held that the petitioner is entitled for the entire extent of item-2 of
suit schedule property.
In the light of the foregoing discussion, I have no hesitation to hold
that the trial court has passed the final decree by traversing the terms of the
preliminary decree. The courts below have lost sight of settled legal principle
that the court shall not pass final decree in contravention of the terms of the
preliminary decree. This court is very much conscious that it shall not lightly
interfere with the concurrent findings recorded by the courts below. Suffice to
say that the first appellate court is a final court so far as fact finding is
concerned. The concurrent findings recorded by the courts below are in
contravention of the settled principles of law; hence they are liable to be set
aside. There is question of law much less substantial question of law in this
appeal.
23. In the result, the second appeal is allowed, setting aside the decree and
judgment dated 03.9.2004 passed in A.S.No.45 of 2002 on the file of the I
Additional District Judge, West Godavari, Eluru. Consequently the final decree
and order dated 30.04.2001 passed in I.A.No.2754 of 1994 in O.S.No.475 of 1981
on the file of the Principal Junior Civil Judge, Eluru is also set aside. The
trial court is hereby directed to pass final decree afresh strictly adhering to
the terms of the preliminary decree as early as possible preferably within a
period of four months from the date of receipt of a copy of this order. There
shall be no order as to costs.
2014 judis.nic.in/judis_andhra/filename=11014
HONOURABLE SRI JUSTICE T.SUNIL CHOWDARY
SECOND APPEAL No.290 of 2005
13-03-2014
Neelam Chittemma, W/o.Suryanarayana And others...
Appellants/Appellants/Respondents-7 and 9 to 11
Tirlangi Appa Rao, S/o.late Appalaswamy (died) per L.Rs (R9 to R12)And
others... Respondents 1 to 12/
Respondents/Petitioner & Respondents 1 to 6 and 8
Counsel for the Appellants: Mr.K.Sita Ram
Counsel for respondents 9 to 12: Mr. M.V. Pratap Kumar
Representing Mr.M.V.S. Suresh Kumar
Counsel for respondents 6 & 7 : Sri G.Ronald Raju
Counsel for respondents 4 & 5 : Dismissed for default
Respondent No.8 : Not necessary party.
<GIST:
>HEAD NOTE:
?CASES REFERRED:
1.AIR 1965 SC 1325
2.AIR 1963 SC 992
3.AIR 1977 SC 292
THE HON'BLE SRI JUSTICE T.SUNIL CHOWDARY
SECOND APPEAL No.290 of 2005
March 14, 2014
THE HON'BLE SRI JUSTICE T. SUNIL CHOWDARY
SECOND APPEAL No.290 OF 2005
JUDGMENT:
This second appeal is preferred by the respondent Nos.7 and 9 to 11
challenging the decree and judgment dated 03.09.2004 passed in A.S.No.45 of 2002
on the file of the I Additional District Judge, West Godavari, Eluru, confirming
the final decree and order dated 30.04.2001 passed in I.A.No.2754 of 1994 in
O.S.No.475 of 1981 on the file of the Principal Junior Civil Judge, Eluru. The
parties are hereinafter referred to as they are arrayed in the final decree
proceedings, for the sake of convenience.
2. The case of the petitioner in I.A.No.2754 of 1994 filed for grant of final
decree is as follows. He filed O.S.No.475 of 1981 against respondent Nos.1 to 4
for partition of the suit schedule property into two equal shares and allotment
of one such share to him and for future profits. The first respondent is his
father; second respondent is the purchaser of item No.1 and respondent Nos.3 and
4 are the purchasers of item No.2 of the suit schedule property. The suit was
dismissed on 07.07.1983. Aggrieved thereby, the petitioner preferred A.S.No.109
of 1983 on the file of the Additional District Judge, Eluru. The appeal was
allowed by decree and judgment dated 19.08.1986 and consequently the suit was
decreed. Being not satisfied with the decree and judgment in A.S.No.109 of
1983, the second respondent preferred S.A.No.86 of 1987 whereas one
P.Appalanarasamma, who is alienee of respondent Nos.3 & 4, preferred S.A.No.119
of 1987. During the pendency of those two second appeals, first
respondent/first defendant died and respondent Nos.5 and 6 were brought on
record as his legal representatives. Both the second appeals were dismissed by
common judgment dated 18.02.1994. Thereby the preliminary decree granted in the
suit filed by the petitioner for partition of Items 1 and 2 of suit schedule
properties was affirmed. As a result, the petitioner is entitled to half of
suit schedule properties and for future profits. The petitioner filed
I.A.No.2754 of 1994 to appoint a Commissioner for partition of suit schedule
properties into two equal shares, delivery of one such share to him and for
passing final decree in terms of preliminary decree.
3. The second respondent filed counter inter alia contending that he
purchased item-1 of suit schedule properties under registered sale deed dated
11.09.1955 for a valuable consideration of Rs.300/- from the first respondent
and ever since, he has been in exclusive possession and enjoyment of the same by
constructing a pucca house therein. The petitioner filed the suit in collusion
with his father i.e., the first respondent to cause loss to the second
respondent. Bona fides of second respondent in purchasing the item-1 of suit
schedule property were upheld by the Court. In A.S.No.109 of 1983, the first
appellate court while granting preliminary decree categorically mentioned to
allot item-1 of suit schedule properties to the first respondent by working out
equities. By the time of sale of item-1 in his favour, it is vacant site and of
no value, and item-2 is house property and of more valuable. In view of the
preliminary decree and as item-1 is indivisible, it may be allotted to the share
of deceased of first respondent. The existing structures on item-1 were
constructed by the second respondent. The petitioner is not entitled to make
any claim against the second respondent. Hence the petition is liable to be
dismissed.
