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CASE NO.:

Appeal (civil) 2508 of 1997

PETITIONER:

Rachakonda Venkat Rao and Ors.

RESPONDENT:

R. Satya Bai (D) By LR. And Anr.

DATE OF JUDGMENT: 11/09/2003

BENCH:

BRIJESH KUMAR & ARUN KUMAR.

JUDGMENT:

JUDGMENT

ARUN KUMAR, J

This appeal is directed against an order dated 19th

June, 1998 of the High Court of Andhra Pradesh whereby

the order of the trial court rejecting an application of the

plaintiff under Order XXVI Rules 13 and 14 read with Section

151 of the Code of Civil Procedure was set aside and the

trial court was directed to take steps towards passing a final

decree. Briefly the facts are :

Parties to the suit are closely related being members of

a family of four brothers. Plaintiff No.1 was the widow of the

eldest brother. On 14th May, 1975 she filed a suit for

partition of the joint family immoveable properties in the

court of the District Judge, Adilabad (A.P.). Plaintiff No.2 is

the daughter of plaintiff No.1. Defendants are younger

brothers of husband of plaintiff No.1 and members of their

families. During the pendency of the suit, parties arrived at a

compromise. A joint application was filed under Order XXIII

Rule 3 CPC praying that the compromise be recorded and a

decree in terms of the compromise be passed. The learned

District Judge passed the decree on 13th July, 1978 on the

basis of the said compromise application.

The entire controversy in the present appeal revolves

around the decree dated 13th July, 1978. The question is

whether the said decree was a final decree or a preliminary

decree. Defendants are the appellants in this appeal while

plaintiff is the respondent. We will refer to the parties as

plaintiff and defendants.

On 20th September, 1991 plaintiff No.2 (plaintiff No.1 had

died in the meanwhile) moved an application under Order

XXVI Rules 13 and 14 read with Section 151 CPC praying

that a Commissioner be appointed to divide the joint

properties by metes and bounds and to allot separate shares

as per the decree dated 13th July, 1978. In the body of the

affidavit filed in support of the said application, the plaintiff

stated that she had been put in separate possession of

properties at Serial Nos. 1,2,3 and 5 in Schedule -I to the

decree dated 13th July, 1978 while properties at Serial Nos.

4,6 and 7 were put in joint possession. According to the

plaintiff, a Commissioner had to be appointed in pursuance

of the decree to divide the joint properties as per shares of

parties by metes and bounds and to allow separate

possession and enjoyment thereof. Only defendant No.1

filed a reply to the said application opposing the same.

According to the defendant with the passing of the decree

dated 13th July, 1978 pursuant to the compromise arrived at

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between the parties, the final partition had taken place and

nothing remained for taking any further steps for partition.

He averred that in view of change in value of the properties

with the passage of time, the plaintiff was trying to wriggle

out of the decree dated 13th July, 1978. In October, 1985 in

view of such an attitude of the plaintiff a further arrangement

had taken place between the parties. The said arrangement

had also been acted upon. Even during the pendency of the

application, a compromise in writing had taken place

between the parties on 5th July, 1992. It was a

Memorandum of family arrangement to which the plaintiff

was a party. The same had been arrived at in the presence

of parties and others including some advocates. The

defendant pleaded that in view of the subsequent

developments, the court may pass a decree in accordance

with the Memorandum of family arrangement executed

between the parties. In any case as per the stand of the

defendant, the application under reply was not maintainable

and was also hopelessly barred by time having been made

more than 12 years after the decree dated 13th July, 1978.

The learned District Judge framed the following points for

consideration for deciding the application :

1. Whether the application is maintainable under law?

2. Whether there was any settlement between the

parties subsequent to the passing of the compromise

decree and for that reason the petitioner is not

entitled to ask for appointment of Commissioner for

the purpose of further division by metes and bounds?

3. To what relief ?

The trial court recorded oral evidence on the said

application. The defendants examined five witnesses. The

plaintiff however did not examine herself nor she lead any

documentary evidence. Defendants also proved certain

documents on record. The stand of the defendants is clear.

According to them nothing remained for taking any further

steps by the court which means that according to defendants

the decree dated 13th July, 1978 was a final decree and

therefore such an application was not maintainable.

Defendants lead oral evidence regarding October, 1985 oral

settlement between the parties which was said to have been

also acted upon. They led evidence regarding the 5th July,

1992 settlement by way of Memorandum of family

arrangement. The learned District Judge dismissed the

plaintiff's application by order dated 4th February, 1993. The

application was held to be not maintainable. The learned

District Judge accepted the 1985 arrangement by way of

mutual agreement between the parties and stated that the

said arrangement had been acted upon. The District Judge,

however, did not take into consideration the subsequent

family arrangement dated 5th July, 1992 because it was

alleged to have taken place after the application under

consideration had already been moved.

