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Venkatrao Anantdeo Joshi And Others v. Malatibai And Others
Factual and Procedural Background
Appellant 1, Venkatrao Anantdeo Joshi, and his mother Bhagirathibai instituted Civil Suit No. 51 of 1973 against Venkatrao’s father, Anantdeo (since deceased), and Venkatrao’s wife, Malatibai, seeking partition of joint-family property located in Village Hippalgaon, Taluka Nilanga, District Latur. The trial court, by preliminary decree dated 10-10-1979, held that Venkatrao and Bhagirathibai were entitled to a two-third share of Survey No. 60.A (7 acres 3 guntas), a house and a plot, and invalidated a 1973 sale deed executed by Anantdeo in favour of Malatibai.
An appeal (Regular Appeal No. 130 of 1979) was dismissed on 31-12-1981, rendering the preliminary decree final. During the pendency of that appeal, Respondent 3, Baburao @ Tukaram Khandekar, filed Regular Civil Case No. 288 of 1981 claiming tenancy rights over Survey No. 60.A and obtained a compromise decree on 23-11-1981.
After Anantdeo’s death on 8-1-1987, Venkatrao and his mother sold the suit property to the present appellants by registered deed dated 23-8-1989. On 24-10-1989 they moved for a final decree. The trial court rejected Baburao’s tenancy claim, finding no supporting batai patra or revenue entries, and held the appellants entitled to a two-third share.
Baburao appealed. The Additional District Judge, by order dated 22-1-1997 (RCA No. 314 of 1993), directed that an issue on tenancy be framed and referred to the competent tenancy authority. The Bombay High Court (Aurangabad Bench) dismissed the appellants’ appeal on 12-7-2001. The present civil appeal challenges that High Court decision, culminating in the Supreme Court judgment summarized here.
Legal Issues Presented
- Whether Respondent 3 could assert tenancy rights over Survey No. 60.A at the stage of drawing the final decree after a preliminary decree for partition had become final.
- Whether the Additional District Judge was correct in directing that the tenancy issue be referred to the competent authority under the relevant Tenancy Act.
- The effect of the doctrine of lis pendens and Section 97 of the Code of Civil Procedure, 1908, on Baburao’s claimed tenancy created (if at all) during the pendency of the partition suit.
Arguments of the Parties
Appellants’ Arguments
- Baburao’s plea of tenancy is “bogus” and intended only to defeat rights crystallised by the preliminary decree.
- Any batai patra allegedly executed by Anantdeo during the pendency of the partition suit is hit by the doctrine of lis pendens and cannot confer tenancy rights.
- Section 97 CPC bars a party who did not appeal from the preliminary decree from challenging its correctness in an appeal from the final decree; hence Baburao cannot now raise a tenancy claim.
- The compromise decree in Civil Suit No. 288 of 1981, obtained only against Anantdeo and Malatibai, does not affect the appellants’ title or the findings in the partition suit.
- Revenue records contain no mutation in Baburao’s favour, undermining his asserted tenancy.
The opinion does not contain a detailed account of Respondent 3’s legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| (1995) 5 SCC 631 | Interprets Section 97 CPC: failure to appeal from a preliminary decree precludes challenge to its correctness in an appeal from the final decree. | Reinforced the view that Baburao could not dispute the preliminary decree or introduce a tenancy claim at the final-decree stage. |
Court’s Reasoning and Analysis
The Supreme Court emphasised that the preliminary decree of 10-10-1979, affirmed on 31-12-1981, had become final and conclusively determined the parties’ rights. Under Section 97 CPC, Baburao, who neither appealed nor was a party to that decree, was barred from questioning it during the final-decree proceedings.
Assuming arguendo that a batai patra was executed in Baburao’s favour, the Court held it was executed pendente lite and therefore subject to the doctrine of lis pendens; it could not prejudice rights adjudicated in the partition suit. The Court also noted the absence of documentary proof—no batai patra was produced and revenue records showed no tenancy mutation—corroborating the trial court’s rejection of Baburao’s claim.
Consequently, the Additional District Judge erred in treating the tenancy plea as an unresolved factual issue requiring reference to a tenancy authority, and the High Court erred in affirming that course. The appropriate course was to give effect to the trial court’s decision, which had already negated Baburao’s tenancy and directed partition in favour of the appellants.
Holding and Implications
Appeal Allowed; High Court and Additional District Judge’s orders set aside; trial court’s order restored.
Immediate Effect: the final decree proceedings will proceed on the basis that the appellants hold a two-third share, without referring any tenancy issue to a tenancy court. Baburao’s asserted tenancy rights stand rejected. The Court made no order as to costs.
Broader Implications: the decision reiterates the binding effect of a preliminary decree once it attains finality and reaffirms that Section 97 CPC prevents parties from raising new rights or defences in subsequent stages of the same litigation.
Shah, J.— Leave granted.
2. In appeal from Order No. 48 of 1997, the High Court of Bombay, Bench at Aurangabad by its judgment and order dated 12-7-2001 dismissed the appeal and confirmed the order passed by the Additional District Judge, Latur in Regular Civil Appeal No. 314 of 1993 directing the trial court to frame a specific issue on the point of tenancy and to refer it to the competent court for its determination under the Tenancy Act.