4. After death of second respondent, respondent Nos.7 to 11 were brought on
record as his legal representatives. Respondent Nos.7 and 9 to 11 filed memo
adopting the counter filed by the second respondent.
5. The respondent No.5 filed counter affidavit, which was adopted by
respondent No.6, inter alia contending that himself and respondent No.6 were
brought on record as legal representatives of first respondent/first defendant
in the High Court. The respondent No.5 aggrieved by the ex parte orders of the
Hon'ble High Court in S.A.No.119 of 1987 and S.A.No.86 of 1987 taking steps to
file second appeal along with petition to condone delay in preferring the same.
They have strong case and if they succeed in second appeal it will be very
difficult for them to recover any property from the petitioner if half share is
allotted to them. The right to file additional counter is reserved by them.
6. Respondent Nos.3 and 4 who are said to be the purchasers of item-2 of suit
schedule property remained ex parte.
7. The trial court by order dated 31.12.1998 appointed Sri V.V.
Kaleswaraopantulu, Advocate as Commissioner directing him to divide the schedule
properties into two equal and equitable shares, with the assistance of a
qualified surveyor. In pursuance of the order, the Advocate Commissioner
measured the property and filed the report dated 22.11.1999 along with plan
dividing the property. Basing on the material available on record, the trial
Court allowed the petition dividing the suit schedule property into two equal
shares by allotting item-1 to the respondent Nos.7 to 11 with a direction to
them to pay half of the market value of item-1 to the petitioner. As regards
item-2, it was sub-divided into Part-I and Part-II and the petitioner is
allotted half share described as Part-II in item-2 of suit schedule property.
The petitioner is permitted to file separate petition for awarding future
profits which is the subject matter of S.A.No.305 of 2005. Accordingly, final
decree to be engrossed on deposit of required stamp papers. Aggrieved by the
final decree proceedings, the respondent Nos.7 and 9 to 11 filed A.S.No.45 of
2002. The first appellate court dismissed the same as against which the
respondent Nos.7 and 9 to 11 preferred this second appeal.
8. After hearing Sri K.Sita Ram, learned counsel for the
appellants/respondent Nos.7 and 9 to 11, Sri M.V. Pratap Kumar, representing
M.V.S.Suresh Kumar, learned counsel for respondent Nos.9 to 12, the following
substantial questions of law are framed.
1. Whether the final decree passed by the trial court as confirmed by the
first appellate court is in conformity with the preliminary decree?
2. Whether a final decree can be passed beyond the scope of the preliminary
decree?
Point Nos.1 and 2:
9. The petitioner is the son of the first respondent. The second respondent
purchased the item-1 of suit schedule properties under registered sale deed
dated 11.09.1955 from the first respondent. The respondent Nos.3 and 4
purchased item - 2 of suit schedule properties from the first respondent. The
petitioner filed O.S.No.475 of 1981 against the respondent Nos.1 to 4 for
partition of suit schedule properties into two equal shares and for allotment of
one such share to him and for future profits. The suit was dismissed on
07.07.1983. The petitioner preferred A.S.No.109 of 1983 and the same was
allowed by decreeing the suit allotting half of the suit schedule properties in
favour of the petitioner. The court further directed to allot item - 1 of suit
schedule property to the first respondent as contended by the second respondent
to work out equities. Feeling aggrieved by the decree and judgment in
A.S.No.109 of 1983, second respondent filed S.A.No.86 of 1987 and
P.Appalanarasamma, who is transferee of item-2 of property from respondent Nos.3
and 4, preferred S.A.No.119 of 1987. The two second appeals were dismissed by
this court by common judgment dated 18.02.1994, confirming the preliminary
decree granted by judgment dated 19.08.1986 in A.S.No.109 of 1983.
10. The learned counsel for the appellants submitted that the trial court
committed grave error in passing final decree. To substantiate the contention,
he has drawn my attention to the decision of the Supreme Court in Chittoori
Subbanna v Kudappa Subbanna1. In para - 26, the apex Court observed as follows.
"It is urged for the decree-holder respondent that the trial Court, when
passing the final decree, could not have ignored what had been decreed under the
preliminary decree as no appeal against the preliminary decree had been
preferred and section 97, C.P.C., provided that where any party aggrieved by a
preliminary decree passed after the commencement of the Code did not appeal from
such decree, it would be precluded from disputing its correctness in any appeal
which might be preferred from the final decree. The object of section 97 is that
questions which had been urged by the parties and decided by the Court at the
stage of the preliminary decree will not be open for re-agitation at the stage
of the preparation of the final decree and would be taken as finally decided if
no appeal had been preferred against the preliminary decree."
11. In order to appreciate the rival contentions, this Court is placing
reliance on the decision in Venkata Reddy v Pethi Reddy2, wherein the Supreme
Court held as follows.
"A preliminary decree passed, whether it is in 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 decision does not necessarily depend upon its being
executable. The legislature in its wisdom has thought that suits of certain
types should be decided in stages and though the suit in such cases can be
regarded as fully and completely decided only after a final decree is made the
decision of the court arrived at the earlier stage also has a finality attached
to it. It would be relevant to refer to Section 97 of the Code of Civil
Procedure which provides that where a party aggrieved by a preliminary decree
does not appeal from it, he is precluded from disputing its correctness in any
appeal which may be preferred from the final decree. This provision thus
clearly indicates that as to the matters covered by it, a preliminary decree is
regarded as embodying the final decision of the court passing that decree."
(emphasis supplied)
12. This court also placed reliance upon the decision in Muthangi Ayyanna v
Muthangi Jaggarao3; in para-6, the Supreme Court observed as follows.
