Asmita Shikshan Mandal vs Leela Mahadeorao Deshpande & Ors.

Heard Mr. Bhangde, learned Senior Counsel assisted by Mr. Vaishnav, learned counsel for the petitioner, Mr. Bhandarkar, learned counsel for respondent No.1, Mr. Ghare, learned counsel for respondent No.2 and Mr. Kasat, learned counsel for respondent Nos.3 and 4.

In the present matter, considering the arguments advanced by the learned counsels for the respective parties before this Court, it would be necessary to consider the facts of the matter, which are summarized as under :-

The original plaintiff/respondent No.1-Sau. Leela Mahadeorao Deshpande filed suit for partition and separate possession in the year 1992, stating that she and original defendant No.1/respondent No.2, namely, Sau Rekha Wamanrao Marathe, decided to jointly purchase a plot. Accordingly, they purchased a plot situated within the limits of Municipal Corporation, Amravati City, Amravati, in Ward No.57, Mouza – Rajapeth, in the area known as Pannalal Nagar, Amravati, bearing Nazul Plot No.1/17, Sheet No.79-C, towards the Southern Side ½ plot admeasuring 92` X 30` total area 2760 square feet, from Sau. Archana Benarase, for a consideration of Rs.16,000/-vide registered Sale Deeds dated 31.07.1979 and 11.08.1981.

After purchasing of plot, the present respondent Nos.1 and 2, with an intention to start a school, established an Education Society which was registered as Asmita Shikshan Sanstha, Pannalal Nagar, Amravati. In pursuance of the same, have erected a temporary shed on the plot and as such, the said plot was given on rent to Asmita Education Society, Pannalal Nagar, Amravati .

In the year 1983-1984, due to differences of opinion between respondent Nos.1 and 2 on certain issues regarding Society/School, respondent No.1 left the Society. Thereafter, the respondent No.1 claimed her share in the plot admeasuring 1380 square feet, in view of the fact that respondent No.2 had utilized near about 1380 square feet of the plot for the Institute. According to respondent No.1, remaining half plot was lying vacant. Therefore, respondent No.1 claimed her share in the said vacant portion, which was vacant out of total area of 2760 square feet. The area of said plot was 1380 square feet.

Respondent No.1 alleged that present petitioner-Society, without obtaining her permission as well as the permission from Municipal Corporation, Amravati, had erected unauthorized construction over the suit plot. It is further stated that the President of the Society was the husband of respondent No.2 and they have in collusion with each other made the construction on the plot. The construction has been completed by the petitioner during the pendency of suit. On the basis of these submissions, respondent No.1 prayed for a decree for partition and separate possession of ½ share in plot, along with direction to petitioner to remove the construction erected on the suit plot by metes and bounds.

Respondent No.2 contested the suit by filing a written statement. It was stated that respondent No.1 has not properly described the suit property. It was further stated that properties i.e. two pieces of agricultural land which were jointly purchased by them in their names, has been the property of Asmita Shikshan Mandal, Pannalal Nagar, Amravati. Accordingly, the School building has been constructed over the suit plot and thus, the property is indivisible. It is further stated that the share of respondent No.2 as alleged was not in her possession. It was also stated that during the time of construction, no objection was raised by respondent No.1. Therefore, as the property is now indivisible, it cannot be divided by metes and bounds. The property purchased by them had been merged into the property of Asmita Shikshan Mandal. Respondent No.2, in her written statement further stated that the property was purchased jointly for the construction of School and the same was, therefore, constructed without executing any document of transfer, between them. It was further stated that respondent Nos.1 and 2 have relinquished their rights in the suit property.

In the background of above stated facts, the learned Trial Court by its judgment and decree dated 19.06.1996, partly decreed the suit. It was held that both respondent Nos.1 and 2 have half share each in suit property and directed the petitioner and respondent No.2 to pay an amount of Rs.40,000/- to respondent No.1 to the extent of her share.