The plaintiff filed a revision petition under Section 115

CPC in the High Court against the order of the District Judge

dated 4th February, 1993. The High Court by its impugned

judgment dated 19th June, 1996 allowed the Civil Revision

Petition setting aside the order of the District Judge. The

High Court treated the decree dated 13th July, 1978 as a

preliminary decree and, therefore, it entertained the

application for final decree. The High Court rejected the

evidence led by defendants to establish the oral agreement

of 1985. It weighed with the High Court that even as per

defendant No.1 the oral arrangement of 1985 stood

superseded by an arrangement of 1992. The High Court

further noted that according to both the parties the 1985

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arrangement did not survive. The July, 1992 arrangement

was rejected also on the ground that it was not signed by all

the parties. It was signed only by three parties. In addition,

it was observed that the said document was neither properly

stamped nor it was registered. The High Court refused to

accept that the decree dated 13th July, 1978 stood satisfied

for the reason that satisfaction of the decree had not been

recorded in accordance with provisions of Order XXI Rule 2

CPC. For all these reasons, the High Court directed the trial

court to proceed with the application and take steps for

passing a final decree in the suit.

The main question for consideration before us is :

whether the decree dated 13th July, 1978 was a final decree

or it was only a preliminary decree? We have heard learned

counsel for the parties at length. We have been taken

through the relevant legal provisions. The parties' counsel

cited judgments in support of their respective contentions.

However, we are of the view that the decision of the case

really turns on the interpretation of the compromise

application and the decree dated 13th July, 1978. Before we

set down to interpret the decree dated 13th July, 1978, we

would like to refer to relevant provisions of the Code of Civil

Procedure. Sub-section (2) of Section 2 of the Code defines

a decree as :

"Sub-section (2) :

"decree" means the formal expression of an

adjudication which, so far as regards the Court

expressing it, conclusively determines the

rights of the parties with regard to all or any of

the matters in controversy in the suit and may

be either preliminary or final. It shall be

deemed to include the rejection of a plaint and

the determination of any question within

section 144, but shall not include â\200\223

(a) any adjudication from which an

appeal lies as an appeal from an

order, or

(b) any order of dismissal for default.

Explanation â\200\223 A decree is preliminary when

further proceedings have to be taken before

the suit can be completely disposed of. It is

final when such adjudication completely

disposes of the suit. It may be partly

preliminary and partly final."

The application in question was moved by the plaintiff

under the provisions of Order XXVI Rules 13 and 14. They

are reproduced as under :

" Rule 13 : Commission to make partition

of immovable property â\200\223 Where a

preliminary decree for partition has been

passed, the Court may, in case any not

provided for by section 54, issue a

commission to such person as it thinks fit to

make the partition or separation according to

the rights as declared in such decree.

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Rule 14 : Procedure of Commissioner â\200\223 (1)

The Commissioner shall, after such inquiry as

may be necessary, divide the property into as

many shares as may be directed by the order

under which the commission was issued, and

shall allot such shares to the parties, and may,

if authorised thereto by the said order, award

sums to be paid for the purpose of equalizing

the value of the shares.

A bare reading of the definition of the word 'decree' shows

that :

(a) a decree conclusively determines the rights of the

parties with regard to all or any of the matters in

controversy in the suit; and

(b) a decree may be preliminary or final.

The explanation to the sub-section makes it clear that a

decree is preliminary when further proceedings have to be

taken before the suit can be completely disposed of. It is

final when such adjudication completely disposes of the suit.

A decree may be partly preliminary and partly final.

It is settled law that there can be more than one

preliminary decrees in a suit. Similarly, there can be more

than one final decrees in a suit.

In this background of the legal position, we proceed to

examine the decree dated 13th July, 1978. The suit in

question was a suit for partition and separate possession of

1/4th share of the plaintiffs in the suit properties. The

plaintiffs had desired to be in separate possession of their

share by effecting the partition by metes and bounds. The

application for compromise which is an admitted document

contains the followings pleadings :

"(1) That the parties have effected the partition of the

suit schedule immoveable properties. The

properties which are allotted to each branch of the

family shown in the Schedule as Nos. I to IV.

The properties shown in Schedule â\200\223I are allotted to

plaintiff Nos. 1 and 2.

