Separate Partition Suit After 90 Years When Possession Is Not Delivered As Per Preliminary & Final Decree Is Not Maintainable: Karnataka HC

A bench of Justice HP Sandesh after perusing Section 47 of CPC, observed, “…it is clear that when there was a decree between the parties and relating to the execution, discharge of satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. In the case on hand, already there was a decree in respect of the Munireddy’s share and pleading of the plaintiff also clear that share has been determined and final decree also was drawn on 14.5.1928 and instead of executing the final decree by filing execution petition, a separate suit is filed before the Court and hence, it is clear that it is nothing but clever drafting of the plaint while filing the suit for the relief of seeking once again for partition”.

In the present matter, one Nanjareddy had three sons, Ramareddy, Lingareddy and Munireddy and there was a family partition amongst the members of the Nanjareddy Family through an order dated October 8, 1923, which got culminated in Final Decree proceedings dated May 14, 1928.

The shares of the respective parties therein were determined and definite shares were allotted to the parties as per the schedule.

The plaintiff here in the matter falls in the branch of Munireddy who had three sons and plaintiff is the grandson of Nanjunda S/o Munireddy. Late Munireddy got a definite share as per the judgment and decree and FDP proceedings and the said Munireddy died during the pendency of the suit leaving behind his three sons without getting an inch in suit schedule property towards his share of 1/3rd which was declared by the Court towards his legitimate share.

The declaration remained unassailed in the preliminary decree which too came to be culminated in the Final Decree Proceedings and as per the averments made there was a cordial relationship with the parties and possession was continued with Ramareddy and its members. They bonafidely believed them as there was no room for suspicion and their behavior also never raised any doubts in the minds of the plaintiffs’ family. But now since they declined to give a share, therefore, the petitioner filed a suit for the relief of partition of 1/3rd legitimate share.

The defendants then filed an application under Order 7 Rule 11 of CPC for rejection of plaint contending that suit is barred by law.

The trial court then in the matter considering the contentions and also the grounds urged in the application and statement of objections filed by the plaintiff came to the conclusion that Section 47 of the CPC does not attract and also the suit is not barred by limitation.

However, while referring to Canara Bank Vs. P.Selathal and Others 2020 SCC OnLine SC 245, the bench was also of the opinion that it is nothing but clever drafting to file the suit for the relief of partition once again. Further that the same being illusory, there was nothing to determine since the suit has been decreed and final decree has been passed, and that only enforcement of the decree was pending even according to the contention of the plaintiff.

“When such being the case, in order to avoid the limitation for execution of the decree, the present suit is filed once again seeking for the relief of partition and hence, there is a force in the contention of the counsel for the revision petitioner that there is no cause of action to file a suit and even on perusal of the plaint also, cause of action is pleaded of the year 1923 and 1928 and subsequently demands as and when made by the plaintiff’s family repeatedly, and also when plaintiff met defendant Nos.4 to 11 along with well wishers and when the defendant denied in 2018 and no specific averment is made and also no question of making any demand, when already there was a decree, there is a preliminary decree and final decree, as stated in paragraph No.10 of the plaint itself mentioned in the cause of action and when such being the case, it is a fit case as observed by the Apex Court that in order to bring the suit within the law of limitation once again for the relief of partition, the same has not been examined by the Trial Court”, the bench further noted in the judgment.

Cause Title: P. Ramaprasad v. Thyagaraj R.

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