In the teeth of the aforesaid background wherein the final decree has been confirmed right upto the Apex Court and where the orders passed on the earlier applications invoking section 47 of the Code of Civil Procedure by the respondent No. 1 and said Mrs. Anita Khetan had become final, the question which begs an answer is whether the subsequent applications filed invoking section 47 of the Code of Civil Procedure by the respondent Nos. 1 and 2 were maintainable. The answer has to be an emphatic 'no'. The trial Court in entertaining the said applications has totally glossed over the earlier round of litigation between the parties, which insofar as final decree proceedings are concerned, ended with the special leave petition filed by the respondent No. 1 being dismissed and insofar as application invoking section 47 of the Code of Civil Procedure had finally culminated in view of no further challenges to the orders passed in the earlier applications filed by the respondent No. 1 and said Mrs. Anita Khetani. What the trial Court has done by the impugned order is to reopen the final decree proceedings by ordering a fresh Commission for partitioning of the property in question. The same, in my view, cannot be countenanced in the background of the facts as narrated above.
IN THE HIGH COURT OF BOMBAY
W. P. No. 987 of 2011
Decided On: 13.07.2011
Premlata s/o. Ramlal Shahu and another
Vs.
Chandrakant s/o. Gayaprasad Shahu and another
Vs.
Chandrakant s/o. Gayaprasad Shahu and another
Coram:
R.M. Savant, J.
R.M. Savant, J.
1. Rule, with the consent of the learned Counsel for the parties made returnable forthwith and heard.
2. The above petition takes exception to the order dated 2-2-2011 passed by the learned 4th Joint Civil Judge, Senior Division, Nagpur whereby applications (Exhs. 61 and 66) filed by the respondent Nos. 1 and 2 herein came to be allowed and direction came to be issued for appointing a fresh Commission for partitioning the suit properties amongst the decree holders and the judgment debtors in terms of the preliminary decree.
3. The facts in the above petition exemplify the manner in which a decree, which has been passed as long back as on 30-9-1991, is sought to be stalled on one pretext or the other though the same has been confirmed right upto the Apex Court. The petitioners herein are the heirs of one Ramlal Sheoratan Shahu whereas respondent Nos. 1 and 2 are the heirs of Ramdin Shahu and they all claim their shares through a common ancestor Sheoratan Shahu.
4. Ramlal Sheoratan Shahu had filed Special Civil Suit No. 123/1973 for partition and possession of his l/4th share in the ancestral property. On the death of said Ramlal, the said proceedings were continued by the petitioner No. 1 along with her sister, i.e. Shakuntala wd/o Shankarlal Shahu. The said Special Civil Suit No. 123/1973 came to be decreed on 30-9-1991 to the extent of share of the petitioners herein and the Commissioner came to be appointed to effect and deliver the l/4th share in the house property. The said decree was challenged by the heirs of Gayaprasad Shahu by filing Regular Civil Appeal No. 322/1992 on 14-8-1992. The first Appellate Court dismissed the said Regular Civil Appeal No. 322/1992 by judgment and order dated 28-1-2007. During interregnum, the petitioners filed final decree proceedings in respect of the preliminary decree dated 30-9-1991. In the said final decree proceedings, one Advocate S. G. Potey was appointed as a Commissioner by order dated 25-3-1996 to effectuate the division of the property so as to carve out the l/4th share of the petitioners in the said ancestral property.
5. The Commissioner submitted his report on 1-12-2000 and the said report inter alia mentioned the share, which was to be allotted to the petitioners. In terms of the said report, property in possession of the respondent No. 1, i.e. house property situated at Croddack Road bearing House No. 916, Serial No. 118, was allotted to the share of the petitioners/decree holders. The said Commissioner's report went unchallenged and the trial Court by its order dated 4-10-2007 accepted the said Commissioner's report, which was marked as Exh. 47. From this stage, two divergent routes were taken by the respondents to the above petition. Insofar as respondent No. 1 was concerned, he filed an Appeal challenging the order dated 4-10-2007 passed in the final decree proceedings accepting the Commissioner's report. The said Appeal filed on 4-9-2008 challenging the order dated 4-10-2007 being belated, the respondent No. 1 filed Miscellaneous Civil Application No. 759/2008 for condonation of delay. The said Application came to be rejected by the learned District Judge by his order dated 21-11-2009. While rejecting the said Application, the learned District Judge observed that the conduct of the respondent No. 1 appeared to be intentional and deliberate to prolong the execution proceedings.