3. Before deciding the question involved, a brief résumé of facts is necessary. Appellant 1 Venkatrao Anantdeo Joshi and his mother Bhagirathibai (since deceased) filed Civil Suit No. 51 of 1973 for partition against Anantdeo (father of Appellant 1, since deceased) and Malatibai (wife of Appellant 1). It was alleged that Anantdeo and Malatibai were residing separately from Appellant 1 and his mother at a different place. The suit was filed for partitioning the joint family property, namely, agricultural land in Survey No. 60.A admeasuring 7 acres 3 guntas, a house and plot at Village Hippalgaon, Taluka Nilanga, District Latur. It was contended that Anantdeo had transferred a portion of ancestral property in Survey No. 60.A in favour of Defendant 3 (Malatibai) by a registered sale deed dated 25-4-1973. It is alleged that Anantdeo was a person of easy virtue and was having drinking habits and was staying in the company of one Baburao @ Tukaram Khandekar and Malatibai. The so-called transfer in favour of Malatibai was illegal. By judgment and decree dated 10-10-1979, preliminary decree for partition was drawn up holding that Venkatrao and Bhagirathibai were entitled to 2/3rd share in the entire property. The court considered the various contentions raised by Anantdeo and arrived at the conclusion that it was joint family property and that Defendant 1 had no right to transfer it. The court directed the Collector or any gazetted subordinate officer to effect the partition of the suit property and separate possession and also directed the Court Commissioner to effect the partition of the suit house and the plot. The court also directed mesne profits from the date of the suit until delivery of possession.
4. Against that preliminary decree, Anantdeo and Malatibai had filed Regular Appeal No. 130 of 1979, which was dismissed on 31-12-1981. Thereby, the preliminary decree for partition became final. Pending the said appeal, Respondent 3 Baburao filed a suit being Regular Civil Case No. 288 of 1981 for injunction against Anantdeo and Malatibai, that is, father and wife of the present Appellant 1 praying that they should be permanently restrained from causing interference into the peaceful possession over the suit land and claimed tenancy rights over the suit property bearing Survey No. 60.A. A compromise decree was obtained on 23-11-1981.
5. Anantdeo died on 8-1-1987. Thereafter, Appellant 1 and his mother sold the entire suit property in favour of rest of the appellants by registered sale deed dated 23-8-1989. Thereafter, on 24-10-1989, the appellants applied for passing of the final decree for partition in Civil Suit No. 51 of 1973. The trial court partly allowed the said application and held that the appellants were entitled to 2/3rd share of the suit property. The contention of Respondent 3 was negatived by holding as under:
“… Under such situation to my mind Opponent 3 was aware about the dispute between the original plaintiffs and Anantdeo and Opponent 1 and hence he could have suo motu joined as defendant in the earlier suit raising the contention that he is tenant in the suit land. ‘Batai patra’ alleged to have been executed by Anantdeo in favour of Opponent 3 is not produced on record. Moreover, there is no entry in the record-of-rights of the suit land to that effect. Hence, I am of the opinion that Opponent 3 cannot be said to be in possession of suit land on the basis of ‘batai patra’ and his possession over the suit land is in other capacity.
… For these reasons I hold that Opponent 3 is not having right over the suit land since 1977 as contended by him. Therefore, I answer this point in the negative.”
The decree was sent to the Collector for effecting partition.
6. Against that order, appellants preferred appeal which was dismissed by the trial court. Baburao filed separate appeal claiming tenancy rights qua the agricultural land. In these appeals, the Additional District Judge vide its judgment and order dated 22-1-1997 held that claim of Baburao of being a tenant of agricultural land requires to be decided by a competent authority under the Tenancy Act. Hence, the issue is required to be raised before such court.
7. Against that judgment and order, the appellants filed appeal from order in the High Court. The High Court dismissed the same by the impugned judgment. Hence, this appeal.
8. At the time of hearing of this appeal, learned counsel for the appellants submitted that the plea of tenancy raised by Baburao is on the face of it, bogus so as to defeat the rights of the appellants which are crystallised at the time of passing of the preliminary decree. Presuming that pending the suit for partition, even if batai patra is executed, it would not confer any rights on Baburao as it is hit by principles of lis pendens. In any case, as the preliminary decree becomes final, it was not open for Baburao to raise such contention at the time of passing of final decree for partition.
9. With regard to lis pendens, learned counsel for the appellants rightly referred to the judgment and decree passed in Regular Civil Suit No. 51 of 1973 and contended that presuming that the so-called batai patra was at all executed by Anantdeo, it was not open to him to execute the same pending disposal of the suit filed by Appellant 1 for partition of the property. In that suit, Appellant 1 and his mother had challenged the transfer of land out of Survey No. 60.A and also for partition of the suit property. By elaborate judgment and order, the suit filed by the appellants was decreed to the extent that they were entitled to 2/3rd share in the suit properties. The court had also directed mesne profits. Till the date of the decree, it was contended by Anantdeo that he was in possession of portion of the suit land and the remaining portion was in possession of Malatibai, in view of the sale deed in her favour. It has also been specifically contended that for some time, property was in possession of Baburao prior to marriage of Shakuntala Bai and then in possession of one Pandurang Saokar and lastly it was in possession of Malatibai and himself. The court specifically arrived at the conclusion that Anantdeo was in possession of the suit property and the so-called transfer was without any legal and family necessity as alleged and, therefore, the appellants were entitled to 2/3rd share in the suit property. In the revenue records also, there is no mutation in favour of Baburao. Further, the so-called compromise decree in Civil Suit No. 288 of 1981 against Anantdeo and Malatibai would not confer any title against the appellant.
10. Further, in a suit for partition where preliminary decree is passed, at the time of passing of the final decree it was not open to the respondent to raise the contention that he was a tenant of the suit premises. Section 97 CPC specifically provides that where any party aggrieved by the preliminary decree does not appeal from the said decree, he is precluded from disputing its correctness in any appeal which may be preferred from the final decree. (1995) 5 SCC 631
11. In the result, the appeal is allowed accordingly and the impugned judgment and order passed by the High Court confirming the judgment and order passed by the Additional District Judge, Latur in RCA No. 314 of 1993 is set aside. The order passed by the trial court is restored. There shall be no order as to costs.
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