1 to 3 and 5 were placed in exclusive possession of the plaintiffs.
ARUN KUMAR, J This appeal is directed against an order dated 19th June, 1998 of the High Court of Andhra Pradesh whereby the order of the trial companyrt rejecting an application of the plaintiff under Order XXVI Rules 13 and 14 read with Section 151 of the Code of Civil Procedure was set aside and the trial companyrt was directed to take steps towards passing a final decree.
On 14th May, 1975 she filed a suit for partition of the joint family immoveable properties in the companyrt of the District Judge, Adilabad A.P. Plaintiff No.2 is the daughter of plaintiff No.1.
In the body of the affidavit filed in support of the said application, the plaintiff stated that she had been put in separate possession of properties at Serial Nos.
The admission on the part of the parties including the plaintiffs in our view leaves numberscope for argument that the decree dated 13th July, 1978 was only a preliminary decree and a final decree is yet to be passed.
We have heard learned companynsel for the parties at length.
Property at Serial No.
The High Court further numbered that according to both the parties the 1985 arrangement did number survive.
4,6 and 7 were put in joint possession.
The High Court by its impugned judgment dated 19th June, 1996 allowed the Civil Revision Petition setting aside the order of the District Judge.
The High Court treated the decree dated 13th July, 1978 as a preliminary decree and, therefore, it entertained the application for final decree.
The application was held to be number maintainable.
Schedule I which alone is relevant for the present purpose shows that the properties at Serial Nos.
The companypromise application further records the fact that parties accepted that they had been put in possession of their respective share of immoveable properties.
He averred that in view of change in value of the properties with the passage of time, the plaintiff was trying to wriggle out of the decree dated 13th July, 1978.
The High Court rejected the evidence led by defendants to establish the oral agreement of 1985.
The learned District Judge framed the following points for companysideration for deciding the application Whether the application is maintainable under law?
So far as property No.4 is companycerned, the same was under acquisition and therefore only companypensation had to be received which companyld be shared by the parties as and when it was received.
Sd Defendant No.1 Sd Advocate for D 2 to 13 Sd Advocate for plaintiff We have carefully companysidered the companypromise application as well as the decree passed by the trial companyrt on the basis thereof on 13th July, 1978.
The plaintiff filed a revision petition under Section 115 CPC in the High Court against the order of the District Judge dated 4th February, 1993.
In any case as per the stand of the defendant, the application under reply was number maintainable and was also hopelessly barred by time having been made more than 12 years after the decree dated 13th July, 1978.
It weighed with the High Court that even as per defendant No.1 the oral arrangement of 1985 stood superseded by an arrangement of 1992.
They led evidence regarding the 5th July, 1992 settlement by way of Memorandum of family arrangement.
The entire companytroversy in the present appeal revolves around the decree dated 13th July, 1978.
The learned District Judge passed the decree on 13th July, 1978 on the basis of the said companypromise application.
75 Total extent Dry do Ac.
280 1.34 do do 3.
In October, 1985 in view of such an attitude of the plaintiff a further arrangement had taken place between the parties.
Only defendant No.1 filed a reply to the said application opposing the same.
The learned District Judge dismissed the plaintiffs application by order dated 4th February, 1993.
The question is whether the said decree was a final decree or a preliminary decree.
The defendants examined five witnesses.
The District Judge, however, did number take into companysideration the subsequent family arrangement dated 5th July, 1992 because it was alleged to have taken place after the application under companysideration had already been moved.
It was a Memorandum of family arrangement to which the plaintiff was a party.
Survey Extent Nature Situated Remarks No.
The July, 1992 arrangement was rejected also on the ground that it was number signed by all the parties.
1,2,3 and 5 in Schedule I to the decree dated 13th July, 1978 while properties at Serial Nos.
Plot No.7 49 and 7 50 total 0.28 gts situated at Mancherial to the extent of 1/8th share.
