Kancharana Suryanarayana (died) and Others vs Kancharana Gopaludu (died) and Others

P. Ramakrishnam Raju, J.—Respondent Nos. 2 to 14 in the appeal are the appellants, since they are transposed as appellant Nos. 27 to 39 by an order dated 6-6-1996 in C.M.P. No. 2096 of 1995. Originally the suit was filed by the first respondent against his brothers for partition of the joint family properties into three equal shares and for allotment of one such share to him. A preliminary decree was passed on 31-8-1981. Questioning the said decree, defendant Nos. 1, 2 and 4 filed the appeal. Pending appeal, appellant Nos. 1 to 3 died and their legal representatives are brought on record as appellant Nos. 4 to 26. While the appeal is pending, respondent Nos. 2 to 14 in the appeal who are now transposed as appellant Nos. 27 to 39 filed an application for impleading them as respondents in the appeal since they have purchased various plots from the second defendant and the legal representatives of the first defendant in item 2 of the plaint schedule property which is Ac. 1-13 cents in Survey No. 40/3 known as Manyam land. The total extent of the suit land is 5464 sq. yards, out of which these appellants purchased 2493 sq. yards, leaving a balance of 2971 sq. yards.

This appeal has a chequered career. The appellants contend that the appeal was heard and judgment was reserved on 22-3-1991 and since the learned Judge who heard the appeal was transferred from this Court before pronouncing the judgment, the appeal was again posted for hearing before my learned brother Justice A.S. Bhate on 10-3-1995 on which date the appeal was dismissed for default. The appellants filed C.M.P. No. 5849 of 1995 to set aside the dismissal order and the same was allowed on 24-8-1995. When the appeal was posted for hearing on 13-2-1995, Sri T. Veerabhadrayya, the learned Counsel for the appellants who filed the appeal, reported no instructions. Accordingly the appeal was dismissed as against them. As already stated, respondent Nos. 2 to 14, therefore got themselves transposed as appellant Nos. 27 to 39 and they are prosecuting the appeal.

In the suit, the third plaintiff was examined as P.W.1 and marked Exs.A-1 to A-15; while the second defendant examined himself as D.W.1 and marked Exs.B-1 to B-4. The trial Court after framing necessary issues decreed the suit.

The point that arises for consideration in this appeal is whether there are any equities in favour of appellant Nos. 27 to 39 in this appeal.

Point: Sri C. Poorniah, the learned Counsel for the appellants did not argue on merits disputing the correctness of the preliminary decree, but he contended that Ac. 0-32 cents of the plaint schedule as purchased by the appellants should be allotted to defendant Nos. 1 and 2 so that the sales in favour of the appellants may not be affected.

Sri P. Ramachandra Reddy, the learned senior Advocate appearing for the respondents submits that the third defendant, mother of the plaintiff and defendant Nos. 1 and 2 claimed the property, and as she died pending the suit, the fourth defendant, their sister was impleaded as the legal representative of the third defendant, but she also remained ex parte and the learned Judge in a well considered judgment, decreed the suit in favour of the plaintiff on 30-1-1981. According to him the appellants in collusion with the second defendant and the legal representatives of the first defendant purchased different pieces in the Manyam land measuring Ac. 1-13 cents. In pursuance of the preliminary decree, application for final decree was filed. The original appellants filed C.M.P. No. 4805 of 1982 for stay of all further proceedings in execution of the preliminary decree and the High Court by its order dated 20-7-1982 directed that the enquiry into mesne profits shall go on and after ascertainment of profits, the appellants shall deposit half of the amount so ascertained. Although profits were ascertained after due enquiry, the appellants did not deposit the profits as directed by this Court. Therefore, final decree was passed on 17-7-1985 by the lower Court. No appeal was filed against the said final decree and the same has become final. As these appellants have purchased the property, pending appeal, their sales are affected by doctrine of lis pendens, and they have no independent right to urge in this appeal. The learned senior Advocate further submits that in fact these appellants have also applied for stay of further proceedings in this Court which was rejected by this Court on the ground that they are purchasers pendente lite and will be bound by the decision in the above appeal. As the claim of the third defendant in the suit was negatived by the lower Court on substantial grounds, there is nothing for the appellants to urge in this appeal. It is also further contended by the learned senior Advocate appearing for the respondents that these appellants filed a number of suits viz., O.S. Nos. 265 to 267; 274; 275; 277; 280 to 284; 292 to 296 of 1988 before the Additional District Munsif''s Court, Visakhapatnam against their vendors; that the suits are pending; and their vendors are contesting the said suits disputing the validity of the alienations in their favour. It is also further contended that after passing of the final decree on 17-7-1985, the respondents filed E.P. Nos. 171 and 172 of 1986 for possession of the land allotted to them under the final decree and also for recovery of profits up to 1983 amounting to Rs. 89,563/-. In E.P. No. 171 of 1986 delivery was ordered and the property was allotted to the respondents as demarcated, and about Ac. 0-18 cents was delivered to the respondents on 20-2-1988 which was also recorded. The balance of about Ac. 0-16 cents could not be taken delivery as obstruction was caused by some of the appellants who made purchases during the years 1982-83. After passing of the preliminary decree, and the suits filed by the appellants in the District Munsif''s Court, 3Visakhapatnam; they also obtained interim injunction restraining their vendors from interfering with their possession. An Advocate Commissioner who was appointed by the lower Court in his report stated though the decree mentioned item-2 Manyam land as Ac. 1-13 cents, but the land actually available is only Ac. 1-04 cents and out of Ac. 1-04 cents, Ac.0-18 cents was delivered to these respondents on 20-2-1988 and the remaining Ac. 0-162/3 cents was in possession of the appellants who raised structures therein illegally and obstructed the delivery. The appellants have also laid a road across the site measuring 677 sq. yards to provide access to the plots on either side of the road. In the result, there is no land available in the said Survey No. 40/3 which can be allotted to these respondents. Since the entire survey number is occupied by the appellants and some other strangers, who had illegally occupied the same completely, depriving these respondents of their enjoyment of 1/3rd share decreed to them under the preliminary and final decrees and allotted to them in the execution proceedings. As the appellants have purchased the land, pending the appeal, they did not get any rights under those sales.

