Order 20, Rule 18 , Section 54 CPC Appeals by non-parties to judgment, challenging only one portion of impugned judgment Preliminary decree in suit for partition merely declares shares that parties are entitled to in any of the properties included in plaint schedule and liable to partition
(REPORTABLE )SUPREME COURT OF INDIA
CIVIL APPEAL NOS. OF 2023 (ARISING OUT OF SLP (C) NOS.2373-2377 OF 2020)
M/S TRINITY INFRAVENTURES LTD. & ORS. ETC. VERSUS M.S. MURTHY & ORS. ETC. …
Order 20, Rule 18 , Section 54 CPC Appeals by non-parties to judgment, challenging only one portion of impugned judgment Preliminary decree in suit for partition merely declares shares that parties are entitled to in any of the properties included in plaint schedule and liable to partition – On basis of mere declaration of rights that take place under preliminary decree, parties cannot trade in, on specific items of properties or specific portions of suit schedule properties.
194. Therefore, in a case of partition and separate possession not covered by Section 54 of the Code, a preliminary decree is first passed in terms of Order XX Rule 18 (2) of the Code, a Commissioner is
appointed in a subsequent proceeding under Order XXVI Rule 13 and on the basis of his report, a final decree is passed under Order XXVI Rule 14 (3) of the Code. Thereafter, the possession of such property, if
it is an immovable property, is taken by executing such final decree in terms of Order XXI Rule 35 of the Code.
195. Therefore, the question of specific immovable properties or specifically identified portions of immovable properties getting allotted
to any person merely holding a preliminary decree with respect to an undivided share does not arise. A preliminary decree in a suit for partition merely declares the shares that the parties are entitled
to in any of the properties included in the plaint schedule and liable to partition. On the basis of a mere declaration of the rights that take place under the preliminary decree, the parties cannot trade in, on specific items of properties or specific portions of suit schedule properties. Since there are three stages in
a partition suit, namely (i) passing of a preliminary decree in terms of Order XX Rule 18(2); (ii) appointment of a Commissioner and passing
of a final decree in terms of Order XXVI Rule 14 (3); and (iii) taking possession in execution of such decree under Order XXI Rule 35, no party to a suit for partition, even by way of compromise, can acquire
any title to any specific item of property or any particular portion of a specific property, if such a compromise is struck only with a few parties to the suit.
196. In fact, Sameena Kausar and others stake claim to the land of the extent of acres 60.00 in Survey No.172 of Hydernagar, on the basis of a gift made by defendant No.52. Even admittedly, Sameena Kausar
and others have sold half of that land way back in 1997 to M/s Jayaho Estates. Yet Sameena Kausar and others have come up with appeals.
197. Be that as it may, a look at the Memorandum of Oral Gift dated 19.12.1978 executed by Ghousuddin Khan (defendant No.52) shows that the said document purports to be a record of the oral gift (hiba)already made on 10.10.1978. This Memorandum of Oral Gift declares that the donor have also delivered possession of the gifted property to the donee. Interestingly, this Memorandum of Oral Gift does not contain a Schedule of property, but contains very strangely, the boundaries alone. It will be useful to extract the last part of this
Memorandum of Oral Gift dated 19.12.1978. It reads as follows:-
“Today on 19th December 1978 I have confirmed the oral gift made on 10th October 1978 in favor of the Donee and executed this Memorandum of gift in presence of the following witnesses.
Hence these few words are written by me as a
MEMORANDUM OF GIFT so that it may remain as an authority and used at time of need.
Dated : 19th December 1978.
Boundaries:
North: Nizampet village
South: Bombay High way
East: Hydernagar village,
West: Survey No. 28 land of Jeelani Begum.
Sd/-Donor Ghouse Mohiuddin Khan.
Sd/- witness Sd/- witness”
198. It is true that in the body of the Memorandum, the donor claims to be the owner in possession of the land measuring acres 60 in Survey No.172 of Hydernagar. But Survey No.172 of Hydernagar has
land of a total extent of acres 196.20. The claim of defendant No.52 to acres 60 out of the total extent, is on the basis of an order purportedly passed first on 31.01.1976, in Application No.139 of 1971. But the
only order passed in this application is to the effect that the parties have not been able to agree upon the allotment of shares and that therefore, the matter had to be forwarded to the Collector under Section 54 CPC. But all of a sudden, a final report filed by one P.
Narasimha Rao Receiver/Commissioner, surfaces, allegedly on the basis of a compromise decree in Application No.185 of 1973. In the table contained in the said final report, Survey No.172 is shown to
have been sub-divided into 25 different parts bearing Survey Nos.172/1 to 172/25. What is shown therein to have been allotted to defendant No.52 were the following:
Survey No. Allotted to D-52 Out of
172/8 0.2 G 9 Acres 39 Guntas
172/9 10.02 G 10 Acres 02 Guntas
172/17 7.08 G 7 Acres 08 Guntas
172/18 10.00 G 10 Acres 00 Guntas
172/19 10.07 G 10 Acres 07 Guntas
172/20 9.34 G 9 Acres 34 Guntas
172/21 5.04 G 5 Acres 04 Guntas
172/22 5.38 G 5 Acres 38 Guntas
172/23 5.00 G 5 Acres 25 Guntas
62.13 G
199. Interestingly, the order passed in Application No.139 of 1971 is dated 21.01.1976. If pursuant to the said order, Survey No.172 had been sub-divided and different parcels of land in various sub-divisions
of Survey No.172 stood allotted to defendant No.52, the Memorandum of Gift dated 19.12.1978 should have contained all these sub-divisions of survey numbers and a proper description. Without giving the sub- division numbers of Survey No.172 and without describing different parcels of land as per the allotment allegedly made by the Advocate
Commissioner, the Memorandum of gift proceeds to mention mere boundaries. Interestingly, Northern boundary is stated to be Nizampet village, Southern boundary is stated to be Bombay Highway and Western boundary is stated to be Survey No.28 belonging to Jeelani Begum. Therefore, the entire claim made by persons claiming under defendant No.52, appears to be a hoax.
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