THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN SECOND APPEAL No.805 OF 2011 AND CIVIL REVISION PETITION No.1988 OF 2011 COMMON JUDGMENT: S.A.No.805 of 2011: This Second Appeal is preferred against the order of the III Additional District and Sessions Judge, Anantapur in A.S. No.52 of 2007 dated 22.02.2011 dismissing the appeal preferred against the judgment and decree in O.S. No.9 of 1998 dated 11.04.2007 on the ﬁle of the Senior Civil Judge, Kadiri. The Appellant herein is the ﬁrst defendant in O.S. No.9 of 1998, a suit ﬁled by respondent – plaintiﬀ Nos.1 and 2 herein for declaration of title and recovery of possession. (parties shall hereinafter be referred to as they are arrayed in the Suit). The plaintiﬀs are the children of Sri B.L. Narayana Rao who died two years prior to the ﬁling of the Suit. They had earlier ﬁled O.S. No.19 of 1995 seeking partition and separate possession of their 4/7th share in the joint family properties. During the pendency of the said Suit, and despite an order of injunction against the second defendant not to alienate the suit schedule property, defendant Nos.2 and 3 executed a sale deed in favour of the ﬁrst defendant which, according to the plaintiﬀs, is hit by Section 52 of the Transfer of Property Act, 1882 (for short, ‘the Act’). Even during the pendency of the said suit, Defendant Nos.2 and 3 had delivered possession of the suit schedule property to the ﬁrst defendant. By virtue of a compromise decree, passed in O.S. No.19 of 1995 dated 20.01.1997, the suit schedule property in O.S. No.9 of 1998 fell to the share of the plaintiﬀs and, based thereupon, the plaintiﬀs acquired title over the suit schedule property. The plaintiﬀs also claimed damages at Rs.2,000/- per month for use and occupation by the ﬁrst defendant (appellant herein) of the suit schedule property ever since December, 1996. The ﬁrst defendant, in his written statement which was adopted by defendant Nos.2 and 3, contended that the second defendant was the only son of Sri B.L. Narayana Rao, he was looking after his parents till their death; Sri B.L. Narayana Rao had relinquished his right over the suit schedule property during his life time in favour of the second defendant’s son by receiving consideration of Rs.50,000/-; since then, the second defendant was enjoying the suit schedule property by paying taxes to the Municipality; he had perfected his title by adverse possession; the second defendant had let out the suit schedule property to the family members of the ﬁrst defendant in the year 1992; subsequently, in the year 1994, he had mortgaged the property to the ﬁrst defendant’s brother Sri Satrasala Subrahmanyam for Rs.45,000/- in discharge of his debts; with a view to discharge the mortgage and other debts, the second defendant had not only sold the suit schedule property to the ﬁrst defendant for Rs.2,50,000/- under registered sale deed dated 20.12.1996, but had also delivered possession to the ﬁrst defendant; the second defendant, and the other parties in O.S. No.19 of 1995, had colluded to bring into existence the compromise decree dated 20.01.1997; as the ﬁrst defendant was not a party to the Suit in O.S.No.19 of 1995, the said decree was not binding on him; the ﬁrst defendant was not even aware of the Suit in O.S. No.19 of 1995; he is a bona fide purchaser of the suit schedule property for valuable consideration under registered sale deed dated 20.12.1996; and the sale deed dated 20.12.1996 executed in favour of the ﬁrst defendant is not hit by Section 52 of the Act. In his additional written statement, the ﬁrst defendant contended that the Suit itself was barred by limitation, and was beyond the pecuniary jurisdiction of the Court. In his additional written statement the second defendant pleaded that, due to misunderstanding in the year 1981 between himself and his sister, partition was eﬀected in which he was allotted house bearing Door No.8/359 along with Ac.3-00 of land; the said landed property was sold away by his father; his father bequeathed his property in favour of his son Jayasimha under a registered Will dated 11.02.1993; the Will came into force on the death of his father i.e., on 15.06.1993; the compromise decree was never acted upon as a substantial portion of the property was already alienated, by the second defendant and his father, much before the compromise decree; the plaintiﬀs were provided with substantial movable properties at the time of their marriage; by the date of ﬁling of the Suit neither was any joint family property in existence nor were the plaintiffs in joint possession of any property. The Trial Court initially framed three