The properties shown in Schedule â\200\223 II are allotted

to Krishna Rao, defendant No.3 and his branch,

that is, defendants No.3 to 13.

The properties shown in Schedule-III are allotted

to R. Venkat Rao, defendant No.1.

The properties shown in Schedule â\200\223 IV are allotted

to R. Sudhakar Rao, defendant No.2.

2. The parties are put in possession of their

respective shares of immovable properties.

3. â\200¦â\200¦â\200¦â\200¦â\200¦â\200¦

4. â\200¦â\200¦â\200¦â\200¦â\200¦â\200¦

The your honour may be please to accord the

compromise and pass the decree in terms of compromise."

With the application, Schedules I to IV were appended

which shows whatever properties were allotted to each

party. There is no dispute about the application or the

Schedules attached to it regarding distribution of the joint

properties.

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On the said application, the following decree was

passed :

"Decree :

The suit coming on before me for final

disposal on 13.7.1978 in the present of Mr.

Ramulu, Advocate for the plaintiffs and of

Mr.R.V. Kishan Rao, Advocate for the

Defendant No.1 and of Mr. P. Sridhar Rao,

Advocate for the Defendant No.2 to 13 and

agreed to compromise the matter of the suit

and they have put into (court) a deed of

compromise praying that this court will pass a

decree in accordance with the term there, this

court, in pursuance of the said deed of

compromise, do order and decree :

1. That the plaintiffs suit be and

hereby is decreed as against DI

to D13 in terms of the

compromise so far as it relates to

the subject matter of the suit.

2. That the plaintiffs No.1 and 2 are

allotted the properties shown in

Schedule No.1(in compromise)

3. That the parties are put in

possession of their respective

share of immoveable properties.

4. That the defendant 1 to 13 are to

pay the amount of Rs.7500/-

towards the 1/8th share in the

value of the house bearing

No.25-11 situated at Mancherial

within three months from the date

of compromise to the plaintiffs

(1&2). In case of failure, the

plaintiffs will have right to recover

the said amount by executing the

decree.

5. That the parties will bear this own

costs."

Schedule I properties which fell to the share of

the plaintiffs as per the said decree is as under :

" S C H E D U L E â\200\223 I

The properties towards the 1/8th share allotted

to Smt. R. Satya Bai D/o Sri Late S. Ra, Gopal

Rao and Smt. Raj Kumar w/o V. Jagannath

Rao, (Plaintiffs Nos. 1&2).

Sl. Survey Extent Nature Situated Remarks

No. No. Ac. Gts.

1. 274 1.21 W.D.C. Naspur(V)

2. 280 1.34 -do- -do-

3. 314 Total 12.05 Dry -do- To the extent

of Ac.3.20 Gts.

toward eastern

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side.

4. 75) Total extent Dry -do-

77) Ac. 23.28 Gts. These lands

are enjoyed

94) 1/4th share jointly.

107) i.e. 5.37

5. House No.4-1 situated at Naspur old titled roof house

(27' X 15') Bounded as follows :

South : House of R. Krishan Rao

North : Open space

East : House of R. Krishna Rao

West : House of R. Sudhakar Rao

6. House No.25-11 situated as Mancherial, plaintiffs 1/8th share in

terms of cash i.e. 7500/- recoverable from R. Venkat Rao, R.

Sudhakar Rao.

7. Plot No.7-49 and 7-50 total 0.28 gts situated at Mancherial to the

extent of 1/8th share.

Sd/-

Defendant No.1

Sd/-

Advocate for D-2 to 13

Sd/-

Advocate for plaintiff "

We have carefully considered the compromise

application as well as the decree passed by the trial court

on the basis thereof on 13th July, 1978. The tenor of the

entire compromise application in our view clearly indicates

that the parties settled the entire controversy in the suit and

reached a compromise with respect thereto. They effected

partition of the Schedule immoveable properties and

allotment was made as per Schedules 1 to IV. Schedule I

which alone is relevant for the present purpose shows that

the properties at Serial Nos. 1 to 3 and 5 were placed in

exclusive possession of the plaintiffs. So far as property

No.4 is concerned, the same was under acquisition and

therefore only compensation had to be received which could

be shared by the parties as and when it was received.

Regarding Property No.6, the plaintiff's share had been

converted into an equivalent in cash amounting to Rs.7500/-

recoverable from the other three brothers. Property at Serial

No. 7 was under litigation as it was occupied by outsiders.