6. Against the said rejection of the Application for condonation of delay, respondent No. 1 preferred a Second Appeal in this Court being Second Appeal No. 15/2010. The said Second Appeal came to be rejected by this Court by a well reasoned order dated 7-7-2010. This Court observed that mere was no need to interdict with the order passed by the learned District Judge in the facts and circumstances of the case. Against the order dated 7-7-2010 dismissing the Second Appeal, the respondent No. 1 filed Special Leave Petition before the Apex Court being Special Leave Petition No. 21426/2010, which was dismissed by the Apex Court on 9-8-2010. Hence, insofar as the final decree proceedings were concerned, they were confirmed right upto the Apex Court.
7. It is required to be noted that whilst the respondent No. 1 was prosecuting the challenges to the final decree proceedings, the petitioners had applied for execution of the final decree by filing execution proceedings on 1-2-2008 and had sought warrant of possession only in respect of the property on Croddack Road, which is in occupation of the respondent No. 1. The said execution proceedings came to be registered as Special Darkhast No. 46/2008. In the said proceedings, the respondent No. 1 filed an Application (Exh. 18) under section 47 of the Code of Civil Procedure on 17-9-2008. In the said Application, the respondent No. 1 inter alia prayed that his share in the ancestral property has not been demarcated and as such, he claimed demarcation of his share. The petitioners filed their reply to the said application on 29-12-2008. The trial Court by its order dated 6-3-2009 rejected the Application of the respondent No. 1 filed under section 47 of the Code of Civil Procedure.
8. The matter did not rest there. Another heir of late Shri Gayaprasad Shahu, i.e. sister of respondent No. 1 M/s. Anita Khetani filed an Application in the said Special Darkhast No. 46/2008 on 27-4-2009. The said Application was also replied to by the petitioners and by order dated 27-4-2009, the trial Court rejected the said Application filed by Mrs. Anita Khetani. Significantly, the said order dated 6-3-2009 rejecting the Application filed by the respondent No. 1 and the said order dated 27-4-2009 rejecting the Application of Mrs. Anita Khetani were not challenged and have become final and binding.
9. Much after culmination of the above proceedings, the respondent No. 1 again filed an Application in the said execution proceedings i.e. Special Darkhast No. 46/2008 invoking section 47 of the Code of Civil Procedure. The said Application was registered as Exh. 61. In the said Application, the principal relief sought by the respondent No. 1 was to recall warrant of possession, set aside the decree of the trial Court and appoint a new Commissioner for demarcation and partition of the ancestral property of all the co-sharers including respondent No. 1. The petitioners filed reply to the said application and inter alia adverted to the proceedings, which had been filed right after final decree proceedings, which had culminated in the order dated 4-10-2007, which has been confirmed right upto the Apex Court. The petitioners contended that in the background of the said facts, no relief could be granted to the respondent No. 1. Pertinently the respondent No. 2 also filed an Application in the execution proceedings on 18-10-2010 seeking a direction to the respondent No. 1 to supply a copy of the application (Exh. 61) to her. The said Application of the respondent No. 2 came to be rejected by the trial Court by order dated 18-10-2010 on the ground that since no proceedings have been initiated against respondent No. 2 and since no relief is sought against her, she has no locus in the matter. However, the respondent No. 2 thereafter herself filed an Application under section 47 of the Code of Civil Procedure inter alia claiming the same relief as claimed by the respondent No. 1. The said Application was marked as Exh. 66. The respondent No. 2 in the said application claimed to be a divorcee and claimed to be in possession of the suit property along with entire family of Gayaprasad Shahu and claimed the relief of reopening of entire judgment and decree both preliminary and final, which had attained finality upto the Apex Court.