issues, and three additions issues were framed later. The Trial Court noted that the Suit for partition in O.S. No.19 of 1995 was ﬁled by the plaintiﬀs in the year 1995, and a compromise decree was passed on 20.01.1997; the ﬁrst defendant had purchased the suit schedule property from defendant Nos.2 and 3 and their children under Ex.B5 registered sale deed on 20.12.1996, during the pendency of O.S. No.19 of 1995; in cross- examination, DW.1 had admitted that the second defendant (one of his vendors) was his childhood friend; he had also admitted that his house was near the house of the second defendant, and from the beginning he used to know about the family aﬀairs of the second defendant; and DW.1 had also admitted that the suit schedule property was the joint family property of the plaintiﬀs and the second defendant. The Trial Court held that it was evident that the ﬁrst defendant had knowledge of the pendency of O.S. No.19 of 1995 by the date of purchase of the suit schedule property, from defendant Nos.2 and 3 and their children, under Ex.B5 registered sale deed dated 20.12.1996; DW.1 was also closely acquainted with the family of the plaintiﬀs, and the second defendant; he was a tenant of the plaintiﬀs for some time in one of the rooms of the suit schedule property; DW.2 had admitted that, by the date of purchase of the suit schedule house by the ﬁrst defendant, O.S. No.19 of 1995 was pending; it was evident that DW.1 had knowledge about the pendency of O.S. No.19 of 1995 when he purchased the suit schedule property under Ex.B5 registered sale deed dated 20.12.1996; it was improbable and unbelievable that DW.1 had no knowledge about the pendency of the partition Suit in O.S. No.19 of 1995 ﬁled by the plaintiﬀs, against the second defendant and others, for division of the suit schedule property; the second defendant had signed on the compromise petition ﬁled in O.S. No.19 of 1995 which showed that the second defendant had knowledge not only about the pendency of O.S. No.19 of 1995, but also regarding passing of Ex.A1 compromise decree dated 20.01.1997; the second defendant in the present suit also ﬁgured as the second defendant in O.S. No.19 of 1995; though the second defendant had initially adopted the written statement ﬁled by the ﬁrst defendant, he had ﬁled a separate additional written statement thereafter; he did not choose to enter into the witness box or to depose that he was not served with summons in O.S. No.19 of 1995, and had no knowledge about the pendency of O.S. No.19 of 1995 by the date of alienation of the suit schedule property in favour of the ﬁrst defendant; the second defendant had neither ﬁled any appeal nor a Suit to set aside the judgment and decree in O.S. No.19 of 1995 dated 20.01.1997; it was evident that, despite knowledge about the pendency of the partition suit, the ﬁrst defendant had purchased the suit schedule property from defendant Nos.2 and 3 and their children, which falsiﬁed his contention that he was a bona fide purchaser of the suit schedule property for valuable consideration without knowledge of the Suit in O.S. No.19 of 1995. The Trial Court observed that, though the second defendant in his additional written statement had pointed out that the plaintiﬀs and B.L. Krishna Murthy, by misrepresenting facts, had obtained his signature on the compromise petition ﬁled in O.S. No.19 of 1995, the second defendant had neither ﬁled any appeal against, nor had he ﬁled any Suit to set aside, Ex.A1 compromise decree dated 20.01.1997; the second defendant was the proper person to speak about the alleged partition between his father and his father’s brother B. L. Krishna Murthy, and another partition between himself and his father B.L. Narayana Rao; he was the person competent to speak about the manner in which the properties, including the suit schedule property, were dealt with by him and his son; but, surprisingly, the second defendant had not entered into the witness box to prove the assertions in the written statement; as better evidence was withheld by the defendants, by non-examination of the second defendant, an adverse inference under Section 114 of the Indian Evidence Act, 1872 could be drawn against them. The Trial Court further observed that there appeared to be a collusion between the ﬁrst and the second defendants to defeat the rights of the plaintiﬀs over the suit schedule property under Ex.A1 compromise decree dated 20.01.1997; having purchased the property, it was but natural for the ﬁrst defendant to contend that he was a bona fide purchaser of the suit schedule property without knowledge of pendency of O.S. No.19 of 1995 in order to save