Direction For Demolition Of Already Constructed Buildings In Preliminary Decree May Not Be In Interest Of Any Party: SC Modifies Preliminary Decree, Orders Expeditious Disposal Of Suit
The Supreme Court has modified a Trial Court's preliminary decree in a partition suit which was slightly modified by the Bombay High Court holding that demolition of the already constructed buildings may not be in the interest of any of the parties as the same can be considered at the time of passing of final decree. The Court also held that there was no justification to interfere in the matter as the final decree for partition, which would divide the property by metes and bounds, was yet to be passed. These orders pertained to a civil suit filed by widow of appellant, seeking declaration, partition, and separate possession of the family property. In the suit, counterclaims were filed by defendant nos. 1, 4 to 8.
The Supreme Court observed, “demolition of the already constructed buildings may not be in the interest of any of the parties as the same can be considered at the time of passing of final decree, with reference to the construction, authorised by the local authority. We are not expressing any opinion on the construction raised unauthorisedly”.
The Trial Court had passed a preliminary decree in 2012, determining the shares of the plaintiff and defendant nos. 1 to 8. The defendants were restrained from alienating the property until partition took place. Defendant no.9, the appellant in the case, was found to have no right, title, or claim in the property and was directed to demolish unauthorized constructions.
A two judge Bench of Justice Vikram Nath and Justice Rajesh Bindal held, “in our view, the order passed by the Trial Court passing the preliminary decree in a partition suit as upheld by the High Court, does not deserve interference by this Court as admittedly there is no challenge to the same by any of the co-sharers (family members) of the property in dispute with reference to their respective shares. The final decree is yet to be passed. At that stage the property will be divided by metes and bounds.”
Senior Advocate Dama Seshadri Naidu appeared for the Appellant and Senior Advocate C.U. Singh appeared for the Respondents.
The appellant, who was not a family member but claimed rights through some co-sharers, contested the preliminary decree, arguing that he had acquired rights to a share transferred by respondent no.2. The High Court had upheld the Trial Court's order with a modification, directing only defendant nos. 2 and 9 to demolish unauthorized constructions.
The Supreme Court held that the Trial Court's preliminary decree, as upheld by the High Court, did not require interference. The Court emphasized that no co-sharer (family member) had challenged the preliminary decree regarding their respective shares. The final decree for partition was yet to be passed, during which the property would be divided by metes and bounds. The appellant's concerns about the transferred share could be addressed at that stage, and any property in possession of co-sharers could be protected.
Therefore, the Supreme Court modified the High Court's orders to the extent mentioned above and disposed of the appeals. The Trial Court was directed to expedite the case's disposal, clarifying that the Supreme Court had not expressed any opinion on the merits of the controversy.
Cause Title: M/s Multicon Builders v. Sumandevi & Ors.
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