10. The said Applications (Exhs. 61 and 66) were considered by the trial Court and by the impugned order dated 2-2-2011, came to be allowed. In allowing the said Applications, the trial Court has directed appointment of a fresh Commission for partitioning the suit property amongst the decree holders and the judgment debtors in terms of the preliminary decree at the cost of the applicants/objectors. The gist of the reasoning of the trial Court as can be culled out from the impugned order is that in a suit for partition, every co-owner, whether a plaintiff or defendant, is as good as a plaintiff and no Court can say that only the share of the plaintiff could be carved out and the rest of the owners should fight a separate battle.
11. As indicated above, it is the said order dated 2-2-2011, which is impugned in the present petition.
12. Heard the learned Counsel for the parties. The principal contention of the learned Counsel for the petitioners Shri Sundaram was that since final decree proceedings have attained finality inasmuch as the same having been confirmed right upto the Apex Court, it was not open for the trial Court to direct a fresh Commission for partitioning the scheduled properties. This, according to the learned Counsel, would amount to re-opening the issues, which are settled. The learned Counsel for the petitioners would contend that in the teeth of the fact that the earlier Applications filed by the respondent No. 1 and Mrs. Anita Khetani having been rejected, it was not open for the same parties to file fresh Applications (Exhs. 61 and 66) for the same purpose. The learned Counsel would contend that insofar as the impugned order is concerned, the trial Court has glossed over the orders passed by this Court and Apex Court as well as earlier orders passed by the trial Court in the Applications under section 47 of the Code of Civil Procedure filed by the respondents and without adverting to the said facts, has allowed the said Applications (Exh.61 and 66). The learned Counsel would contend that the trial Court failed to appreciate that the petitioners, who have a decree in their favour, which was passed as long back as on 30-9-1991, are yet to get the fruits of the decree as execution of the decree is sought to be stalled by the respondents on one pretext or the other. The learned Counsel would contend that since l/4th share, which is to come to the petitioners/plaintiffs; has already been identified in the final decree proceedings, by virtue of the order dated 4-10-2007, it was not open for the trial Court to mix up the said issue with demarcation of the shares of the respondents as the respondents have an independent right to file proceedings for effecting partition of their respective shares.
13. On behalf of the respondent Nos. 1 and 2, learned Counsel Shri Moon and Shri Tiwari made submissions on the legality, validity and propriety of the decree dated 30-9-1991. The principal contention of the learned Counsel was based on the judgment of the learned Single Judge of this Court in the matter of Vijaysingh Rajasingh Verma vs. Smt. Vishinkumari Udaysingh Varma and others, MANU/MH/0445/1988 : 1989 (2) Bom.C.R. 139 wherein the proposition is laid down that in a suit for partition, every co-owner, whether a plaintiff or defendant, is as good as plaintiff and no Court can say that only the share of the plaintiff should be carved out and rest of the co-owners should fight a separate battle. It is the submission of the learned Counsel for the respondent Nos. 1 and 2 that carving out of the l/4th share of the petitioners/plaintiffs out of the six properties is prejudicial' to the respondent Nos. 1 and 2 as they have been residing in the suit property and would be adversely affected if the warrant of possession, which has been issued in the execution proceedings is executed. The learned Counsel would contend that in the present petition also, other members of the family have not been joined and it is only the applicants, who have filed Applications (Exhs. 61 and 66) have been joined as parties to the above petition and that presence of other family members would be necessary for adjudication of the above petition.
14. I have heard the learned Counsel for the parties and bestowed my anxious consideration to the rival contentions. In the instant case, as can be seen from the facts as discussed above, the suit in question being Special Civil Suit No. 123/1973 came to be decreed as long back as on 30-9-1991. The said decree was challenged by the heirs of Gayaprasad Shahu by filing Regular Civil Appeal No. 322/1992, which Appeal came to be dismissed by the first Appellate Court by judgment and order dated 28-1-2007 and, therefore, insofar as the said decree is concerned, there being no further challenges, the same has become final and binding.
