Supreme Court of India

VENKATRAO ANANTDEO JOSHI AND ORS.versusSAU MALATHIBAI AND ORS

Citation: 2002 INSC 461
Decided: 5 November 2002
Disposal: Appeal(s) allowed
Bench: M B SHAH

Holding

A preliminary decree that has become final bars the respondent from raising a tenancy claim at the final decree, and a "batai patra" executed during pendency is ineffective under the doctrine of lis pendens; the compromise decree does not confer title.

Summary

Venkatrao Joshi and his mother filed a partition suit against the father and his wife, alleging an illegal transfer of joint family land. The trial court issued a preliminary decree granting the appellants a two‑thirds share and held the transfer void; the decree became final after the father and wife’s appeal was dismissed. Meanwhile, Baburao (respondent No.3) claimed tenancy rights over the land and obtained a compromise decree in a separate suit. The trial court, in the final decree, again denied Baburao’s tenancy claim. On appeal, the Supreme Court examined whether a "batai patra" executed during the pendency of the partition suit could create tenancy rights and whether a party could raise a tenancy contention at the final decree after not appealing the preliminary decree. Relying on the doctrine of lis pendens and Section 97 of the CPC, the Court held that the preliminary decree, now final, precludes the tenancy claim and that the compromise decree does not confer title. Consequently, the Supreme Court set aside the High Court order and restored the trial court’s order.

Issues considered

Whether a "batai patra" executed pending a partition suit can confer tenancy rights under the doctrine of lis pendens.
Whether a party who did not appeal a preliminary decree can raise a new contention, such as tenancy, in an appeal from the final decree.
Whether Section 97 of the Civil Procedure Code bars raising the tenancy claim at the final decree stage.
Whether a compromise decree in a separate suit confers any title against the appellant.

Legislation cited

Code of Civil Procedure, 1908s. 97

Subjects

Hindu lawjoint family propertypartition suitlis pendensSection 97 CPCtenancy rightsmesne profitscompromise decreepreliminary decreefinal decree

Judgment

VENKATRAO ANANTDEO JOSHI AND ORS. A
v.
SAU MALATHIBAI AND ORS

NOVEMBER I 5, 2002

[M.B. SHAH AND D.M. DHARMADHIKARI, JJ.] B

Hindu law: Joint Family property-Suit challenging the transfer of
certain land and for partition of property-Decreed by the trial Court for
2/Jrd share of suit property in favour of appellants-Appeals for mesne profit C
and tenancy rights-Appellate Court referred back the matter to trial Court
for determination of issue of tenancy right-Affirmed by High Court-On
appeal, Held, since transfer of suit property by the father of Appellant No. I
in favour of wife of appellant No. I was without any legal necessity, compromise
decree between respondents and tenant on the suit property did no1 confer any
title "against appellant-Order of trial Court restored. D
Civil Procedure Code, 1908; Section 97: Suit/or partition-Raising of
plea of tenancy at the time ofpassing offinal decree--Validity of-Held, when
no appeal was preferred by the aggrieved party against the preliminary decree,
it is not open for him to raise contention in the appeal preferred from final
decree. E
Words and Phrases:

'batai patra' and '/is pendens '-Meaning of

Appellant No.I and his mother filed a suit for partition in the joint F
family property against respondents (wife and father of appellant No.I),
and challenged transfer of crrtain property by the father in favour of wife
of appellant No.I. Trial Court passed preliminary decree holding that
appellants were entitled to 2/3rd share in the entire property and that
father of appellant No.I had no right to transfer the suit property. Appeal G
filed by aggrieved father and wife of appellant No.I was dismissed by the
appellate court, and the preliminary decree became final. In the
meanwhile, respondent No.3 filed a suit for injunction against the father
and wife of appellant No.I claiming tenancy rights over the suit property,
though later on obtained a compromise decree in the matter. Trial Court

21.I
H
212 SUPREME COURT REPORTS [2002] suPr. 4 S.C.R.

A partly allowed and decreed the pending suit holding that appellants were
entitled to 2/3rd share in the suit property and respondent No.3 was not
having tenancy rights over the suit property. Appellants preferred appeal
for mesne profit and Respondent No.3 filed appeal claiming tenancy rights.
Appellate Court directed trial Court to frame a specific issue on the point
B of tenancy for determination by the competent Court. High Court affirmed
it. Hence this appeal.

It was contended for the appellants that since preliminary decree
became final it was not open for the respondent to raise contention
claiming tenancy right at the time of passing of final decree for partition;
C and that since batai patra was executed pending the suit for partition, it
would not confer any rights on respondent (tenant) on the principle of /is
pendens.

Allowing the appeal, the Court

D HELD: 1.1. With regard to /is pendens, presuming that batai patra
was at all executed by father of Appellant No.1, it was not open· to him to
execute the same pending disposal of the suit filed by appellant No.1 for
partition of the property. 1215-EJ

1.2. Trial Court specifically arrived at the conclusion that father of
E Appellant No.I was in possession of the suit property and transfer of part
of suit property was without any legal and family necessity as alleged and,
therefore, appellants were entitled to 2/3rd share in the suit property. In
the Revenue Records also, there is no mutation in favour of Respondent
No.3. Further, so called compromise decree in the Suit against father and
F wife of Appellant No.I would not confer any title against the appellant.
1215-G, H; 216-AJ

2. 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
G 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. The judgment and order passed by the High Court
confirming the judgment and order passed by the appellate Court is set
aside. The order passed by the trial Court is restored. 1216-B-DJ
H
VENKA TRAO ANANTDEO JOSHI v. SAU MALATHIBAI [SHAH, J.] 213

Moo/ Chand and Ors. v, Dy. Director, Consolidation and Ors., 119951 A
5 sec 63, relied on.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 7295 of
2002.