Being aggrieved by the judgment of learned Trial Court, respondent Nos.1 and 2 have preferred separate statutory appeals bearing Regular Civil Appeal No.171 of 1996 and Regular Civil Appeal No.184 of 1996. The said appeals have been decided by judgment and decree dated 25.01.2002 wherein, the learned Appellate Court reverse the judgment of the learned Trial Court by observing that theory of relinquishment had not been supported by any evidence, so also, relinquishment cannot be there without a registered document.

The learned Appellate Court recorded the finding that the learned Trial Court should not have reached to the conclusion that the property was indivisible. According to him, as per report of the Commissioner (Exhibit 17) alongwith the map, it was difficult to accept that the property was indivisible. The map shows that the constructions are there on less than half portion of the suit property and the remaining portion is lying vacant. There was no document to show that the vacant land had been allowed to be used by the Institution. Hence, the said issue needs to be left for consideration to the Executing Court.

In respect of direction issued by the learned Trial Court to pay Rs.40,000/- to respondent No.1 by petitioner and respondent No.2, it is held that it is a domain of Execution Court to consider all these aspect. It is held that there are several modes of effecting an equitable partition such as by working out the price of shares. Respondent Nos.1 and 2 could have been asked to purchase the share of the either. So also, the Execution Court can put the entire property to auction to distribute the auction money equally, amongst respondent Nos.1 and 2. Therefore, the finding of the learned Trial Court to pay Rs.40,000/- to respondent No.1 was held as not justified in the matter.

The Regular Civil Appeal No.171 of 1996 filed by respondent No.1 was allowed and the Regular Civil Appeal No.184 of 1996 filed by the respondent No.2 was dismissed. The suit filed by respondent No.1 for partition and separate possession and other reliefs was decreed by directing the petitioner and respondent No.2 to deliver possession of half portion of the suit property to respondent No.1.

The judgment of the learned Appellate Court has attained finality as the same was confirmed up to the Hon’ble Supreme Court. Respondent No.1 has then filed an execution proceeding. In the said proceeding, respondent No.1 filed an application for appointment of City Engineer of Municipal Corporation, Amravati, as Commissioner to execute the decree for possession. The report of Commissioner dated 04.08.2010 was objected by the petitioner on the ground that the learned First Appellate Court, only issued direction to handover half of suit plot to respondent No.1, there is no specific order for demolition of construction or for giving vacant possession. The Commissioner can execute the decree but for that purpose it will be necessary to divide the property as per decree. There is no such decree by dividing the share by metes and bounds hence, in absence of such decree, opinion given by the Commissioner that partition of suit property if at all to be effected, it will require demolition of existing structure, which is contrary to the settled principles of law.

The learned Executing Court, by its order dated 08.10.2015, rejected the objection raised by petitioner by observing that vide report Exhibit 28, the Commissioner had expressed his opinion. But, thereafter, neither the City Engineer or respondent No.1 had taken any effective steps to know whether demolition of half portion of the suit property can be possible with the help of Municipal Corporation. It was recorded that the Court had not appointed the City Engineer for demolition of half portion of the suit property. He was only directed to inspect the property and submit his report. After inspection of the spot by City Engineer, Municipal Corporation, Amravati, the Court will decide the next policy in that regard. Hence, the report of the Commissioner, which was treated as an opinion, was not set-aside and objection raised by petitioner was rejected.

The order dated 08.10.2015 was subject matter of Writ Petition No.6689 of 2015 Asmita Shikshan Mandal Amravati Vs. Leela Mahadeorao Deshpande and Another, before this Court. However, when the writ petition was listed before this Court on 13.04.2017, no one appeared on behalf of petitioner. Therefore, the interim order granted on 14.12.2015 was vacated and further the learned Executing Court, was directed to proceed with the matter. Thereafter, the said petition was listed on 02.05.2017, a further order was passed directing the learned Executing Court to see that decree passed in the matter shall be executed. Unless, the decree get executed, the writ petition shall not be heard. The execution of decree shall be subject to the decision of the writ petition.