The evidence on record shows that in view of the uncertainty

about the litigation with respect to property at Serial No.7, its

partition was neither practical nor desirable. Therefore, for

all practical purposes, there was a complete partition of the

suit properties. The compromise further shows that the

partition of suit properties in this manner was acceptable to

the plaintiffs, that is why, they moved the joint compromise

application and prayed for decree in terms thereof. The

compromise application further records the fact that parties

accepted that they had been put in possession of their

respective share of immoveable properties. The admission

on the part of the parties including the plaintiffs in our view

leaves no scope for argument that the decree dated 13th

July, 1978 was only a preliminary decree and a final decree

is yet to be passed. When parties have been put in

possession of their respective shares of immoveable

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properties by way of decree dated 13th July, 1978, nothing

remains for final decree proceedings. In fact, nothing

remains to be performed further. If under that partition some

property or properties were kept joint, it was because the

parties agreed to that course of action. Having agreed to

keep the properties joint and having had the suit finally

disposed of as per prayer made to the court, it did not lie in

the mouth of the plaintiffs to ask for final decree proceedings

again and to re-open the partition. The only course open to

the plaintiff in such a case would be to file a fresh suit for

partition with respect to properties which were kept joint.

The fact that the plaintiffs applied for final decree

proceedings after a lapse of more than 13 years further

shows that this was an after thought on the part of the

plaintiffs and we are inclined to believe defendant No.1 when

he says that in view of change in values of the properties

due to passage of time, the plaintiffs were trying to wriggle

out of the partition decree dated 13th July, 1978.

The court while dealing with the compromise

application of the parties containing a prayer for passing a

decree observed that the suit had come before the court for

final disposal on 13th July, 1978. The court further observed

that parties had agreed to compromise the matter of the suit

and they had put in court a deed of compromise praying that

a decree be passed in accordance with the terms of

compromise. This shows that the court also proceeded on

the basis that it was finally disposing of the suit be recording

a compromise between the parties with respect to subject

matter of the suit. The court further observed that the suit of

the plaintiff was decreed in terms of the compromise and the

plaintiffs 1 and 2 "are allotted the properties shown in

Schedule I (in compromise)". Again it was observed that the

parties are " put in possession of their respective share of

immoveable properties." The money decree was passed for

Rs.7500/- in favour of plaintiffs and against defendants 1 to 3

regarding property at Serial No.6 in Schedule 1 with the

direction to the defendants to pay the said amount within

three months failing which the plaintiffs were given a right to

execute the decree to recover the said amount. All this

clearly shows that the suit was finally disposed of. Parties

were put in possession of respective properties which fell to

their share. This was as per the agreement reached by the

parties about the partition of the properties. In the

agreement, the parties had accepted that they had been put

in separate possession of the various immoveable properties

allotted to each group. These proceedings dated 13th July,

1978 in our view leave no scope for an argument that they

were only by way of a preliminary decree and a final decree

was yet to be passed. In a partition suit, a court is required to

define the shares of the parties, identify the joint properties

which are to be partitioned, allocate properties to parties as

per their respective shares and put the parties in possession

of properties allocated to them. All this happened with

agreement of parties when the court passed the decree on

13th July, 1978. No step is missing in those proceedings.

Therefore, nothing remained to be done.

If at all any party was aggrieved by any provision

contained in the decree dated 13th July, 1978 only course it

was by way of a fresh suit for partition with respect to

immoveable properties which were agreed to remain joint in

the decree dated 13th July, 1978.

Learned counsel for the respondents (plaintiffs) argued

that the 1978 decree was partly preliminary and partly final.

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In support of this argument he drew our attention to the

application of the plaintiff under Order XXVI Rules 13 and 14

C.P.C. where it is stated that in the decree dated 30th July,

1978, separate possession of properties at Serial No,1,2,3

and 5 of Schedule-I had been allotted to the plaintiffs while

properties at Serial No.4, 6 and 7 of the said schedule

remained joint. From this the learned counsel submits that

so far as properties at Sl.Nos.1, 2, 3 and 5 of Schedule I are

concerned, the decree was a final decree while for rest of

the properties it was only a preliminary decree. It is further

submitted by the learned counsel for plaintiffs that in the

plaint they had asked for separate possession of all the

properties falling to their share. Accordingly a final decree

with respect to the joint properties remained to be passed.

