THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL REVISION PETITION NO.3307 OF 2007 DATED:14.09.2011 Between: Turubilli Demudamma and others … Petitioners And Turubilli Pentayya and others … Respondents THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL REVISION PETITION NO.3307 OF 2007 ORDER: Defendant No.2, legal representatives of defendant No.4 and defendant No.3 have filed an application before the Court below for passing of final decree in pursuance of preliminary decree dated 27.1.1994 passed in O.S. No.34 of 1982 on the file of the Junior Civil Judge, Kothavalasa. That application was opposed by the plaintiffs/ respondent Nos.1 to 5 and other defendants – respondents primarily on the ground that after the preliminary decree, all the parties had settled the issue as to the partition among themselves by executing a settlement deed. It was also alleged that the said settlement deed is with the defendant No.2, who has sought passing of final decree without disclosing the said settlement among the parties. The petitioners also alleged that in terms of the said settlement between the parties, some of the properties were sold by the parties jointly and third party interests have intervened. It is in those circumstances that the plaintiffs opposed application for passing of final decree in view of the subsequent events whereunder the parties have settled the partition issue by executing a settlement deed and acted in pursuance thereof. The Court below, however, found that no document of the settlement, as alleged by the plaintiffs, is produced before the Court and admittedly the said settlement is not recorded in the Court so as to enable the Court to pass final decree in terms of the said settlement. In that view of the matter, the trial Court allowed the application I.A. No.450 of 2001 for passing of final decree by appointing an Advocate Commissioner to divide the properties by metes and bounds and execute the commission after notice to the parties. Aggrieved thereby, the plaintiffs have preferred this revision. By virtue of status quo order passed by this Court on 3.8.2007, further proceedings in pursuance of the order of the trial Court have remained stayed. The learned counsel for the petitioners, representing the plaintiffs in the suit, vehemently contends and also relied upon the oral evidence produced by the petitioners herein, that there was a settlement deed between the parties, and the respondent No.1, i.e., defendant No.2 is holding the said document in his custody but has suppressed the same and sought for final decree notwithstanding the fact that in pursuance of the settlement deed parties have executed sale deeds as well. Learned counsel therefore submits that the Court below has not considered the said oral evidence and has directed division of properties by metes and bounds, which will completely destroy the deed of settlement entered into by the parties and further alienations made in pursuance thereof. Admittedly the document of settlement as alleged is not produced before the Court below and admittedly the said settlement was not recorded in the suit as an arrangement or adjustment among the parties. In the absence of production of the said document, the Court below had no option but to direct steps to be taken for the purpose of passing of final decree. It is well settled that suit for partition remains pending till a final decree is passed and merely because parties had entered into a settlement privately among themselves, after passing of preliminary decree, cannot render the preliminary decree either infructuous or inchoate. In the absence of any document being produced before the trial Court, the preliminary decree had to be given effect to and in that view of the matter the order of the Court below taking steps for the purpose of passing final decree as per the impugned order is clearly justified and tenable. In other words, a preliminary decree cannot abate by itself unless the parties are able to record before the Court any settlement subsequent thereto. Obviously petitioners have not taken any such step and as such their grievance in the present revision petition cannot be sustained. The Civil Revision Petition is therefore dismissed. However, this will not preclude the petitioners from approaching the trial Court for the purpose of establishing the alleged settlement and further acts of the parties in giving effect to the settlement by execution of registered documents in favour of third parties. The petitioners are free to lead evidence either primary or secondary as permissible in law, in support of their aforesaid plea and they are also free to request the Court below to recognize the settlement reached by and between the parties subsequent to the preliminary decree, in accordance with law. No costs. _______________________ VILAS V. AFZULPURKAR, J 14.9.2011 bnr