15. Insofar as final decree is concerned, in the said final decree proceedings, a Commissioner came to be appointed on 25-3-1996. It is pertinent to note that the appointment of the Commissioner was also not taken exception to. The Commissioner accordingly submitted his report on 1-12-2000 in respect of the partition of the property so as to carve out the l/4th share of the petitioners. The said report (Exh.47) was accepted by the trial Court by its order dated 4-10-2007. It is pertinent to note that the respondent No. 1 did not initially question the l/4th share allotted to the petitioners in the said report, but had only asked for demarcation of his share by filing an Application on 17-9-2008, which came to be rejected by the trial Court on 6-3-2009. It is further pertinent to note that the respondent No. 1 herein challenged the final decree proceedings by filing an Appeal in the Appellate Court. However, since the Appeal filed was belated, the respondent No. 1 had filed an Application for condonation of delay, which as mentioned in the earlier part of this judgment, was rejected by the first Appellate Court, against which the respondent No. 1 had filed a Second Appeal bearing No. 15/2010, which came to be dismissed by this Court by order dated 7-7-2010 against which dismissal, the respondent No. 1 had filed Special Leave Petition before the Apex Court, which came to be dismissed by an order of the Apex Court dated 9-8-2010 and, therefore, insofar as final decree proceedings are concerned, they have also become final as a consequence of the dismissal of the Special Leave Petition filed by the respondent No. 1 by the Apex Court. Not only this, the respondent No. 1 and Mrs. Anita Khetani had challenged the order dated 4-10-2007 passed by the Executing Court, which challenges were rejected by the Executing Court by two separate orders. Significantly the said orders were not challenged by either respondent No. 1 or said Mrs. Anita Khetan and have, therefore, also become final and binding.
16. In the teeth of the aforesaid background wherein the final decree has been confirmed right upto the Apex Court and where the orders passed on the earlier applications invoking section 47 of the Code of Civil Procedure by the respondent No. 1 and said Mrs. Anita Khetan had become final, the question which begs an answer is whether the subsequent applications filed invoking section 47 of the Code of Civil Procedure by the respondent Nos. 1 and 2 were maintainable. The answer has to be an emphatic 'no'. The trial Court in entertaining the said applications has totally glossed over the earlier round of litigation between the parties, which insofar as final decree proceedings are concerned, ended with the special leave petition filed by the respondent No. 1 being dismissed and insofar as application invoking section 47 of the Code of Civil Procedure had finally culminated in view of no further challenges to the orders passed in the earlier applications filed by the respondent No. 1 and said Mrs. Anita Khetani. What the trial Court has done by the impugned order is to reopen the final decree proceedings by ordering a fresh Commission for partitioning of the property in question. The same, in my view, cannot be countenanced in the background of the facts as narrated above. There can be no quarrel with the proposition of law as enunciated in the judgment in Vijaysingh Rajasingh Varma's case (supra). However, in the teeth of the background of the facts as mentioned hereinabove, wherein the final decree has become final and now what remains to be done is only handing over possession to the petitioners, the judgment in Vijay Singh Rajasingh Verma's case (supra) would have no application.
17. Insofar as contention of the learned Counsel for the respondent Nos. 1 and 2 that only the applicants, who had filed applications (Exhs. 61 and 66) have been joined as parties and in absence of other family members, the above petition cannot be adjudicated, in my view, the said contention is thoroughly misconceived. The applications (Exhs. 61 and 66) have been filed by the respondents wherein the impugned order came to be passed and, therefore, it is the said respondents, who are required to be joined as parties to the petition. Insofar as other members of the family, who have share in the ancestral properties are concerned, as observed by the trial Court in the order dated 4-10-2007, it would be open for them to file independent proceedings for partitioning the said ancestral property, which is left out after carving out the l/4th share of the petitioners, which I am informed by Shri Sundaram have already been filed, which can be deciphered from para 1 of the application (Exh. 66), i.e. application filed by the respondent No. 2.
18. In that view of the matter, the above petition would have to be allowed and is accordingly allowed. The impugned order dated 2-2-2011 is set aside.
19. Rule is accordingly made absolute in terms of prayer clause (i) of the petition. No order as to costs.
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