The orders dated 13.04.2017 and 02.05.2017 passed by this Court in Writ Petition No.6689 of 2015 Asmita Shikshan Mandal Amravati Vs. Leela Mahadeorao Deshpande and Another were challenged before Hon’ble Supreme Court of India in Civil Appeal Nos.3571 of 2020 and 3572 of 2020. The said appeals have been decided by order dated 02.05.2022, wherein the Hon’ble Supreme Court, has specifically observed, as under:-

During the pendency of proceedings before the Hon’ble Supreme Court of India, the petitioner further moved an application before the learned Executing Court vide Exhibit 51, to frame the issues as to whether the decree was executable due to existing construction on the suit property. The other application vide Exhibits 56 and 57 for amendment to the application and lead evidence in support of their application at Exhibit 51. The learned Executing Court, by order dated 07.07.2017, rejected the application filed vide Exhibit 51, 56 and 57.

Respondent No.1 – Judgment Debtor, thereafter, filed an application for issuance of possession warrant under Order XXI Rule 35 of the Code of Civil Procedure, 1908 (for short “CPC”) and for giving directions to the City Engineer, Municipal Corporation, Amravati, to demolish the construction and to execute the decree for possession. The petitioner stated before the learned Executing Court, that the previous report of the Commissioner, by which it was opined that the property was indivisible, in view of structure standing over the same and the subsequent report of City Engineer, that after the structure is demolished over the suit property, it can be divided into two parts, appears to be contradictory. However, the learned Executing Court, by holding that both the reports were concurrent on the terms that the structure over the suit property needs to be demolished and then property will be divisible, allowed the application filed by respondent No.1.

In this background, petitioner has filed present petition before this Court challenging the order dated 18.08.2017, issued by learned Executing Court in the matter. In the present case, the petitioner has raised various grounds. This Court, by an order dated 21.08.2017 granted interim protection by observing that, the impugned order in execution cannot be implemented since, orders of demolition of construction on the suit property in respect of which decree is passed is merely a preliminary decree of partition and hence, same cannot be executed. Accordingly, both the parties advance their legal submissions in the matter. According to petitioner, impugned decree is preliminary decree and rights of the parties are not finally determined. Per contra, as per respondents, decree being in final nature and share of respondents has been determined, same can be recovered by filing execution proceeding. According to them, there is no need of further determination of their rights over the suit property.

It would be relevant to note that basic distinction between preliminary and final decree, would be, in preliminary decree, the Court merely declares the rights and shares of the parties and leave rooms for some further enquiry to be held and pursuant to same rights of the parties finally determined incorporating such determination which is drawn by way of a final decree. It is also settled position of law that if the rights of the parties are finally determined and no further enquiry is required to be held for the purpose of completing the proceedings of partition, then there is nothing in law which prevents the Court from passing a final decree in the very first instance.

In view of the aforesaid legal position, the petitioner has advanced his arguments to demonstrate how the judgment of the learned First Appellate Court is in the nature of the preliminary decree. He has firstly pointed out from written statement of respondent No.2/defendant No.1 that the two plots were purchased and a temporary structure was erected for running a School. The property was in two pieces, purchased by respondent Nos.1 and 2 in their names jointly, and same was vest upon Asmita Shikshan Mandal i.e. the petitioner-Society. So also it is stated by present respondent No.2 in her written statement that she and original plaintiff/respondent No.1 had purchased the property for establishment of the School and had given the property to Asmita Shikshan Mandal, without making any document of transfer, out of love and affection, for the School. It is also stated that both respondent Nos.1 and 2 have relinquished their right in the said property. So also, stated that in view of the construction over the suit property, the same had become indivisible.

In the light of the aforesaid submission, the learned Appellate Court, while deciding the appeal by its judgment dated 25.06.2002, further recorded a findings that the direction of the learned Trial Court that the property was indivisible and same cannot be subjected to partition and thereby, direction by the learned Trial Court to respondent No.2 and the petitioner to pay Rs.40,000/- to respondent No.1 was not justified. It is held that it was not at stage at which learned Judge would have come to the conclusion that the property was indivisible. According to the learned Appellate Court, from the record produced by the parties, and more particularly, from the map, it is clear that there is a construction, on less than half portion and the remaining portion is lying vacant. There is no evidence to show that any lease is being created in favour of respondent No.2, or any document, by which the property had been allowed to be used by the petitioner-Institution. Hence, there was difficulty for the learned Judge to consider this aspect of the matter and accordingly, it was wrong on the part of the learned Trial Court to hold that the property is indivisible. According to the learned Appellate Court, this point should have been left for consideration to be decided by Execution Court.