"This appeal, coming up before us from the final decree, raises the question
whether the preliminary decree, confines, as the learned counsel for the
appellant-defendant 4 submits, accounting to the claims made by and against
individual parties mentioned in the preliminary decree. He urges that it cannot
be extended to all parties, including the defendant 4, if the terms of the
preliminary decree are binding. The contention is based on the well recognised
proposition that a final decree cannot amend or go behind the preliminary decree
on a matter determined by the preliminary decree."
(emphasis supplied)
13. As per the principle enunciated in the cases cited supra, in a suit for
partition, the court determines and declares the rights of the parties while
passing the preliminary decree. The shares of the parties to the suit will be
worked out in the final decree proceedings.
14. The crucial question that arises for consideration is whether the trial
court has passed final decree in consonance with the preliminary decree. For
better appreciation of the rival contentions, it is not out of place to extract
hereunder the relevant portion of the judgment in A.S.No.109 of 1983 as
extracted in page - 6 of the judgment in A.S.No.45 of 2002.
"The appeal is allowed with costs throughout and the judgment and decree passed
by lower court are hereby reversed and the suit is decreed ordering partition of
the plaint schedule properties into two equal shares and to put the plaintiff in
possession of one such share. In the final decree proceedings, equities
regarding allotment of item No.1 to the share of 1st defendant shall be worked
out as contended by the 2nd defendant. Future profits from the date of the suit
shall be determined on a separate application under Order 20 Rule 12 C.P.C. A
preliminary decree shall be drawn accordingly."
As per the judgment of the first appellate court, respondent Nos.3 and 4 and
their alienees are not entitled to claim equities. As observed earlier,
P.Appalanarasamma i.e., alienee of respondent Nos.3 and 4 preferred S.A.No.119
of 1987 on the file of this court. The relevant portion in para - 19 of the
judgment is extracted hereunder.
"... ... ... The conduct of defendants 3 and 4 and their transferee, the
appellant in A.S. No.119/1987 (sic S.A.No.119/1987 in keeping out of the
proceedings before the trial and 1st appellate courts disentitle the appellants
in raising those points for the first time in this second appeal. Appellant in
S.A.No.119/1987 took the chance of a decision against him, obviously with
knowledge of all the proceedings. He is not entitled to plead equities in his
favour at this belated stage and by reason of his positive acquiescence."
Even as per the judgment in S.A.No.119 of 1987, the alienee of respondent Nos.3
and 4 is not entitled to claim equities. The preliminary decree drafted by the
first appellate court in A.S.No.109 of 1983 reads as under.
1. that the appeal be and the same is hereby allowed;
2. that the judgment and decree passed by lower court under appeal be and are
hereby set aside;
3. that the plaint schedule properties be divided into two equal shares and the
plaintiff be put in possession of one such share;
4. that in the final decree proceedings, equities regarding allotment of item
No.1 of the share of the 1st defendant be worked out;
5. that the future profits from the date of suit be determined on a separate
application under Order 20 Rule 12 C.P.C;
6. that the respondents do pay to the appellant a sum of Rs.754-00 towards costs
of the appeal, bearing their own costs of Rs.nil, as no memo of costs filed; and
7. that the respondents-defendants to (sic, do) also pay to the appellant-
plaintiff a sum of Rs.311-70 towards costs of the suit in the lower court.
As per the terms of the preliminary decree, the alienee of respondent Nos.3 and
4 is not entitled to claim equities at the time of passing of final decree. It
is a settled principle of law that a preliminary decree, in a partition suit,
merely determines and declares the rights of the parties in respect of suit
schedule property. In the final decree proceedings, the court has to division
the property by metes and bounds and allot the shares keeping in mind the rights
and convenience of the parties. The function of the final decree is to apply
what preliminary decree is ordered. A final decree is thus based upon and
controlled by preliminary decree.
15. It is not out of place to extract hereunder the relevant portion in para -
11 of the order in I.A.No.2754 of 1994.
"Because it will deprive totally the other alienees of R.1 of item No.2. Though
they are not entitled to the equities, they cannot be completely deprived of the
property purchased by them from R.1, at least to the extent of half share of
R.1. Because they invested huge amounts for the construction of double storeyed
building."
16. A perusal of the above para clearly indicates that the trial court is
conscious of the fact that alienees of first respondent i.e., respondent Nos.3
and 4 are not entitled for any equities. But the tenor of the judgment of the
trial court demonstrates its sympathy towards respondent Nos.3 and 4 and their
alienees, who are not entitled to claim equities in terms of preliminary decree
passed in A.S.No.109 of 1983 as confirmed by the High Court in S.A.No.86 of
1987. It is not out of place to extract hereunder relevant portion in para - 13
of the order.
"Commissioner Sri V.V.Kaleswara Pantulu suggested division of item No.2 into two
equal parts numbering 1 and 2. One part covered by R.C.C. building joint lane
partly and some vacant land described as part-I and part-II consists of jammu
house, vacant site and some vacant land etc., described in the report as shown
in the plan enclosed located in T.S.No.122 and 167."
17. This court is unable to understand how the Advocate Commissioner has
divided item-2 of suit schedule property into two equal shares i.e., Part-I and
Part-II. The trial court basing on the report of the Advocate Commissioner made
the following observations in para - 14 of its judgment, which read as under.
"Since the subsequent purchasers are not entitled to equities, they are liable
to deliver half of extent of land covered by item No.2 described as part-II in
the Commissioner plan which comes to 79.1 Sq.yards."
18. The trial court proceeded on a premise that its duty is to protect the
interest of respondent Nos.3 and 4 and their alienees by working out equities
even though the preliminary decree is silent on that aspect. The result portion
of the order in I.A. No.2754 of 1994 so far as item-2 of suit schedule property
is as follows.
"That so far as item No.2 of petition schedule property is concerned, the
petitioner/ plaintiff be and is hereby allotted half share described as part-II
in the plan enclosed to the Commissioner's report besides the mesne profits
allowed under a separate petition."
