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This Product is Licensed to M. NAGA SHYAM KIRAN (M.N.S.K.), Advocate, Anantapuramu

Morusu Lakshmamma VS Bella Magappa

1982 0 Supreme(AP) 198

1982 2 APLJ 357; 1982 0 LS(SRC) 92

Andhra Pradesh High Court

Judges : A.SEETHARAM REDDY
Morusu Lakshmamma - Appellant
Versus
Bella Magappa - Respondent
S. A. No. 776/18
Decided On : 07-12-82
Advocates Appeared :
.

CIVIL PROCEDURE CODE : S.11

CIVIL PROCEDURE CODE, Sec 11 - Preliminary decree in a partition suit allotting

a share to plaintiff in the suit properties - Rights of the defendants only declared -
Final decree pending - Subsequent suit filed by one of the defendants for partition
end separate possession of his share - Not barred

HELD: The preliminary decree in the earlier suit against the defendant would
not be a bar to the maintainability of the subsequent action by him for partition,
where the relief was given only to the plaintiff and where the rights of the defendant
were only declared and no executable decree was passed in their favour It is not
incumbant on the defendant to make an application for passing of a final decree in a
case where a preliminary decree has been passed for partition He may either choose
to apply or abstain But nevertheless, his rights are not in any way stultified if he does
not make any application for final decree proceedings unlike the plaintiff

S A Partly Allowed

Cases referred:

Lachmi Narayan vs, Balmakund , AIR 1924 PC 198

Ramanathan vs. Alagappa , AIR 1930 Mad 528
Sundararajamma vs. Ramulu , AIR 1932 Mad 519
Abdul Kareem vs. S. Silar Saheb , AIR 1957 AP 40
Vissavajjula Mahadeva Sastri Vs Pothula Srreramamurty , 1955 AIR(AP) 282
Mallayya Vs Talari Trippanna , 1955 AIR(AP) 81
VENKATA REDDY Vs Pethi Reddy , 1963 AIR(SC) 992

A. SEETARAM REDDY, J.

( 1 ) THE Plaintiff is the appellant herein. The defendants - respondents herein filed
earlier a suit O. S. No. 27/66 on the file of the District munsif s Court, Dharmavaram for
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partition and separate possession of their 1/3rd share. A preliminary decree was passed.
Thereafter, in spite of long passage of time no application for final decree was made by
either of the parties. But now the 5th dafendant, in the earlier suit filed this suit O. S. No.
105/74 on the file of the District Munsif s Court, Dharmavaram for partition and separate
possession of 2/3rd share. It is on this format the question which was raised by way of
defence by the defendant was whether the suit was maintainable as the earlier suit
constitutes res judicata. The trial Court held that the suit was not maintainable and it was
open to the plaintiff to apply for his separate share in the preliminary decree passed in the
earlier suit. On appeal the same was confirmed. Hence this Second Appeal.

( 2 ) THE substantial question of law in this Second Appeal is whether the suit is
maintainable and whether the second suit is barred by res judicata because of the
preliminary decree in the earlier suit.

( 3 ) SRI Venkataramana, learned counsel for the Appellant (Petitioner) contended

that in this suit what is sought for is his 2/3rd share in the property and while not
disturbing the right that already accrued to the defendants herein as per the previous suit in
O. S. No. 27/66. Reliance was placed on a decision reported in Mallayya vs. Talari
Tippanna (1) a. I. R. 1955 Andhra 81 wherein Subba Rao, C. J. , as he then was, held :-
"when the defendant in a partition suit, who is in the position of a plaintiff, specifically
raises the question and gets a decision against him, he is certainly precluded from filing
another suit on the same cause of action. But in a partition suit, though the defendants have
got the option to ask for relief for a decree for possession by dividing their share of
properties by metes and bounds and obtain the same, they are not bound to do so. When
they did not exercise their option to ask for partition of their share, the decree in the earlier
suit would not be a bar to the maintainability of the subsequent action by them for
partition. Thus where the relief was given only to the plaintiff and where the rights of the
defendants were only declared but no executable decree was passed in their favour a
separate suit would lie at their instance for separate possession of their share. ""whereas
Sri Bali Reddy, the learned counsel for the respondents argued that he has no quarrel with
the proposition that the second suit is maintainable in so far as it does not affect adversely
the rights which have already accrued to his clients in the earlier suit coupled with the fact
that the mesne profits which are prayed for by the plaintiff in this suit will not be allowed
to be claimed against his clients as in the earlier suit their claim towards 1/3rd share
coupled with mesne profits was allowed. He relied on the decision reported In Venkata
Reddy vs. Pethi Reddy (2) a. I. R. 1963 Supreme Court, 992 wherein it was held that:-"a
decision is said to be final when, so far as the Court rendering it is concerned, it is
unalterable except by resort to such provisions of the Code of Civil Procedure as permit its
reversal, modification or amendment. Similarly, a final decision would mean a decision
which would operate as res judicata between the parties if it is not sought to be modified
or reversed by preferring an appeal or a revision or a review application as is permitted by
the Code. 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 contemplete 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
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the earlier stage also has a finality attached to it. Sec. 97, Civil P. C. 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".

( 4 ) SRI M. Jagannadha Rao, who was appointed as amicus curiae by me to assist in

this matter, and whose assistance has been invaluable and which is acknowledged with due
thanks, placed the following decsions before me.