It is further pointed out from the judgment of the First Appellate Court that the original plaintiff/respondent No.1 do not want to part with her ownership of the property, it was the domain of learned Executing Court to consider all these aspects, as there were several modes of effecting an equitable partition. Such as, both the parties would have been asked to purchase the share of the other, put the entire property to auction and distribute the auction money equally amongst original respondent No.1 and respondent No.2. Hence, there were various modes for effecting the partition and it was not proper on the part of the learned Judge, to direct that the petitioner and defendant/respondent No.2 should pay Rs.40,000/- to the plaintiff/respondent No.1.

In the light of these observations made by the learned First Appellate Court, while deciding the appeal, the learned First Appellate Court had only declared that plaintiff/respondent No.1 suit for partition and other reliefs stands decreed. The respondent No.2 and the petitioner were directed to deliver the possession of half portion of the suit property to the respondent No.1. But, it was not clarified which portion of the property comes in favour of respondent No.1 and which portion of the property comes in favour of respondent No.2. The mode of partition was also not disclosed in the order. All issues which are discussed in the body of the judgment are kept open. As such, considering the findings and the operative part of the order of the learned First Appellate Court, it is clear that judgment and decree was in the nature of a preliminary decree and the same needs to be modified by giving the exact mentioning the shares of the parties and only thereafter, the same can be executed.

The petitioner in support of his submissions has relied upon the following judgments of Hon’ble Supreme Court :-

It is pointed out that the as per the judgment of Phoolchand’ case (supra), there is no prohibition in the Code of Civil Procedure, 1908, for a Court to pass more than one preliminary decree, if circumstances justified the same. The relevant paragraph No.7 of the judgment is relied upon, which reads as under :-

In case of Rachakonda’s case (supra), it is pointed out that in a partition suit, the Court is require to define the shares of the parties, identify the joint properties which are to be partitioned, allocate properties to the parties as per their respective shares and put the parties in possession of properties allocated to them. All this is not done in a preliminary decree then, the final decree is required to be drawn.

The decree can be said final if it leaves nothing for future. The relevant observations are recorded in para Nos.6, 7, 8, 9 and 10, which reads as under :-

In the case of Renu Devi’s case (supra), the learned counsel for the petitioner has pointed out the distinction between the preliminary and final decree and also the procedure which is required to be followed under Order XX Rule 18 of the CPC. The relevant paragraph of this judgment would be para No.8, which reads as under :-

In the case of Bimal’s case (supra), it is pointed out that the decree may be both preliminary and final or partial preliminary or partial final, but what is executable is a final decree and not a preliminary decree, unless and until the finality is part of preliminary decree. The relevant paragraph of this judgment is para No.32, which reads as under :-

In the case of Bashiruddin’s case (supra), it is pointed out that as per the definition of the decree as stated in Section 2(2) of the CPC, the final decree proceedings are mere continuation of the preliminary decree proceedings and there is no executable decree unless the final decree proceedings are drawn. The relevant paragraph of the judgment is para No.6, which reads as under :-

One more judgment which is brought to my notice stating that the same is relevant to the facts of the present case is referred i.e. judgment of the Hon’ble Supreme Court in the case of Lakshmi Ram Bhuyan Vs. Hari Prasad Bhyan and Others reported in (2003) 1 Supreme Court Cases 197. In the said judgment, the Hon’ble Supreme Court has held that every judgment, whether of the learned Trial Court or of the learned Appellate Court, must clearly indicate the relief or reliefs to which the party has been found entitled, so that the self-contained decree confirming therewith can be drawn up. If the Court merely observes that the suit is decreed or the Appellate Court observe that the appeal is allowed without stating the reliefs to which successful parties entitled, it would amount to failure to discharge obligation imposed by the provisions of the CPC. Accordingly, it is clarified that the operative part of the judgment should be clear and precise, so that, in case objections are raised later, a bare reading of the judgment and the decree would be enough to show whether the two agree with each other. In the present matter, this proposition of law is found to be missing, after going through the operative part of the judgment of the learned First Appellate Court, which is reproduced above in the matter. It would be relevant to reproduce para Nos.10 and 11 of the said judgment, which reads as under :-

On the basis of the aforesaid legal position, it is stated that the facts of the present case falls under the purview of a preliminary decree and, therefore, the decree is not executable in the present matter. Consequently, the execution proceedings filed by the respondents are not maintainable.