19. As per the terms of the final decree, the respondent Nos.7 to 11 are
entitled to item-1 of suit schedule property; and the petitioner is entitled to
Part-II of item-2 apart from receiving half of the market value of item-1.
Part-I of item-2 is not allotted to anybody as per the preliminary decree. A
perusal of the order gives an impression that respondent Nos.3 and 4 and their
alienees have to deliver 79.1 Sq.yards of site to the petitioner and by
necessary implication respondent Nos.3 and 4 and their alienees are entitled to
retain Part-I of item-2 of the suit schedule property. However this aspect is
not reflecting in the final decree. There is a conflict between the order and
the final decree passed in I.A.No.2754 of 1994, which is not permissible under
law.
20. The trial court passed final decree completely de hors the provisions of
Order XX Rule 18 CPC. The trial court, while arriving at a conclusion that
respondent Nos.3 and 4 and their alienees are not entitled for equities, ought
to have held that the petitioner is entitled for the entire extent of item-2 of
suit schedule property.
21. The trial court lost sight of the settled principle of law that the scope
of final decree is only to division the property and allot the shares by metes
and bounds in pursuance of preliminary decree. The first appellate court mainly
focussed on the aspect whether the respondent Nos.7 to 11 have to pay half of
the market value of item-1 to the petitioner or not. The first appellate court
has not bestowed its attention as to whether the trial court has passed final
decree in terms of the preliminary decree or not. The first appellate court
also proceeded as if the trial court has passed the final decree within the
ambit of Order XX Rule 18 CPC.
22. In the light of the foregoing discussion, I have no hesitation to hold
that the trial court has passed the final decree by traversing the terms of the
preliminary decree. The courts below have lost sight of settled legal principle
that the court shall not pass final decree in contravention of the terms of the
preliminary decree. This court is very much conscious that it shall not lightly
interfere with the concurrent findings recorded by the courts below. Suffice to
say that the first appellate court is a final court so far as fact finding is
concerned. The concurrent findings recorded by the courts below are in
contravention of the settled principles of law; hence they are liable to be set
aside. There is question of law much less substantial question of law in this
appeal.
23. In the result, the second appeal is allowed, setting aside the decree and
judgment dated 03.9.2004 passed in A.S.No.45 of 2002 on the file of the I
Additional District Judge, West Godavari, Eluru. Consequently the final decree
and order dated 30.04.2001 passed in I.A.No.2754 of 1994 in O.S.No.475 of 1981
on the file of the Principal Junior Civil Judge, Eluru is also set aside. The
trial court is hereby directed to pass final decree afresh strictly adhering to
the terms of the preliminary decree as early as possible preferably within a
period of four months from the date of receipt of a copy of this order. There
shall be no order as to costs.
24. The miscellaneous petitions if any pending in this second appeal shall
stand closed.
__________________________
(T.SUNIL CHOWDARY, J)
14th March, 2014.
He filed O.S.No.475 of 1981 against respondent Nos.1 to 4
for partition of the suit schedule property into two equal shares and allotment
of one such share to him and for future profits.
The first respondent is his father;
second respondent is the purchaser of item No.1 and
respondent Nos.3 and 4 are the purchasers of item No.2 of the suit schedule property. =
Thereby the preliminary decree granted in the
suit filed by the petitioner for partition of Items 1 and 2 of suit schedule
properties was affirmed. As a result, the petitioner is entitled to half of
suit schedule properties and for future profits.
Final decree petition
The petitioner filed
I.A.No.2754 of 1994 to appoint a Commissioner for partition of suit schedule
properties into two equal shares, delivery of one such share to him and for
passing final decree in terms of preliminary decree.=
The second respondent filed counter
Bona fides of second respondent in purchasing the item-1 of suit
schedule property were upheld by the Court.
In A.S.No.109 of 1983, the first
appellate court while granting preliminary decree categorically mentioned to
allot item-1 of suit schedule properties to the first respondent by working out
equities.
By the time of sale of item-1 in his favour, it is vacant site and of
no value, and item-2 is house property and of more valuable. In view of the
preliminary decree and as item-1 is indivisible, it may be allotted to the share
of deceased of first respondent.
The existing structures on item-1 were
constructed by the second respondent. The petitioner is not entitled to make
any claim against the second respondent. Hence the petition is liable to be
dismissed.
The respondent No.5 filed counter affidavit, which was adopted by
respondent No.6, inter alia contending that
himself and respondent No.6 were
brought on record as legal representatives of first respondent/first defendant
in the High Court. The respondent No.5 aggrieved by the ex parte orders of the
Hon'ble High Court in S.A.No.119 of 1987 and S.A.No.86 of 1987 taking steps to
file second appeal along with petition to condone delay in preferring the same.
They have strong case and if they succeed in second appeal it will be very
difficult for them to recover any property from the petitioner if half share is
allotted to them. The right to file additional counter is reserved by them.
The trial court by order dated 31.12.1998
appointed Sri V.V.
Kaleswaraopantulu, Advocate as Commissioner directing him to divide the schedule
properties into two equal and equitable shares, with the assistance of a
qualified surveyor.
In pursuance of the order, the Advocate Commissioner
measured the property and filed the report dated 22.11.1999 along with plan
dividing the property.
Basing on the material available on record, the trial
Court allowed the petition dividing the suit schedule property into two equal
shares by allotting item-1 to the respondent Nos.7 to 11 with a direction to
them to pay half of the market value of item-1 to the petitioner.
As regards
item-2, it was sub-divided into Part-I and Part-II and the petitioner is
allotted half share described as Part-II in item-2 of suit schedule property.
The trial court passed final decree completely de hors the provisions of
Order XX Rule 18 CPC.
