AS/1843/1993 of CH.SUBUDHI Vs CH.PRABUDAS AND 4 OTHERS on 1 September 1995

JUDGMENT:-

The appellant is the 2[nd] respondent/2[nd] defendant in I.A.No.226of 1988 in O.S.No.89 of 1987 on the file of the Subordinate Judge,Pithapuram. Respondents No.1 and 2 herein were the plaintiffswhereas the 3[rd] respondent was the 1[st] defendant. Respondents 1and 2/plaintiffs filed I.A.No.226 of 1988 under Order XX Rule 12 ofC.P.C. for passing a final decree in terms of the preliminary decreepassed in the suit. Through Order, dated 20-04-1992, the learnedSubordinate Judge passed the final decree in terms of the preliminarydecree and allotted portions marked as ‘A’ and ‘C’ to the plaintiffs andto deliver possession to them. The trial Court further directed that thedefendants should pay future mesne profits @ Rs.100/- per month toeach of the plaintiffs from the date of the suit viz., 13-03-1984 till thedelivery.

2. Aggrieved by the said order, the 2[nd] defendant/respondent No.2filed the appeal contending that the final decree passed by the trialCourt is incorrect, that the Court should have seen that the plaintiffs arenot entitled to delivery of possession of ‘A’ and ‘C’ portions as they do not have a right to possess the same, that the Court should haveaccepted the case of the appellant that one V.Annapurnammaexecuted a will, dated 09-03-1950, giving life interest to the 3[rd]respondent -1[st] defendant and since she is still alive, the plaintiffs arenot entitled to delivery of possession of ‘A’ and ‘C’ portions. It is furthercontended that the learned Judge should have seen that the plaintiffshave no present right to possess the property. It is lastly submitted thatthe appellant-D.2 has filed O.S.No.30 of 1991 on the file of theSubordinate Judge, Pithapuram, against the plaintiffs and D.1 fordeclaring that the Judgment and Decree in the present suit bearingO.S.No.89 of 1987 was obtained by fraud and therefore invalid. Hence, the appeal.

3. Learned Counsel for the respondents-plaintiffs submits that thefinal decree passed by the trial Court is in accordance with thepreliminary decree, which has become final, and the contentions thatare raised by the appellant-D.2 cannot be raised in the proceedingsinitiated for passing of a final decree. The learned Counsel furthersubmits that so long as the final decree is in accordance with thepreliminary decree, which became final, the Court cannot adjudicateany other controversies, which have already been adjudicated in thesuit at the time of trial. It is further submitted that in pursuance to thepassing of the final decree, E.P. was filed and the plaintiffs have beenput in possession of the schedule property on 17-05-2013 and 03-07-2013.

4. The point for consideration is as to whether the Judgment underappeal is in accordance with the preliminary decree passed in the suitor whether it needs to be set aside, modified, or, varied?

5. Point:- Admitted facts are that the plaintiffs, who are respondentsNo.1 and 2 herein, have filed the suit for partition, which wasregistered as O.S.No.89 of 1987, as long back as on 13-03-1984. The plaint schedule property comprised of the property bearing doorNo.10-1-37 together with open site situated at Pithapuram, East

Godavari District. The suit was decreed on 23-07-1987 dividing thesuit property into three shares and allotting two shares to the plaintiffs. Thereafter, the plaintiffs filed I.A.No.226 of 1988 for passing of a finaldecree. On contest, the said application was allowed and initially anAdvocate-Commissioner was appointed for dividing the scheduleproperty by metes and bounds. The Advocate-Commissioner madesuit property into three portions and identified them as ‘A’, ‘B’ and ‘C’. In the trial Court, lots were drawn in the presence of the parties, inwhich, the portions marked as ‘A’ and ‘C’ were allotted to the shares ofthe plaintiffs. Thereafter, the proceedings were initiated for delivery ofpossession. E.P.No.24 of 2002 was filed. After obtaining necessaryorders, with the aid of the Ameen of the Court, the possession of theschedule property was delivered to the plaintiffs on 17-05-2013 and03-07-2013 under panchanama through the process of Court.

6. The appellant herein is the 2[nd] defendant. She filed the suitsubsequently bearing O.S.No.30 of 1991 against the plaintiffs forsetting aside the Judgment and Decree in O.S.No.89 of 1987 ashaving been obtained by fraud and misrepresentation. That suit wasdismissed and became final. The grounds that were urged in thepresent appeal were raised in the suit filed by the appellant-D.2, whichstood dismissed on 07-06-1993. Once again, similar objections wereraised by the appellant-D.2 at the time of passing of the final decree. Those objections were considered and negatived by the trial Court.

7. When a preliminary decree was passed on 23-07-1987, itappears that no appeal there against was preferred. Instead ofcarrying the matter in appeal, the 2[nd] defendant in the suit has filed anindependent suit to declare the decree as null and void. That suit wasdismissed. As per Section 97 of C.P.C., no appeal can be entertainedquestioning the correctness of the final decree when the preliminarydecree was not challenged by way of any appeal. At the time ofpassing of the final decree, what is required to be seen is that it shouldbe strictly in accordance with the preliminary decree that was granted.

The objections that were raised before the trial Court as well as in thepresent appeal are outside the scope of the enquiry contemplatedunder the Code of Civil Procedure at the time of passing of the finaldecree. The objections that were raised at the time of passing of thefinal decree, which are reiterated in the present appeal are that oneAnnapurnamma executed a will on 09-03-1950 giving life interest tothe 3[rd] respondent/1[st] defendant and since she is alive, thepossession of ‘A’ and ‘C’ portions cannot be delivered to the plaintiffs. The other objection is that the plaintiffs have no right to possess ‘A’and ‘C’ portions of the schedule property. These objections are clearlyoutside the purview of the enquiry at the time of the passing of the finaldecree. Those are the issues, which are to be raised at the time of thetrial of the suit or in the appeal. As already stated, instead of doing thatthe appellant-D.2 has filed an independent suit wherein she raised thesimilar contentions and which were negatived by the Court inO.S.No.30 of 1991, which was dismissed on 07-06-1993. Once againthe self-same objections cannot be raised or sustained. Therefore, thetrial Court has rightly discussed the same and rejected the objections. 8. With regard to the mesne profits, the appellant contends that theplaintiffs are not entitled to the same. After due enquiry by theAdvocate-Commissioner and ascertaining the prevailing market value,the mesne profits were fixed at Rs.100/- per month from the date of thesuit till the possession was delivered. This is based on proper enquiryconducted by the Advocate-Commissioner as approved by the trialCourt.

9. Upon consideration of the entire material on record, I see nosubstance in the contentions raised by the appellant. It is not open tothe appellant to question the correctness of the preliminary decree atthe time of enquiry for passing of the final decree. There are no meritsin the appeal and the same is liable to be dismissed.

10. The respondents/plaintiffs filed A.S.M.P.No.485 of 2014 toreceive the certified copy of the proceedings in E.P.No.24 of 2002

together with the report of the Ameen. It is no doubt true that they arethe certified copies of the Court proceedings, but since they are inrespect of the same litigation, the certified copies thereof need not bereceived by way of additional evidence. The entire record includingthe original record the certified copy which is sought to be filed, is partof the record and the same has been perused. Therefore, I see noreason to admit the certified copies of the E.P. proceedings by way ofadditional evidence. The petition is dismissed.

11. In the result, the appeal and A.S.M.P. are dismissed. There shallbe no order as to costs.

Date:- 20-06-2014

smr

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M.S.K.Jaiswal, J