Per contra, learned counsel for respondents strongly opposed the present petition. According to them, the judgment and decree passed by the learned First Appellate Court require no further consideration, as everything is clear from the judgment. He pointed out that the learned First Appellate Court has specifically ordered that the suit for partition and possession and other relief stood decreed and the respondent No.2 was directed to deliver the possession of half portion of the suit property to respondent No.1. According to him, in a suit property only the respondent Nos.1 and 2 are the claimants and therefore, half portion of the suit property if delivered to respondent No.1 then remaining half portion comes to share of respondent No.2. As such, according to him, there is no ambiguity in the judgment and decree passed by the learned First Appellate Court, has determined the rights of the parties. No further clarification is required in the matter.

In support of his submission, he has relied upon judgment of the Hon’ble Supreme Court of India in the case of the Kattukandi Edathil Krishnan and Another Vs. Kattukandi Edathil Valsan and Others reported in (2022) 16 Supreme Court Cases 71. In this judgment, the Hon’ble Supreme Court, while considering the distinction between the preliminary decree and final decree has observed that, if, after passing of the preliminary decree there is a dispute remains to be adjudicated, then, the learned Trial Court has to list the matter for taking steps under Order XX Rule 18 of the CPC. In the present case, however, the learned First Appellate Court did not take recourse to the procedure contemplated under Order XX Rule 18 of the CPC, nor did it direct the matter to be listed for taking further steps thereunder. Therefore, the judgment and decree dated 25.01.2002 is final in the matter.

Respondent No.1 also relied upon the judgment of the Hon’ble Supreme Court in the case of Jennifer Messias Vs. Leonard G. Lobo reported in MANU/SC/0489/2026, wherein, the Hon’ble Supreme Court has also considered what is preliminary decree and the final decree and in the said case also dealt with the earlier judgment of Hon’ble Supreme Court. In the said judgment, the execution proceedings filed by the party were directed to be restored, which was dismissed by directing to move an application under Order XX Rule 18 of the CPC. The Hon’ble Supreme Court held that, since subject matter therein cannot be partitioned by metes and bounds, the learned Trial Court was well within its jurisdiction in the proceedings with the bidding of the subject matter and apportioning half of the sale consideration between the parties. The relevant para No.17 of the said judgment is relevant and reads as under:-

Mr. Ghare, learned counsel for respondent No.2, supports the submissions advanced by the learned counsel for respondent No.1. It seems that, by efflux of time, the respondent No.2 has changed her stand in the matter, but the fact remains that whatever she has stated in her written statement before the learned Trial Court is a matter of record and the same needs to be considered in the present matter as this Court is dealing with the issue whether the judgment and decree passed by the learned First Appellate Court is a preliminary decree or final decree.

In the light of judgments referred hereinabove, it would be relevant to note that, in each of the judgments, the Hon’ble Supreme Court has categorically held the fundamental distinction between a preliminary and final decree is that a preliminary decree merely declares the rights and shares of the parties and leaves room for some further enquiry to be held and conducted pursuant to the directions made in the preliminary decree. Upon such enquiry being conducted and the rights of the parties being finally determined, a decree incorporating such determination is required to be drawn up, which constitutes the final decree. In other words, what is executable is a final decree and not a preliminary decree, unless and until the final decree is incorporated in, or forms part of, the preliminary decree. In the light of this legal position, the operative part of the decree passed by the learned First Appellate Court needs to be reproduced in the present matter, which reads as under :-

From perusal of the operative part of the order, it is clear that the Appellate Court has merely stated that the suit filed by the plaintiff / respondent No.1 for partition, possession and other reliefs stands decreed. As per the prayers in original suit, respondent No.1 has prayed for a decree for partition and separate possession of her half share in respect of the suit plot, without disclosing the details or identification of the said half share. The First Appellate Court did not clarify the specific share of respondents from the property by metes and bounds for which she is entitled, so also there was a prayer, in suit that suit plot be handed over by removing the construction erected in the suit plot but it is not clarified which portion of the land should be demolished which falls in favour of respondent No.1. The mode of partition as observed in the body of judgment is also not clear from operative part of the judgment.