The trial court, while arriving at a conclusion that
respondent Nos.3 and 4 and their alienees are not entitled for equities, ought
to have held that the petitioner is entitled for the entire extent of item-2 of
suit schedule property.
Second Appeal as the first was dismissed
1. Whether the final decree passed by the trial court as confirmed by the
first appellate court is in conformity with the preliminary decree?
2. Whether a final decree can be passed beyond the scope of the preliminary
decree?
in page - 6 of the judgment in A.S.No.45 of 2002.
"The appeal is allowed with costs throughout and the judgment and decree passed
by lower court are hereby reversed and the suit is decreed ordering partition of
the plaint schedule properties into two equal shares and to put the plaintiff in
possession of one such share.
In the final decree proceedings, equities
regarding allotment of item No.1 to the share of 1st defendant shall be worked
out as contended by the 2nd defendant.
Future profits from the date of the suit
shall be determined on a separate application under Order 20 Rule 12 C.P.C. A
preliminary decree shall be drawn accordingly."
Settled law - in Muthangi Ayyanna v
Muthangi Jaggarao3; in para-6, the Supreme Court observed as follows.
"This appeal, coming up before us from the final decree, raises the question
whether the preliminary decree, confines, as the learned counsel for the
appellant-defendant 4 submits, accounting to the claims made by and against
individual parties mentioned in the preliminary decree. He urges that it cannot
be extended to all parties, including the defendant 4, if the terms of the
preliminary decree are binding. The contention is based on the well recognised
proposition that a final decree cannot amend or go behind the preliminary decree
on a matter determined by the preliminary decree."
The trial court proceeded on a premise that its duty is to protect the
interest of respondent Nos.3 and 4 and their alienees by working out equities
even though the preliminary decree is silent on that aspect.
The result portion
of the order in I.A. No.2754 of 1994 so far as item-2 of suit schedule property
is as follows.
"That so far as item No.2 of petition schedule property is concerned, the
petitioner/ plaintiff be and is hereby allotted half share described as part-II
in the plan enclosed to the Commissioner's report besides the mesne profits
allowed under a separate petition."
19. As per the terms of the final decree, the respondent Nos.7 to 11 are
entitled to item-1 of suit schedule property; and the petitioner is entitled to
Part-II of item-2 apart from receiving half of the market value of item-1.
Part-I of item-2 is not allotted to anybody as per the preliminary decree. A
perusal of the order gives an impression that respondent Nos.3 and 4 and their
alienees have to deliver 79.1 Sq.yards of site to the petitioner and by
necessary implication respondent Nos.3 and 4 and their alienees are entitled to
retain Part-I of item-2 of the suit schedule property. However this aspect is
not reflecting in the final decree. There is a conflict between the order and
the final decree passed in I.A.No.2754 of 1994, which is not permissible under
law.
20. The trial court passed final decree completely de hors the provisions of
Order XX Rule 18 CPC. The trial court, while arriving at a conclusion that
respondent Nos.3 and 4 and their alienees are not entitled for equities, ought
to have held that the petitioner is entitled for the entire extent of item-2 of
suit schedule property.
In the light of the foregoing discussion, I have no hesitation to hold
that the trial court has passed the final decree by traversing the terms of the
preliminary decree. The courts below have lost sight of settled legal principle
that the court shall not pass final decree in contravention of the terms of the
preliminary decree. This court is very much conscious that it shall not lightly
interfere with the concurrent findings recorded by the courts below. Suffice to
say that the first appellate court is a final court so far as fact finding is
concerned. The concurrent findings recorded by the courts below are in
contravention of the settled principles of law; hence they are liable to be set
aside. There is question of law much less substantial question of law in this
appeal.
23. In the result, the second appeal is allowed, setting aside the decree and
judgment dated 03.9.2004 passed in A.S.No.45 of 2002 on the file of the I
Additional District Judge, West Godavari, Eluru. Consequently the final decree
and order dated 30.04.2001 passed in I.A.No.2754 of 1994 in O.S.No.475 of 1981
on the file of the Principal Junior Civil Judge, Eluru is also set aside. The
trial court is hereby directed to pass final decree afresh strictly adhering to
the terms of the preliminary decree as early as possible preferably within a
period of four months from the date of receipt of a copy of this order. There
shall be no order as to costs.
2014 judis.nic.in/judis_andhra/filename=11014
HONOURABLE SRI JUSTICE T.SUNIL CHOWDARY
SECOND APPEAL No.290 of 2005
13-03-2014
Neelam Chittemma, W/o.Suryanarayana And others...
Appellants/Appellants/Respondents-7 and 9 to 11
Tirlangi Appa Rao, S/o.late Appalaswamy (died) per L.Rs (R9 to R12)And
others... Respondents 1 to 12/
Respondents/Petitioner & Respondents 1 to 6 and 8
Counsel for the Appellants: Mr.K.Sita Ram
Counsel for respondents 9 to 12: Mr. M.V. Pratap Kumar
Representing Mr.M.V.S. Suresh Kumar
Counsel for respondents 6 & 7 : Sri G.Ronald Raju
Counsel for respondents 4 & 5 : Dismissed for default
Respondent No.8 : Not necessary party.
<GIST:
>HEAD NOTE:
?CASES REFERRED:
1.AIR 1965 SC 1325
2.AIR 1963 SC 992
3.AIR 1977 SC 292
THE HON'BLE SRI JUSTICE T.SUNIL CHOWDARY
SECOND APPEAL No.290 of 2005
March 14, 2014
THE HON'BLE SRI JUSTICE T. SUNIL CHOWDARY
SECOND APPEAL No.290 OF 2005
JUDGMENT:
This second appeal is preferred by the respondent Nos.7 and 9 to 11
challenging the decree and judgment dated 03.09.2004 passed in A.S.No.45 of 2002
on the file of the I Additional District Judge, West Godavari, Eluru, confirming
the final decree and order dated 30.04.2001 passed in I.A.No.2754 of 1994 in
O.S.No.475 of 1981 on the file of the Principal Junior Civil Judge, Eluru. The
parties are hereinafter referred to as they are arrayed in the final decree
proceedings, for the sake of convenience.