As the defendants who contested the suit have withdrawn from the contest, the preliminary decree cannot be interfered with and I am of the view that the same has to be confirmed. The appellants cannot question the said decree being alienees and they are bound by the same. However what all is contended in this appeal by the learned Counsel for the appellants is that they are entitled to equities. They seem to have purchased 2493 sq. yards under different sale deeds after the preliminary decree. They contend that they are the bona fide purchasers without notice of the litigation, and therefore, the said property may be allotted to defendant Nos. 1 and 2.1 am not interfering with the preliminary decree. The final decree was passed on 17-7-1985 in pursuance of the preliminary decree which has become final also cannot be interfered with. It is contended by the respondents that since a final decree has already been passed in pursuance of the preliminary decree which has become final, the appellants cannot get any relief in this appeal. Sri C. Poorniah, the learned Counsel for the appellants relying on Ramesh Chandra Vs. Seth Ghanshiam Dass, ., submits that as appeal is pending against the preliminary decree, passing of the final decree will not have any effect. No doubt, that when once appeal against the preliminary decree is allowed the final decree will fall to the ground. As I am not interfering with the preliminary decree, the validity of the final decree cannot be doubted.

Sri P. Ramachandra Reddy, the learned senior Advocate appearing for the respondents relying on Dutt maharaj v. Sukur Mohommed ., submits that Section 52 of Transfer of Property prohibits parties pending litigation to change status quo at their will and pleasure. True, the Privy Council held that the purpose of Section 52 is to maintain status quo unaffected by the act of any part to the litigation pending its determination. Therefore, normally parties cannot resort to defeating the rights of the parties, and even if they take any steps contrary to the decree, they would not be binding on the adversary to the litigation. The next decision relied on by the learned senior Advocate appearing for the respondents is Kedarnath v. Sheonarain AIR 1790 SC 1717., wherein it is stated that if the property is acquired pendents lite, the acquirer is bound by the decree ultimately passed in the suit, as Section 52 of Transfer of Property Act places a complete embargo on the transfer of immovable property, right to which is directly and specifically in question in a pending litigation.

However, when the appellants plead purchase without notice of the alienation, their rights can be protected on proof of alienation. The appellants may not know about the pendency of litigation, but still, defendant NOs. 1 and 2 cannot convey title to them as the plaintiff is also having 1/3rd share. Further their application for stay of the execution of the decree was also dismissed as they could not satisfy the Court that they are entitled to equities. That apart, they have also filed several suits before the District Munsif''s Court, Visakhapatnam seeking injunction and some of them have also obtained orders of injunction. Their vendors seem to be contesting those suits. Under these circumstances the validity of the sales is also not admitted by their vendors. The Commissioner''s report also shows that item 2 of suit schedule Manyam land which should be Ac. 1-13 cents is not actually available on land, except Ac. 1-04 cents; out of Ac. 1-04 cents Ac. 0-18 cents was delivered to the respondents on 20-2-1988. Out of Ac. 0-342/3 cents after deducting Ac. 0-18 cents, the remaining Ac. 0-16 2/3 cents was under the occupation of the appellants and others who have raised constructions. Having regard to the Commissioner''s report, it is not possible that the appellant''s right as per the sale deed should be protected. As already stated, the final decree which was already passed and which has become final cannot be interfered with since I am not interfered with the preliminary decree.

The question is when the original defendants to the suit are not challenging the preliminary decree, the same can be challenged by alienees, in the appeal. The alienees cannot claim better rights than their vendors as they claim title through them. Therefore when the preliminary decree remains unquestioned by the original defendants and when the alienees cannot dispute the same, they cannot maintain appeal seeking equities, particularly when the alienations are not admitted by the original defendants. If the original defendants accept the alienations made by them and seek for equities, perhaps the Court may go into the said request and grant relief. But when the defendants themselves who alienated the property are not admitting the alienations, the question of granting equities in favour of the alienees does not arise. The truth of the alienations pendente lite cannot be gone into in the suit or appeal, as this dispute would be alien to the suit. Therefore I cannot go into the validity of the alienations when they are not admitted by the alienors or in their absence or when they do not challenge the preliminary decree as happened in this case and such a dispute has to be adjudicated upon before an appropriate forum.

For all the above reasons, I do not find any ground to interfere in this appeal, or any relief can be granted. The appeal, therefore fails and is accordingly dismissed, but in the circumstances without costs.