Ex.B5 registered sale deed dated 20.12.2006 from attracting the provisions of Section 52 of the Act; the defendants had failed to prove their contention that Ex.A1 was a collusive decree passed in O.S. No.19 of 1995; except, on the ground of collusion, Ex.A1 compromise decree dated 20.01.1997 passed in O.S. No.19 of 1995 could not be challenged or questioned on any other grounds in the instant Suit by the defendants, as the Suit was filed by the plaintiffs seeking declaration of title and recovery of possession, and it was not a Suit ﬁled by the defendants to set aside Ex.A1 compromise decree; the contention of the defendants that the plaintiﬀs and B.L. Krishna Murthy had misrepresented, and had obtained the signatures of the second defendant in the compromise decree, remained unproved as the second defendant did not enter the witness box; likewise, the contention that defendant Nos.3 to 6 in O.S. No.19 of 1995 did not sign on the compromise petition was not useful to the case of the defendants. The Trial Court held that the defendants had neither averred in the written statement, nor had they produced any evidence to the eﬀect that Ex.A1 compromise decree dated 20.01.1997 related to any property other than the suit schedule property; Ex.A1, being a decree passed by a competent Court of law, did not require to be proved by any other evidence; on the basis of the bald statements of DWs.1 to 6, it could not be said that Ex.A1 was a collusive decree passed in O.S. No.19 of 1995; the said decree was admissible in evidence; as long as Ex.A1 compromise decree was not set aside either in an appeal or in a separate Suit the said decree, under which the suit schedule property was allotted to the plaintiﬀs, stood good; thus the title of the plaintiﬀs over the suit schedule property was established under Ex.A1 compromise decree dated 20.01.1997; the sale transaction under Ex.B5 registered sale deed dated 20.12.1996 was hit by Section 52 of the Act as it took place during the pendency of O.S. No.19 of 1995; the said document was, therefore, void; and the plaintiﬀs were entitled to the relief of declaration of title of the suit schedule property, and for recovery of possession of the same from the defendants as prayed for. The Appellate Court noted that the second defendant, who was also the second defendant in O.S. No.19 of 1995, had neither entered the witness box nor had he denied knowledge of the ﬁling of the Suit in O.S. No.19 of 1995; admittedly he did not ﬁle any appeal to set aside the compromise decree passed in O.S. No.19 of 1995; the compromise decree, passed in the year 1995, was not challenged by any party; the second defendant did not even ﬁle a Suit to set aside the decree passed in O.S. No.19 of 1995 on the ground that it was a fraudulent decree or that the plaintiﬀs had misrepresented, and had thus obtained his signature on the compromise memo; there was strong evidence to believe that the first defendant had knowledge about the pendency of the suit in O.S. No.19 of 1995, and passing of the compromise decree; the ﬁrst defendant, despite knowledge of the pendency of the litigation, had purchased the property from defendant Nos.2 and 3 and their children under Ex.B5 sale deed dated 20.12.1996; the second defendant had knowledge about the ﬁling of O.S. No.19 of 1995 by the plaintiﬀs as also regarding the compromise decree to which he was a party; the second defendant could not, therefore, contend that the compromise decree was collusive or that the plaintiﬀs had misrepresented, and had obtained his signature; no evidence was adduced by the second defendant to prove fraud or misrepresentation; the ﬁrst defendant failed to prove that he had no knowledge about the pendency of the litigation nor that he was a bona fide purchaser for value; no evidence was adduced by the second defendant regarding partition of the properties between himself and his father, and between his father and B.L. Krishna Murthy; the second defendant had contested O.S. No.19 of 1995, but had not pleaded that there was partition between himself and his father or that there was a division between his father and his father’s brother B.L. Krishna Murthy by the date of the compromise decree dated 20.01.1997; no such plea was taken by the second defendant in the Suit; the alleged Will was never produced before the Court; the pleadings in the additional written statement were not proved; the ﬁrst defendant failed to prove that he was a bona fide purchaser for value without knowledge of the pendency of the Suit in O.S. No.19 of 1995; the plaintiffs had proved that defendant Nos.2 and 3 and their children had executed Ex.B5 