2. The case of the petitioner in I.A.No.2754 of 1994 filed for grant of final
decree is as follows. He filed O.S.No.475 of 1981 against respondent Nos.1 to 4
for partition of the suit schedule property into two equal shares and allotment
of one such share to him and for future profits. The first respondent is his
father; second respondent is the purchaser of item No.1 and respondent Nos.3 and
4 are the purchasers of item No.2 of the suit schedule property. The suit was
dismissed on 07.07.1983. Aggrieved thereby, the petitioner preferred A.S.No.109
of 1983 on the file of the Additional District Judge, Eluru. The appeal was
allowed by decree and judgment dated 19.08.1986 and consequently the suit was
decreed. Being not satisfied with the decree and judgment in A.S.No.109 of
1983, the second respondent preferred S.A.No.86 of 1987 whereas one
P.Appalanarasamma, who is alienee of respondent Nos.3 & 4, preferred S.A.No.119
of 1987. During the pendency of those two second appeals, first
respondent/first defendant died and respondent Nos.5 and 6 were brought on
record as his legal representatives. Both the second appeals were dismissed by
common judgment dated 18.02.1994. Thereby the preliminary decree granted in the
suit filed by the petitioner for partition of Items 1 and 2 of suit schedule
properties was affirmed. As a result, the petitioner is entitled to half of
suit schedule properties and for future profits. The petitioner filed
I.A.No.2754 of 1994 to appoint a Commissioner for partition of suit schedule
properties into two equal shares, delivery of one such share to him and for
passing final decree in terms of preliminary decree.
3. The second respondent filed counter inter alia contending that he
purchased item-1 of suit schedule properties under registered sale deed dated
11.09.1955 for a valuable consideration of Rs.300/- from the first respondent
and ever since, he has been in exclusive possession and enjoyment of the same by
constructing a pucca house therein. The petitioner filed the suit in collusion
with his father i.e., the first respondent to cause loss to the second
respondent. Bona fides of second respondent in purchasing the item-1 of suit
schedule property were upheld by the Court. In A.S.No.109 of 1983, the first
appellate court while granting preliminary decree categorically mentioned to
allot item-1 of suit schedule properties to the first respondent by working out
equities. By the time of sale of item-1 in his favour, it is vacant site and of
no value, and item-2 is house property and of more valuable. In view of the
preliminary decree and as item-1 is indivisible, it may be allotted to the share
of deceased of first respondent. The existing structures on item-1 were
constructed by the second respondent. The petitioner is not entitled to make
any claim against the second respondent. Hence the petition is liable to be
dismissed.
4. After death of second respondent, respondent Nos.7 to 11 were brought on
record as his legal representatives. Respondent Nos.7 and 9 to 11 filed memo
adopting the counter filed by the second respondent.
5. The respondent No.5 filed counter affidavit, which was adopted by
respondent No.6, inter alia contending that himself and respondent No.6 were
brought on record as legal representatives of first respondent/first defendant
in the High Court. The respondent No.5 aggrieved by the ex parte orders of the
Hon'ble High Court in S.A.No.119 of 1987 and S.A.No.86 of 1987 taking steps to
file second appeal along with petition to condone delay in preferring the same.
They have strong case and if they succeed in second appeal it will be very
difficult for them to recover any property from the petitioner if half share is
allotted to them. The right to file additional counter is reserved by them.
6. Respondent Nos.3 and 4 who are said to be the purchasers of item-2 of suit
schedule property remained ex parte.
7. The trial court by order dated 31.12.1998 appointed Sri V.V.
Kaleswaraopantulu, Advocate as Commissioner directing him to divide the schedule
properties into two equal and equitable shares, with the assistance of a
qualified surveyor. In pursuance of the order, the Advocate Commissioner
measured the property and filed the report dated 22.11.1999 along with plan
dividing the property. Basing on the material available on record, the trial
Court allowed the petition dividing the suit schedule property into two equal
shares by allotting item-1 to the respondent Nos.7 to 11 with a direction to
them to pay half of the market value of item-1 to the petitioner. As regards
item-2, it was sub-divided into Part-I and Part-II and the petitioner is
allotted half share described as Part-II in item-2 of suit schedule property.
The petitioner is permitted to file separate petition for awarding future
profits which is the subject matter of S.A.No.305 of 2005. Accordingly, final
decree to be engrossed on deposit of required stamp papers. Aggrieved by the
final decree proceedings, the respondent Nos.7 and 9 to 11 filed A.S.No.45 of
2002. The first appellate court dismissed the same as against which the
respondent Nos.7 and 9 to 11 preferred this second appeal.
8. After hearing Sri K.Sita Ram, learned counsel for the
appellants/respondent Nos.7 and 9 to 11, Sri M.V. Pratap Kumar, representing
M.V.S.Suresh Kumar, learned counsel for respondent Nos.9 to 12, the following
substantial questions of law are framed.
1. Whether the final decree passed by the trial court as confirmed by the
first appellate court is in conformity with the preliminary decree?
2. Whether a final decree can be passed beyond the scope of the preliminary
decree?