Referring to sub-section 2 of Section 2 of the Code of Civil

Procedure it was argued that a suit has to be completely

disposed of by a final decree. In the decree dated 13th July,

1978, properties were allotted to the plaintiffs as per

schedule I. The said schedule shows that certain properties

were exclusively allotted to the plaintiffs while certain other

properties i.e. properties at Serial Nos.4, 6 and 7 of

schedule-I remained joint. For purposes of determination

whether the said decree was a preliminary decree or a final

decree or a decree partly preliminary or partly final,

reference has to be made to the decree itself. It is also

important to gather the intention of the parties from the

compromise application because it was a compromise

decree. We have already made reference to both these

documents. In our view, intention of the parties is clear, i.e.

the entire controversy in the suit was sought to be finally

settled. In a partition it is not necessary that each and every

property must be partitioned and that the parties are put in

separate possession of respective portions of properties

falling to their share. In the present case, the parties

mutually agreed to keep some of the properties joint. The

reason for this is also available from the record. The

properties which were kept joint were in a state that a

partition by metes and bounds was not possible. Property at

Serial No.4 of the Schedule I was under acquisition and

there was no point in partitioning it by meets and bounds.

Regarding property No.6 the share of the plaintiff had been

quantified in terms of money i.e. Rs.7500/- (Rupees Seven

Thousand Five Hundred only) payable by the defendants

and the plaintiffs were given a right to execute the decree to

that extent. Property at Serial No.7 was fully occupied by

outsiders with whom litigation was going on. The fate of the

litigation was unknown. Therefore, understandably it was

not partitioned. These facts clearly show that at the time of

compromise itself the parties had taken a final decision with

respect to partition of all the joint family properties and the

same had been given effect to. The compromise application

does not contain any clause regarding future course of

action which gives a clear indication that nothing was left for

future on the question of partition of the joint family

properties. The curtain had been finally drawn.

The learned counsel for plaintiff also tried to build

argument based on the fact that the 1978 decree has been

referred as a preliminary decree by defendant No.1 in his

reply to the plaintiff's application under Order XXVI Rules 13

and 14 CPC. According to him this shows that defendant

himself treated the said decree as a preliminary decree.

This argument has no merit. We have to see the tenor of

the entire reply and a word here or there cannot be taken out

of context to build an argument. The reply by defendant 1

seen as a whole makes it abundantly clear that the

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defendant was opposing the prayer in the application

including the prayer for taking proceedings for passing final

decree.

We need not refer to the decisions cited by counsel for

the parties. The judgments reiterate well settled legal

position regarding which there is no controversy. As already

observed the case has to be decided on the basis of the

proceedings held on 13th July, 1978 including the

compromise application which is an accepted document. In

view of our decision that the decree dated 13th July, 1978

was a final decree, the question whether there was an oral

arrangement between the parties in October, 1985 or there

was a fresh family arrangement on 5th July, 1992 becomes

wholly irrelevant. In partition matter it is always open to the

parties to enter into fresh arrangement. They may even

decide to be again joint with respect to the properties which

means that they may throw the properties in the common

pool again. The parties are free to adopt whatever course of

action they may choose in future by way of mutual

arrangement.

The fact that the compromise in 1978 was a final

partition between the parties finds support from absence of

any averment in the compromise application regarding

reservation of right to the parties to seek partition with

respect to properties kept joint in future. The decree as a

matter of fact leaves nothing for future. As noticed earlier in

a preliminary decree normally the court declares the shares

of the parties and specifies the properties to be partitioned in

the event of there being a dispute about the properties to be

partitioned. After declaring the shares of the parties and the

properties to be partitioned, the court appoints a

Commissioner to suggest mode of partition in terms of Order

XXVI Rule 13 CPC. A perusal of Order XXVI Rule 13 CPC

shows that it comes into operation after a preliminary decree

for partition has been passed. In the present case, there

was no preliminary decree for partition and, therefore, Rule

13 of Order XXVI does not come into operation. If the

plaintiffs considered the decree dated 13th July, 1978 as a

preliminary decree, why did they wait to move the application

for final decree proceedings for 13 years? The only answer

is that the plaintiffs knew and they always believed that the

1978 decree was a final decree for partition and it was only

passage of time and change in value of the properties which

was not up to their expectations that drove plaintiffs to move

such an application.

Without adverting to the above facts of the case noticed

by us and on which we have based our decision, the High

Court proceeded on the presumption that the decree dated

13th July, 1978 was only a preliminary decree. No effort

was made to find out whether it was a preliminary decree or

a final decree. No reference was made to the compromise

application or the decree. The presumption of the High

Court that it was a preliminary decree is the error in the

approach of the High Court in deciding the issue. For all

these reasons, the impugned judgment of the High Court is

set aside. The application of the plaintiffs dated 28th

September, 1991 under Order XXVI Rules 13 and 14 read

with Section 151 CPC is dismissed. The appeal is

accordingly allowed leaving the parties to bear their own

costs.

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