registered sale deed in favour of the ﬁrst defendant on 20.12.1996, with full knowledge about the pendency of the Suit in O.S.No.19 of 1995; the decree passed in O.S. No.19 of 1995 was binding on the ﬁrst defendant; he could not avoid the decree contending that he was not a party to the Suit; burden was on the ﬁrst defendant to prove that he had no knowledge about the suit transaction, and that the second defendant never revealed to him either regarding the litigation or of the passing of the decree; the ﬁrst defendant had failed to discharge his burden; defendant Nos.3 to 6 in O.S. No.19 of 1995 had ﬁled a memo stating that they were not having any interest over the suit schedule property; in such circumstances Ex.A1 compromise decree was valid even without the signatures of defendant Nos.3 to 6 in O.S. No.19 of 1995; the ﬁrst defendant had pleaded that the house was let out to his family members, and subsequently it was mortgaged to his brother by the second defendant; on the other hand the plaintiﬀs had contended that, in their absence and without their knowledge, defendant Nos.2 and 3, knowing fully well that O.S. No.19 of 1995 was pending, had collusively executed a registered sale deed in favour of the ﬁrst defendant, and the same was hit by Section 52 of the Act; in these circumstances, it was diﬃcult to believe that they had come to know of all these aspects just six months prior to the ﬁling of the Suit, and hence had ﬁled the Suit; the ﬁrst defendant was not a bona fide purchaser for value without knowledge of the litigation and he was not entitled for equities. The ﬁrst Appellate Court also rejected the contention regarding limitation, and lack of pecuniary jurisdiction. Before this Court Sri R. Radha Krishna Reddy, Learned Counsel for the appellant, would submit that both the Courts below did not examine the scope of Section 52 of the Act, and had shifted the burden on the appellant, though the burden could not be shifted on him; the compromise decree in O.S. No.19 of 1995 was only a preliminary decree, which had not attained ﬁnality; damages were granted by the Courts below suo motu without there being any evidence or any issue having been framed; and Section 52 of the Act had no application as compromise decree proceedings were collusive in nature. Learned Counsel would rely on S. Sai Reddy v. S. Narayana Reddy [1] and K. Venkatachala Bhat v. Krishna Nayak (D) by Lrs[2] in this regard. On the other hand Sri A. Manjunath, Learned Counsel for respondent Nos.1 and 2 (the plaintiﬀs in O.S. No.9 of 1998), would submit that no appeal had been preferred against the compromise decree in O.S. No.19 of 1995; both the Courts below had held that the appellant- defendant No.1, and the third respondent-defendant No.2, had colluded with each other; the appellant, who had purchased the property, was aware of the partition Suit; while the appellant had initially ﬁled a written statement, the third respondent, (i.e., his vendor), had initially ﬁled only a memo adopting the written statement ﬁled by the appellant; after amendment of the plaint, the vendor (second defendant) had ﬁled an additional written statement seeking to plug all the loopholes; the third respondent did not enter into the witness box, and did not let in any evidence regarding the compromise decree being collusive in nature; and there was a speciﬁc plea in the plaint seeking damages for which there is no rebuttal in the written statement. Learned Counsel would rely on Panchangula Venkatasubbamma v. Kambhampati Venkatappaiah Sastri[3] Deepa Bhargava v. Mahesh Bhargava [4]; Nerusu Seetharavamma v. Nerusu Durgaiah [5]; and Meesala Tayaramma v. Boggavarapu Subba Rao Choultry[6]). Section 52 of the Transfer of Property Act (for short “the Act”) stipulates that, during the pendency in any Court of any suit or proceeding which is not collusive, and in which any right of immovable property is directly and speciﬁcally in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to aﬀect the rights of any other party thereto under any decree or order which may be passed therein, except under the authority of the Court and on such terms as it may impose. It is not in dispute that the Appellant herein purchased the suit schedule property during the pendency of O.S. No.19 of 1995 from the 3rd respondent herein, and such transfer was not under the authority of the Court much less on any terms which it had imposed. The prohibition under Section 52 would, therefore, apply in case the suit or proceeding in question was not collusive in nature. Both the Trial court and the ﬁrst Appellate court have held that the decree in O.S. No.19 of 1995 