Point Nos.1 and 2:
9. The petitioner is the son of the first respondent. The second respondent
purchased the item-1 of suit schedule properties under registered sale deed
dated 11.09.1955 from the first respondent. The respondent Nos.3 and 4
purchased item - 2 of suit schedule properties from the first respondent. The
petitioner filed O.S.No.475 of 1981 against the respondent Nos.1 to 4 for
partition of suit schedule properties into two equal shares and for allotment of
one such share to him and for future profits. The suit was dismissed on
07.07.1983. The petitioner preferred A.S.No.109 of 1983 and the same was
allowed by decreeing the suit allotting half of the suit schedule properties in
favour of the petitioner. The court further directed to allot item - 1 of suit
schedule property to the first respondent as contended by the second respondent
to work out equities. Feeling aggrieved by the decree and judgment in
A.S.No.109 of 1983, second respondent filed S.A.No.86 of 1987 and
P.Appalanarasamma, who is transferee of item-2 of property from respondent Nos.3
and 4, preferred S.A.No.119 of 1987. The two second appeals were dismissed by
this court by common judgment dated 18.02.1994, confirming the preliminary
decree granted by judgment dated 19.08.1986 in A.S.No.109 of 1983.
10. The learned counsel for the appellants submitted that the trial court
committed grave error in passing final decree. To substantiate the contention,
he has drawn my attention to the decision of the Supreme Court in Chittoori
Subbanna v Kudappa Subbanna1. In para - 26, the apex Court observed as follows.
"It is urged for the decree-holder respondent that the trial Court, when
passing the final decree, could not have ignored what had been decreed under the
preliminary decree as no appeal against the preliminary decree had been
preferred and section 97, C.P.C., provided that where any party aggrieved by a
preliminary decree passed after the commencement of the Code did not appeal from
such decree, it would be precluded from disputing its correctness in any appeal
which might be preferred from the final decree. The object of section 97 is that
questions which had been urged by the parties and decided by the Court at the
stage of the preliminary decree will not be open for re-agitation at the stage
of the preparation of the final decree and would be taken as finally decided if
no appeal had been preferred against the preliminary decree."
11. In order to appreciate the rival contentions, this Court is placing
reliance on the decision in Venkata Reddy v Pethi Reddy2, wherein the Supreme
Court held as follows.
"A preliminary decree passed, whether it is in 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 decision does not necessarily depend upon its being
executable. The legislature in its wisdom has thought that suits of certain
types should be decided in stages and though the suit in such cases can be
regarded as fully and completely decided only after a final decree is made the
decision of the court arrived at the earlier stage also has a finality attached
to it. It would be relevant to refer to Section 97 of the Code of Civil
Procedure which provides that where a party aggrieved by a preliminary decree
does not appeal from it, he is precluded from disputing its correctness in any
appeal which may be preferred from the final decree. This provision thus
clearly indicates that as to the matters covered by it, a preliminary decree is
regarded as embodying the final decision of the court passing that decree."
(emphasis supplied)
12. This court also placed reliance upon the decision in Muthangi Ayyanna v
Muthangi Jaggarao3; in para-6, the Supreme Court observed as follows.
"This appeal, coming up before us from the final decree, raises the question
whether the preliminary decree, confines, as the learned counsel for the
appellant-defendant 4 submits, accounting to the claims made by and against
individual parties mentioned in the preliminary decree. He urges that it cannot
be extended to all parties, including the defendant 4, if the terms of the
preliminary decree are binding. The contention is based on the well recognised
proposition that a final decree cannot amend or go behind the preliminary decree
on a matter determined by the preliminary decree."
(emphasis supplied)
13. As per the principle enunciated in the cases cited supra, in a suit for
partition, the court determines and declares the rights of the parties while
passing the preliminary decree. The shares of the parties to the suit will be
worked out in the final decree proceedings.
14. The crucial question that arises for consideration is whether the trial
court has passed final decree in consonance with the preliminary decree. For
better appreciation of the rival contentions, it is not out of place to extract
hereunder the relevant portion of the judgment in A.S.No.109 of 1983 as
extracted in page - 6 of the judgment in A.S.No.45 of 2002.
"The appeal is allowed with costs throughout and the judgment and decree passed
by lower court are hereby reversed and the suit is decreed ordering partition of
the plaint schedule properties into two equal shares and to put the plaintiff in
possession of one such share. In the final decree proceedings, equities
regarding allotment of item No.1 to the share of 1st defendant shall be worked
out as contended by the 2nd defendant. Future profits from the date of the suit
shall be determined on a separate application under Order 20 Rule 12 C.P.C. A
preliminary decree shall be drawn accordingly."
As per the judgment of the first appellate court, respondent Nos.3 and 4 and
their alienees are not entitled to claim equities. As observed earlier,
P.Appalanarasamma i.e., alienee of respondent Nos.3 and 4 preferred S.A.No.119
of 1987 on the file of this court. The relevant portion in para - 19 of the
judgment is extracted hereunder.
"... ... ... The conduct of defendants 3 and 4 and their transferee, the
appellant in A.S. No.119/1987 (sic S.A.No.119/1987 in keeping out of the
proceedings before the trial and 1st appellate courts disentitle the appellants
in raising those points for the first time in this second appeal. Appellant in
S.A.No.119/1987 took the chance of a decision against him, obviously with
knowledge of all the proceedings. He is not entitled to plead equities in his
favour at this belated stage and by reason of his positive acquiescence."
Even as per the judgment in S.A.No.119 of 1987, the alienee of respondent Nos.3
and 4 is not entitled to claim equities. The preliminary decree drafted by the
first appellate court in A.S.No.109 of 1983 reads as under.
1. that the appeal be and the same is hereby allowed;
2. that the judgment and decree passed by lower court under appeal be and are
hereby set aside;
3. that the plaint schedule properties be divided into two equal shares and the
plaintiff be put in possession of one such share;
4. that in the final decree proceedings, equities regarding allotment of item
No.1 of the share of the 1st defendant be worked out;
5. that the future profits from the date of suit be determined on a separate
application under Order 20 Rule 12 C.P.C;
6. that the respondents do pay to the appellant a sum of Rs.754-00 towards costs
of the appeal, bearing their own costs of Rs.nil, as no memo of costs filed; and
7. that the respondents-defendants to (sic, do) also pay to the appellant-
plaintiff a sum of Rs.311-70 towards costs of the suit in the lower court.