In the light of this factual position, in my considered opinion, unless the suit property is divided by metes and bounds between the parties, by identifying and recognising their respective shares in the suit property, the decree cannot be said to be a final decree. It is further pertinent to note that the share of respondent No.2/defendant No.1 was also not clearly mentioned in the judgment and decree dated 25.01.2002. Coupled with the fact that the learned First Appellate Court itself recorded a finding that the property involved in the matter cannot be recognised by the Court while deciding the suit as well as the appeal and therefore, instead of deciding the property as indivisible, the said issue was kept open for consideration by the Executing Court. It is recorded that there are several modes of effecting the equitable partition, which the learned Executing Court can take recourse while considering all these aspects. Therefore, considering findings of the learned First Appellate Court, operative part of the judgment, can only be said to be preliminary decree. Parties are thereafter, needs to act upon as per the observations made in the body of the judgment and then, final decree can be drawn in the matter.

Respondents opposed the submissions of the petitioner, but they do not dispute the factual position in the matter. So also, the judgments which the respondent relied upon more particularly Kattukandi’s case (supra) and Jennifer’s case (supra), if perused in detail, it is clear that the Hon’ble Supreme Court has specifically held that if the preliminary decree merely declares the shares and further enquiry still remains to be done for actual partition of the property and for placing the parties in a separate possession of the divided portions, such enquiry shall be held and pursuant to result thereof, a final decree is required to be passed. Only course indicated in the said judgment is that instead of keeping the preliminary decree pending for years together, the learned Trial Court shall list the matter for taking steps under Order XX Rule 18 of the CPC. So that the matter should be decided at the earliest.

In the light of aforesaid factual and legal position, in my considered opinion, the judgment and decree dated 25.01.2002 passed in Regular Civil Appeal No.171/1996 is a preliminary decree.

It would be further pertinent to note that, in the present matter at one stage, the proceeding went up to the Hon’ble Supreme Court of India. The Hon’ble Supreme Court by its order dated 02.05.2022, which is reproduced as above, makes it is clear that by considering the fact that the School is running on the plot of which partition is sought, the petitioner was directed to deposit Rs.50,00,000/-in two instalments, of which one instalment has been deposited before the Hon’ble Supreme Court. It was directed that pending writ proceedings should be heard by considering all the suggestions and counter-suggestions. The aspect of referring the parties to mediation, so as to satisfy the claims of the parties, was also kept open. This Court, in view of observations of the Hon’ble Supreme Court though in different petition but parties being same and present petition is arising out of same proceeding referred the matter for mediation, but, the mediation was not successful. In the present matter, the fact, remains that Hon’ble Supreme Court of India was also of the opinion that this issue ought to have been settled between the parties, particularly as the School is the subject matter, which according to respondent No.1 needs to be demolished to get her share in the property.

In the present case, this Court has reached to the conclusion that the judgment and decree cannot be executed on the ground that the learned First Appellate Court has only directed the petitioner to hand over half portion of the suit property to respondent No.1 because said judgment and decree not clarified which portion or which side of the property is to be handed over. Neither there is any identification of portion to be handed over in the decree. Commissioner appointed in the matter, unless there is clarity in decree cannot execute the decree. The decree dated 25.01.2002 is therefore, a preliminary decree and by exercising the powers under Order XX Rule 18 of the CPC, the final decree is required to be drawn in the matter. Hence, the execution proceedings, which were initiated by the respondent in the matter, need to be quashed and set-aside, with a direction to the parties to proceed further to effect the final decree by exercising powers under Order XX Rule 18 of the CPC. Hence, the following order is passed :-

The writ petition stands disposed of in above terms. No order as to costs.