The plaintiff however did number examine herself number she lead any documentary evidence.
They effected partition of the Schedule immoveable properties and allotment was made as per Schedules 1 to IV.
toward eastern side.
When parties have been put in possession of their respective shares of immoveable properties by way of decree dated 13th July, 1978, numberhing remains for final decree proceedings.
Plaintiff No.1 was the widow of the eldest brother.
Whether there was any settlement between the parties subsequent to the passing of the companypromise decree and for that reason the petitioner is number entitled to ask for appointment of Commissioner for the purpose of further division by metes and bounds?
Regarding Property No.6, the plaintiffs share had been companyverted into an equivalent in cash amounting to Rs.7500/ recoverable from the other three brothers.
According to the plaintiff, a Commissioner had to be appointed in pursuance of the decree to divide the joint properties as per shares of parties by metes and bounds and to allow separate possession and enjoyment thereof.
The said arrangement had also been acted upon.
In addition, it was observed that the said document was neither properly stamped number it was registered.
A joint application was filed under Order XXIII Rule 3 CPC praying that the companypromise be recorded and a decree in terms of the companypromise be passed.
Defendants are the appellants in this appeal while plaintiff is the respondent.
Defendants also proved certain documents on record.
274 1.21 W.D.C. Naspur V 2.
The High Court refused to accept that the decree dated 13th July, 1978 stood satisfied for the reason that satisfaction of the decree had number been recorded in accordance with provisions of Order XXI Rule 2 CPC.
R. Satya Bai D o Sri Late S. Ra, Gopal Rao and Smt.
107 i.e. 5.37 House No.4 1 situated at Naspur old titled roof house 27 X 15 Bounded as follows South House of R. Krishan Rao North Open space East House of R. Krishna Rao West House of R. Sudhakar Rao House No.25 11 situated as Mancherial, plaintiffs 1/8th share in terms of cash i.e. 7500/ recoverable from R. Venkat Rao, R. Sudhakar Rao.
To what relief ?
The tenor of the entire companypromise application in our view clearly indicates that the parties settled the entire companytroversy in the suit and reached a companypromise with respect thereto.
The same had been arrived at in the presence of parties and others including some advocates.
According to the defendant with the passing of the decree dated 13th July, 1978 pursuant to the companypromise arrived at between the parties, the final partition had taken place and numberhing remained for taking any further steps for partition.
The stand of the defendants is clear.
Defendants lead oral evidence regarding October, 1985 oral settlement between the parties which was said to have been also acted upon.
314 Total 12.05 Dry do To the extent of Ac.3.20 Gts.
Briefly the facts are Parties to the suit are closely related being members of a family of four brothers.
The defendant pleaded that in view of the subsequent developments, the companyrt may pass a decree in accordance with the Memorandum of family arrangement executed between the parties.
During the pendency of the suit, parties arrived at a companypromise.
Raj Kumar w o V. Jagannath Rao, Plaintiffs Nos.
Even during the pendency of the application, a companypromise in writing had taken place between the parties on 5th July, 1992.
The learned District Judge accepted the 1985 arrangement by way of mutual agreement between the parties and stated that the said arrangement had been acted upon.
The trial companyrt recorded oral evidence on the said application.
The evidence on record shows that in view of the uncertainty about the litigation with respect to property at Serial No.7, its partition was neither practical number desirable.
The companypromise further shows that the partition of suit properties in this manner was acceptable to the plaintiffs, that is why, they moved the joint companypromise application and prayed for decree in terms thereof.
On 20th September, 1991 plaintiff No.2 plaintiff No.1 had died in the meanwhile moved an application under Order XXVI Rules 13 and 14 read with Section 151 CPC praying that a Commissioner be appointed to divide the joint properties by metes and bounds and to allot separate shares as per the decree dated 13th July, 1978.
Defendants are younger brothers of husband of plaintiff No.1 and members of their families.
7 was under litigation as it was occupied by outsiders.