was not collusive. The Trial court further held that the sale transaction under Ex.B.5 registered sale deed dated 20.12.1996 was hit by Section 52 of the Act as it took place during the pendency of O.S. No.19 of 1995; defendants 2 and 3 in O.S. No.9 of 1998, (the appellant and the 3rd respondent herein), knowing fully well that O.S. No.19 of 1995 was ﬁled had collusively executed the registered sale deed; and the same was hit by Section 52 of the Act. The contention of the Learned Counsel for the appellant that both the courts below did not examine the scope of Section 52 of the Act does not, therefore, merit acceptance. I n Meesala Tayaramma 6 this Court held that this Court would not, ordinarily, disturb concurrent ﬁndings of fact in a second appeal. As the concurrent ﬁndings recorded by both the Courts below is on an appreciation of the evidence on record, and cannot be said to be a perverse ﬁnding, such concurrent ﬁndings do not necessitate interference in a second appeal filed under Section 100 C.P.C. Next, the contention of the Learned Counsel for the appellant that the compromise decree in O.S. No.19 of 1995 is only a preliminary decree, and has not attained finality. In S. Sai Reddy1, the Supreme Court held that partition of a joint Hindu family could be eﬀected by various modes viz., by family settlement, by a registered instrument of partition, by oral arrangement by the parties, or by a decree of the Court; when a suit for partition is ﬁled in a court, a preliminary decree is passed determining shares of the members of the family; the ﬁnal decree follows, thereafter, allotting speciﬁc properties and directing the partition of the immovable properties by metes and bounds; unless and until the ﬁnal decree is passed, and the allottees of the shares are put in possession of the respective shares, the partition is not complete; the preliminary decree which determines shares does not bring about the ﬁnal partition, and it is only if the allottees of the shares are put in possession of their respective shares that the partition is complete. It is necessary to bear in mind that the decree in O.S. No.19 of 1995 dated 20.01.1997 is a compromise decree. The question, under what circumstances would a compromise decree be held to be a preliminary or a ﬁnal decree, was considered by a Division bench of this Court in Panchangula Venkatasubbamma3. The Division Bench held that the answer to the question whether a compromise decree was only a preliminary, or a ﬁnal, decree would turn upon the construction of the relevant provisions contained in the decree, which in their turn give an indication of the intention of the parties to the compromise on which the decree was based; where the compromise decree pointed to the fact that the suit is ﬁnally disposed of, and there was nothing more for the trial court to do in the matter, it would amount to a ﬁnal decree, and that the parties intended the decree to be final, and not preliminary. It is not in dispute that the property which is the subject matter of the suit in O.S. No.9 of 1998 had, as a result of the compromise decree in O.S. No.19 of 1995 dated 20.1.1997, fell to the share of the plaintiﬀs in O.S. No.9 of 1998. It is evident, therefore, that the parties intended that the compromise decree was, in fact, a ﬁnal decree. Respondent No.3 herein, (i.e., the 2nd defendant in O.S. No.9 of 1998), was a party to the compromise decree in O.S. No.19 of 1995. As noted by both the Courts below, he neither ﬁled an appeal nor any suit to set aside the compromise decree dated 20.1.1997; and he did not even depose in the subsequent suit in O.S. No.9 of 1998 though he was the person competent to speak in this regard. It is not even the case of the Appellant, or the 3rd respondent herein, that Ex.A.1 compromise decree dated 20.1.1997 related to any property other than the suit schedule property in O.S. No.9 of 1998. The suit schedule property was allotted to the plaintiﬀs under the compromise decree, in O.S. No.19 of 1995 dated 20.01.1997; and the title of the plaintiﬀs over the suit schedule property was established under the said compromise decree dated 20.1.1997. I n Deepa Bhargava4, the Supreme Court held that, where parties are entitled to a compromise decree and a decree was passed thereupon, such a decree remained valid unless set aside and, if there was no challenge to the validity or otherwise of the said consent decree and it was acted upon, it was impermissible for the parties to resile therefrom. It is necessary to note that the contention that the compromise decree dated 20.1.1997 is a preliminary decree, and not a ﬁnal decree, has been raised