As per the terms of the preliminary decree, the alienee of respondent Nos.3 and
4 is not entitled to claim equities at the time of passing of final decree. It
is a settled principle of law that a preliminary decree, in a partition suit,
merely determines and declares the rights of the parties in respect of suit
schedule property. In the final decree proceedings, the court has to division
the property by metes and bounds and allot the shares keeping in mind the rights
and convenience of the parties. The function of the final decree is to apply
what preliminary decree is ordered. A final decree is thus based upon and
controlled by preliminary decree.
15. It is not out of place to extract hereunder the relevant portion in para -
11 of the order in I.A.No.2754 of 1994.
"Because it will deprive totally the other alienees of R.1 of item No.2. Though
they are not entitled to the equities, they cannot be completely deprived of the
property purchased by them from R.1, at least to the extent of half share of
R.1. Because they invested huge amounts for the construction of double storeyed
building."
16. A perusal of the above para clearly indicates that the trial court is
conscious of the fact that alienees of first respondent i.e., respondent Nos.3
and 4 are not entitled for any equities. But the tenor of the judgment of the
trial court demonstrates its sympathy towards respondent Nos.3 and 4 and their
alienees, who are not entitled to claim equities in terms of preliminary decree
passed in A.S.No.109 of 1983 as confirmed by the High Court in S.A.No.86 of
1987. It is not out of place to extract hereunder relevant portion in para - 13
of the order.
"Commissioner Sri V.V.Kaleswara Pantulu suggested division of item No.2 into two
equal parts numbering 1 and 2. One part covered by R.C.C. building joint lane
partly and some vacant land described as part-I and part-II consists of jammu
house, vacant site and some vacant land etc., described in the report as shown
in the plan enclosed located in T.S.No.122 and 167."
17. This court is unable to understand how the Advocate Commissioner has
divided item-2 of suit schedule property into two equal shares i.e., Part-I and
Part-II. The trial court basing on the report of the Advocate Commissioner made
the following observations in para - 14 of its judgment, which read as under.
"Since the subsequent purchasers are not entitled to equities, they are liable
to deliver half of extent of land covered by item No.2 described as part-II in
the Commissioner plan which comes to 79.1 Sq.yards."
18. The trial court proceeded on a premise that its duty is to protect the
interest of respondent Nos.3 and 4 and their alienees by working out equities
even though the preliminary decree is silent on that aspect. The result portion
of the order in I.A. No.2754 of 1994 so far as item-2 of suit schedule property
is as follows.
"That so far as item No.2 of petition schedule property is concerned, the
petitioner/ plaintiff be and is hereby allotted half share described as part-II
in the plan enclosed to the Commissioner's report besides the mesne profits
allowed under a separate petition."
19. As per the terms of the final decree, the respondent Nos.7 to 11 are
entitled to item-1 of suit schedule property; and the petitioner is entitled to
Part-II of item-2 apart from receiving half of the market value of item-1.
Part-I of item-2 is not allotted to anybody as per the preliminary decree. A
perusal of the order gives an impression that respondent Nos.3 and 4 and their
alienees have to deliver 79.1 Sq.yards of site to the petitioner and by
necessary implication respondent Nos.3 and 4 and their alienees are entitled to
retain Part-I of item-2 of the suit schedule property. However this aspect is
not reflecting in the final decree. There is a conflict between the order and
the final decree passed in I.A.No.2754 of 1994, which is not permissible under
law.
20. The trial court passed final decree completely de hors the provisions of
Order XX Rule 18 CPC. The trial court, while arriving at a conclusion that
respondent Nos.3 and 4 and their alienees are not entitled for equities, ought
to have held that the petitioner is entitled for the entire extent of item-2 of
suit schedule property.
21. The trial court lost sight of the settled principle of law that the scope
of final decree is only to division the property and allot the shares by metes
and bounds in pursuance of preliminary decree. The first appellate court mainly
focussed on the aspect whether the respondent Nos.7 to 11 have to pay half of
the market value of item-1 to the petitioner or not. The first appellate court
has not bestowed its attention as to whether the trial court has passed final
decree in terms of the preliminary decree or not. The first appellate court
also proceeded as if the trial court has passed the final decree within the
ambit of Order XX Rule 18 CPC.
22. In the light of the foregoing discussion, I have no hesitation to hold
that the trial court has passed the final decree by traversing the terms of the
preliminary decree. The courts below have lost sight of settled legal principle
that the court shall not pass final decree in contravention of the terms of the
preliminary decree. This court is very much conscious that it shall not lightly
interfere with the concurrent findings recorded by the courts below. Suffice to
say that the first appellate court is a final court so far as fact finding is
concerned. The concurrent findings recorded by the courts below are in
contravention of the settled principles of law; hence they are liable to be set
aside. There is question of law much less substantial question of law in this
appeal.
23. In the result, the second appeal is allowed, setting aside the decree and
judgment dated 03.9.2004 passed in A.S.No.45 of 2002 on the file of the I
Additional District Judge, West Godavari, Eluru. Consequently the final decree
and order dated 30.04.2001 passed in I.A.No.2754 of 1994 in O.S.No.475 of 1981
on the file of the Principal Junior Civil Judge, Eluru is also set aside. The
trial court is hereby directed to pass final decree afresh strictly adhering to
the terms of the preliminary decree as early as possible preferably within a
period of four months from the date of receipt of a copy of this order. There
shall be no order as to costs.
24. The miscellaneous petitions if any pending in this second appeal shall
stand closed.
__________________________
(T.SUNIL CHOWDARY, J)
14th March, 2014.
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