From the Judgment and Order dated 12.7.2001 of the Bombay High B
Court in AFO No. 48/97.

Manoj Swamp, for the Appellants.

B.N. Deshmukh, Satijit A. Desai Venkateswara Rao Anumoju for
the Respondent. C
The Judgment of the Court was delivered by

SHAH, J, Leave granted.

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 D
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.
E
Before deciding the question involved, brief resume of facts is necessary.
Appellant No. I Venkatrao Anantdeo Joshi and his mother Bhagirathibai (since
deceased) filed Civil Suit No.5 l of 1973 for partition against Anantdeo (father
of appellant No. I since deceased) and Malatibai (wife of appellant No. l ). It
was alleged that Anantdeo and Malatibai were residing separately from
appellant No. I and his mother at different place. The suit was filed for F
partitioning the joint family property, namely, agricultural land in Survey
No.60/A admeasuring 7 acres 3 gunthas, 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.601 A in favour
of defendant No.3 (Malatibai) by a registered sale deed dated 25.4.1973. It G
is alleged that Anantdeo was the 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 !0.10.1979, 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 H
214 SUPREME COURT REPORTS [2002] SUPP. 4 S.C.R.

A raised by Anantdeo and arrived at the conclusion that it was joint family
property and that defendant No. 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
B also directed mesne profits from the date of the suit until delivery of possession.

Against that preliminary decree, Anantdeo and Malatibai had filed
Regular Appeal No.130/1979, which was dismissed on 31st December, 1981.
Thereby, the preliminary decree for partition became "'~al. Pending the said
appeal, respondent No.3 Baburao filed a suit being Regular Civil Case No.288
C of 1981 for injunction against Anantdeo and Malatibai, that is, father and
wife of the present appellant No. I 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. 601A. A compromise decree was obtained on 23rd November, 1981.

D Anantdeo died on 8.1.1987. Thereafter, appellant No. I 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, 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 appellants were entitled
to 2/3rd share of the suit property. The contention of respondent No.3 was
E · negatived by holding as under:
" ........... Under such situation to my mind the opponent no.3 was
aware about the dispute between the original plaintiffs and Anantdeo
and opponent no. I and hence he could have suo moto joined as
defendant in the earlier suit raising the contention that he is tenant in
F the suit land. 'Batai Patra' alleged to have been executed by Anantdeo
in favour of opponent no.3 is not produced on record. Moreover,
there is no entry in the record of right of the suit land to that effect.
Hence, I am of the opinion that the opponent no.3 cannot be said to
be in possession of suit land on the basis of 'Batai Patra' and his
G possession over the suit land is in other capacity.

.......... For these reasons I hold that the opponent no.3 is not having
right ov'er the suit land since 1977 as contended by him. Therefore,
I answer this point in the negative."

H The decree was sent to the Collector for effecting partition.
VENKA TRAO ANANTDEO JOSHI v. SAU MALATHIBAI [SHAH. I.] 215

"Against that order, appellants preferred appeal which was dismissed A
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 B
Court.

Against that judgment and order, the appellants filed Appeal from Order
in the High Court. The High Court dismissed the same by impugned judgment.
Hence, this appeal.

At the time of hearing of this appeal, learned counsel for the appellants C
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 crystalised 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 /is pendens. In any case, as the preliminary D
decree becomes final, it was not open for Baburao to raise such contention
at the time of passing of final decree for partition.

With regard to /is 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 E
executed by Anantdeo, it was not open to him to execute the same pending
disposal of the suit filed by appellant No. I for partition of the property. In
that suit, appellant no. I and his mother had challenged the transfer of land
out of Survey No.60/A and also for partition of the suit property. By elaboraie
judgment and order, the suit filed by the appellants was decreed to the extent F
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 remaining
portion was in possession of Malatibai, in view of 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 G
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 so-called transfer was without any
legal and family necessity as alleged and, therefore, appellants were entitled
to 2/3rd share in the suit property. In the Revenue Records also, there is no H
216 SUPREME COURT REPORTS [2002] SUPP. 4 S.C.R.

A mutation in favour of Baburao. Further, so called compromise decree in Civil
. Suit No.288 of 1981 against Anantdeo and Malatibai would not confer any
title against the appellant.

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
B the contention that he was a tenant of the suit premises. Section 97 of the
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.
[Ref. Moo! Chand and Ors. v. Dy. Director, Consolidation and Others, [1995]
c s sec 631].
In the result, the appeal is allowed accordingly and impugned judgment
and order passed by the High Court confirming the judgment and order
passed by the Additional District Judge, Latur in RCA No.314/93 is set aside.
· The order passed by the trial Court is restored. There shall be no order as to
D costs.
S.K.S. Appeal allowed.

.
•

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