Or.39, rule 1 & 2 C.P.C. - suit for set aside preliminary and final partition decrees and also for injunction - Interim Injunction - Purchased property - Claimed fully demarked and separated with the unsold share of defendant with his consent only - Partition suit by defendant with out impleading the plaintiffs in respect of suit property is not valid and binding on the plaintiffs - Trail court granted interim injunction and appeal dismissed - Revision to High court - Their lordships held that preliminary decree and final decree can not be kept aside from consideration like wise specfic demarcation and separation records of sold extent with unsold extent of defendant with the consent of defendant can not be kept aside - directed to appoint an advocate commissioner to find out whether the suit schedule property is a demarked property or covered with the unsold extent of defendant and if it is demarked the plaintiff is entitled for injunction otherwise not - Without identifying the property no interim injunction should be granted - 2015 A.P.(2005) MSKLAWREPORTS


 The petitioner filed O.S.No.77 of 2000 in the Court of Junior Civil Judge,
Narsapur, Medak District against respondents 5 to 12 for the relief of partition
and separate possession.  An ex parte preliminary decree was passed therein and
subsequently, a final decree was passed on 4.12.2003 in I.A.No.426 of 2001
demarcating an extent of Ac.18.29 guntas.

 Respondents 1 to 4 filed the present suit, being O.S.No.23 of 2004 for
setting aside the preliminary and final decrees passed in O.S.No.77 of 2000.
They pleaded that the suit was filed in collusion with the defendants therein
and without impleading them, with a sole object of defeating their rights.
They
contended that on the strength of the preliminary and final decrees, the
petitioner is encroaching into the land purchased by them and prayed for
temporary injunction; by filing I.A.No.84 of 2004. The application was resisted
by the petitioner herein.
The trial Court granted  temporary injunction and it was affirmed in the C.M.A.

 Points Raised
  •  The Petitioner retained his share of the property 
  • it was always open to him to seek partition of the joint family properties against his brothers as well as their purchasers.  
  • Court could not have ignored the preliminary and final decrees, till they were set aside and that the order of temporary injunction cannot be sustained in law. 
  • even otherwise, respondents 1 to 4 do not have any right against any land other than the one purchased by them from respondents 8 to 12.
Objections Raised
  •  the very filing of a suit for partition by the petitioner was impermissible inasmuch as the property retained by the petitioner was clearly indicated and demarcated, when his brothers sold their share of the land in favour of respondents 8 to 12.
  • though respondents 1 to 4 purchased the land from respondents 8 to 12 way back in the
    year 1995, and their names were entered in the revenue records, the petitioner
    did not choose to implead them in the suit for partition
  • the land purchased by respondents 8 to 12 was clearly demarcated with the consent of
    the petitioner and the question of the petitioner seeking partition of such land
    or allocation of any portion thereof towards his share does not arise.
conclusion
  • five sons of Thummu Marrireddy, four have sold their share of property in favour of respondents 8 to 12 in the year 1987. 
  • The petitioner who retained his share, figured as party to the sale deed with a view to endorse the transactions. 
  • Totally different things would have ensured, if it were to be a case where the brothers of the petitionerhad alienated their undivided share in the joint property. In such an event, the purchaser could have acquired, only a right to seek partition, and not an absolute and independent right over any definite extent of the property.   
  • Insuch an event, the rights of the parties to the sale would have been governed by Section 44 of the Transfer of Property Act.  
  • A perusal of the sale deeds marked as Exs.A.1 to A.11 discloses that the property sold in favour of respondents 8 to 12 on the one hand and the one retained by the petitioner were demarcated.
  • Therefore, it is debatable whether a suit for partition can be filed in respect of the lands covered by Exs.A.1 to A.11.   
  • Having figured as a party in Exs.A.1 to A.11, the petitioner cannot take any steps contrary to the same.
  • That however is a matter which needs to be dealt with, during the trial of the suit.
  • The validity or otherwise of the preliminary and final decrees passed in
    O.S.No.77 of 2000 is a matter to be dealt with at the time of final hearing of
    the suit. Till they are set aside in accordance with law, they cannot be
    ignored.                                                                                                                                        
    .
  • At the same time, under the guise of such decrees, the petitioner cannot be permitted to act contrary to the recitals contained in Exs.A.1 to A.11, in which he figured as an executant.
The trial Court shall appoint a Surveyor-Commissioner by
choosing a senior officer from the department of Survey and Land Records as well
as an Advocate-Commissioner to verify and submit a report -
a) Demarcating the land covered by the documents-Exs.A.1 to A.112 on the one
hand and Exs.A.12 to A.22 on the other.   The fact as to whether both are one
and the same or if there is any variation shall be indicated in the report as
well as on the map.
b) Indicating whether the land said to be in possession of the petitioner on the
basis of a final decree passed in O.S.No.77 of 2000 forms part of the land
covered by the sale deeds-Exs.A.1 to A.11 and if so, the portion thereof with
clear demarcation.
        In case, the petitioner is found claiming any portion of the land covered
by Exs.A.1 to A.11, respondents 1 to 4 shall be entitled to be granted temporary
injunction to that extent.  It is obvious that if no such overlapping is
noticed, there does not exist any necessity to grant any temporary injunction.- 2015 A.P.(2005) MSKLAWREPORTS

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