( 5 ) IN Lachmi Narayan vs. Balmakund (3) A. I. R. 1924 Privy Council, 193, it has
been held that after a decree has once been made in a suit (partition), the suit cannot be
dismissed unless the decree is reversed on appeal. The parties have on the making of the
decree acquired rights or incurred liabilities which are fixed unless or until the decree is
variedor set aside. Ramanathan vs. Alagappa (4) A. I. R. 1930 Madras, 528: in this case
Curgenven, J. : who was dealing with a partition suit held that though the final decree is
only by way of working out in detail the principles laid down in the preliminary decree,
the proceedings which take place between the two decrees are in the nature of a
continuation of the suit for the purpose carrying out the directions contained in the
preliminary decree. Further held, an application for the passing of a final decree in a
pending case is not governed by Article 181 and is in fact not subject to any rule of
limitation. Sundararajamma vs. Ramulu (5) A. I. R. 1932 Madras, 519: a Division Bench
of the Madras High Court held that after a preliminary decree in a partition suit has been
passed, it is not competent to the court to dismiss the suit subsequently. The preliminary
decree can only be reversed on appeal and whatever default there may be in the
subsequent stages of the suit, that preliminary decree itself cannot be vacated. Mahadeva
vs. Sreeramamurthy (6) A. I. R. 1955 Andhra 282: subba Rao, C. J. , as he then was, held
in a suit for eviction, the court recognised the joint rights of the plaintiff and the defendant,
but dismissed that suit on the ground that it was not one for partition as it should be, but
gave only half the costs to the defendant, as it found title to only half the property in his
favour. Held that finding that the defendant was entitled to an equal right in the suit
property was the basis for disallowing half the costs to the defendant. The defendant could
have preferred an appeal against that part of the decree. The finding therefore certainly
operated as res judicata against him. Further held that the subsequent suit by the plaintiff
for partition and for separate possession on the basis that the plaintiff and the defendant
were co-owners was not barred. The cause of action for the subsequent suit was different
from that in the earlier suit, for the present suit was based upon the joint rights declared in
the earlier suit. Abdul Kareem vs. S. Siiar Saheb (7) A I R. 1957 Andhra Pradesh, 40:
viswanatha Sastri J. , held that when a preliminary decree declaring a right to partition or
the shares of the parties, has not been given effect to by the parties proceeding to partition
in accordance with it and the property continues to be jointly held by the co-sharers, their
right to partition continues. So long as they continue to be interested in the joint property
as co-sharers, it is competent for them to bring a suit for declaration of their right and for
partition in case their right to partition is denied or challenged. Such a suit is not barred by
res judicata. Further held an application made in a partition suit after the passing of a
preliminary decree, by which the shares of the parties were defined, in order that the
proceedings may be continued for the purpose of actually effecting a partition and that a
final decree for partition by metes and bounds may be passed, is not governed by Article
181,limitation Act.

( 6 ) ON the above conspectus of the case law cited, the emerging principles are:-- (1)
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A preliminary decree passed either in a partition suit or in a mortgage suit is not a tentative
decree, but must in so far as the matters dealt with by it be regarded as conclusive.
However, the finality of a decree or a decision does not necessarily depend upon its being
executable. (2) There is a continuity of the suit between the periods from the date of
preliminary decree passed in a partition or a mortgage suit upto the final decree
proceedings. (3) It is not incumbent on the defendant to make an application for passing of
a final decree in a case where a preliminary decree has been passed for partition. He may
either choose to apply for or obstain. But nevertheless, his rights are not in any way
stultified if he does not make any application for final decree proceedings, unlike the
plaintiffs. (4) There is no limitation prescribed as Article 137 of the limitation Act has no
application for making an application in a partition suitafter the passing of the preliminary
decree for partition by metes and bounds. (5) The preliminary decree in the earlier suit
against the defendant would not be a bar to the maintainability of the subsequent action by
him for partition, where the relief was given only to the plaintiff and where the rights of
the defendants were only declared and not executable decree was passed in their favour.
The preliminary decree passed in the earlier suit O. S. No. 27/66 is as under:"that the
schedule properties mentioned herein be divided into three shares equally by metes and
bounds and with reference to good and bad soil and plaintiffs be allotted one such share;
that the plaintiffs do bear their own costs and the 5th defendant do bear his own costs; that
the plaintiffs be entitled to mesne profits for their 1/3rd share from 5th defendant in suit
survey numbers for which the plaintiffs shall file a separate petition to ascertain the mesne
profits. "from the above, it is quite clear that the plaintiffs in that suit were allotted 1/3rd
share and 2/3rd share as such was not made the allotment to the 5th defendant, who is the
plaintiff in this suit. Therefore, it is manifest that there was no executable decree against
the 5th defendant which could be said to operate as res judicata against the later suit filed
by him. It is equally evident from the aforesaid decree that the mesne profits were granted
to the plaintiffs in the earlier suit to the extent of their 1/3rd share and there is nothing in
regard to the mesne profits in respect of the rest of the 2/3rd share. Under these
circumstances I have no hesitation to hold that the present suit by the plaintiff herein, who
was the 5th defendant in the earlier suit, is maintainable, in respect of the 2/3rd share
which he is now claiming, without however affecting adversely the 1/3rd share, which was
already determined and decreed under the preliminary decree passed in the earlier suit in
favour of the plaintiffs therein who are the defendants herein. It may equally be
emphasised as it is clear from the preliminary decree passed in the earlier suit that the
plaintiff herein shall not be entitled to any mesne profits against the defendants herern,
who were the plaintiffs in the earlier suit.

( 7 ) A preliminary decree is therefore passed only for partition and separate

possession of the 2/3rd share in the suit schedule land by metes and bounds and the relief
in so far as the mesne profits is concerned, is dismissed.

( 8 ) IN the result, the Second Appeal is partly allowed, but in the circumstances, the
parties are directed to bear their own costs through- out.