THE HON’BLE SRI JUSTICE K.C.BHANU APPEAL SUIT NOS.1008 AND 1161 OF 2001 COMMON JUDGMENT: Since both appeals arise out of same judgment, they are being taken up together and disposed of by way of this common judgment. 2. Appeal Suit No.1008 of 2001 by appellant-25th defendant and Appeal Suit No.1161 of 2001 by appellant-2nd defendant are directed against the judgment and decree, dated 29-12-2000, in O.S.No.38 of 1993 on the file of the I Additional District Judge, R.R. District at L.B.Nagar, Hyderabad, whereunder and whereby the suit filed by the plaintiffs for partition and separate possession of suit schedule properties and for allotment of 12/28th share to the plaintiffs and for allotment of half share to the 1st defendant was decreed preliminarily directing partition of suit schedule properties into 28 shares and for allotment of 12 shares to the plaintiffs having regard to the quality of the land being good or bad and for delivering separate possession of the same. The equities shall be worked out at the time of final decree after final disposal of the litigation between the parties. 3. The averments of the plaint in brief are as follows: 1st plaintiff and 1st defendant are sons and plaintiffs 2 to 4 are daughters of late Basith Jung @ Basith Khan, who left several immovable properties and died in December, 1947. Late Basith Jung also survived by a widow Asifunnisa Begum. There was a oral partition of the estate of late Basith Jung amongst his heirs and in the said partition, the suit lands fell to the share of Asifunnisa Begum, 3rd plaintiff and 1st defendant jointly. Under the said partition, 1st defendant has got 50% share, Asifunnisa Begum has got 25% share and 3rd plaintiff has got 25% share. An application for mutation was made in 1993 and the same was recorded. Asifunnisa Begum died in the year 1958 leaving behind plaintiffs and defendant No.1 as her only heirs. 1st defendant appears to have executed sale deed in favour of the defendants 3 to 13 and others. He also executed an agreement of sale in favour of 2nd defendant and the 2nd defendant filed O.S.No.168 of 1970 on the file of the V Additional Judge, City Civil Court, Hyderabad for specific performance of a contract and the plaintiffs got impleaded themselves in the suit. The Court did not consider the title of the plaintiffs and the decree is not binding on the plaintiffs. Hence, the suit. 4. 1st defendant filed written statement admitting the claim of the plaintiffs for partition and also claiming that the suit schedule properties are the joint family properties of the family and therefore, he has no objection for partition of the suit schedule properties. 5. 2nd defendant filed written statement denying the averments made in the plaint and stated that this defendant has no knowledge about the heirs of Basith Jung. This defendant purchased the property to an extent of Ac.312.17 guntas from the 1st defendant under an agreement of sale, dated 04-05-1961 and when the 1st defendant did not execute the sale deed, this defendant filed the suit O.S.54 of 1962, which was subsequently numbered as O.S.168 of 1970 on the file of the V Additional Judge, City Civil Court, Hyderabad. The said suit was decreed and challenging the same, some of the plaintiffs preferred an appeal in CCCA No.49 of 1972 and the same was dismissed holding that except the 1st defendant, others are not necessary parties to the suit. In pursuance of the decree, E.P.No.17 of 1976 was filed and the same is pending. This defendant has no knowledge about the various sale deeds executed by the 1st defendant in favour of defendants 3 to 13. The present suit is filed at the behest of 1st defendant in order to defeat the rights of the 2nd defendant and hence, it prayed to dismiss the suit. 6. 13th defendant filed written statement denying the averments made in the plaint and stated that she has no knowledge about the death of plaintiffs father and neither the plaintiffs nor their father had any manner of right, title and interest over the property. She is the absolute and exclusive owner, pattadar and in possession of the land bearing S.No.117/2 of Miyapur village by virtue of registered sale deed, dated 03- 10-1969 having purchased the same from 1st defendant and plaintiffs 2 and 3 and ever since the date of purchase, she is in possession of the same. She has no knowledge about the death of Asifunnisa Begum. Subsequent to purchase of the property by this defendant, either the 3rd plaintiff or 1st defendant or their mother were ever in possession of the property. She was not a party to the suit O.S.No.168 of 1970 and hence, she prays to dismiss the suit. 7. 18th defendant filed written statement stating that late Basith Jung was the owner and possessor of the land at Miyapur village including the land in Survey No.45. After his death, his legal representatives Smt.Meharunnisa Begum and others in pursuance of the oral partition effected among the family members, executed 23 sale deeds between the year 1986 to 1991 in favour of the defendant and conveyed an extent of Ac.125.00 cents of land in Survey No.45 and since then this defendant has been in possession of the property. When the second defendant started constructing the building, it did not fructify. It is true that the oral partition pleaded and the shares allotted to the plaintiffs. The 1st defendant is only entitled to 50% share and he cannot alienate more than that share. The rights of the 2nd defendant is only to seek for partition of the property even if he secured the decree for specific performance for more than extent. The defendant pleaded for allotment of the share of the land in Survey No.45 to him. 8. 25th defendant filed written statement denying the averments made in the plaint and stated that it did not aware of the fact that Basith Jung died in the year 1947 and there was an oral partition and that the wife of Basith Jung died in the year 1958. The 1st defendant entered into an agreement of sale on 26-08-1962 with defendants 3 to 7 for sale of Ac.136.00 cents of land in Survey No.44/1 of Miyapur village. The 1st defendant having received advance applied to the revenue authorities for permission to alienate and on 17-07-1963, the 1st defendant executed the registered sale deed in favour of defendants 3 to 7 with regard to the land in Survey No.44/1 and delivered possession. Mutation was also effected. Defendants 3 to 7 filed declarations under A.P. Land Reforms Act and no other person filed a declaration with regard to the land in Survey No.44/1. This defendant purchased the said land from defendants 3 to 7 under a registered sale deed and applied to HUDA for sanction of lay out and spent huge amount. This defendant is a bona fide purchaser for a value. Hence, this defendant prays to dismiss the suit. 9. Basing on the above pleadings, the following issues were settled for trial: 1.Whether the suit lands are the joint properties of the plaintiffs and defendant No.1 as pleaded by the plaintiffs or they were exclusive properties of 1st defendant as pleaded by D2 to D13? 2.Whether the plaintiffs are in joint possession and enjoyment of the suit lands? 3.Whether the plaintiffs are entitled for partition and separate possession of their share in the suit lands? 4.Whether the plaintiffs suit is barred by doctrine of estoppel in view of the judgment in O.S.No.168 of 1970 on the file of V Additional Judge, City Civil Court, Hyderabad? 5.Whether D2 to D7 and 9 to 13 are bona fide purchasers of suit lands from D1 for value without notice of rights of the plaintiffs? 6.Whether the plaintiffs suit is barred by limitation? 7.Whether the suit lands have been properly valued? 8.Whether Court fee paid is correct? 9.Whether D8 is necessary party to this suit? 10.To what relief? Additional Issue: Whether the defendant No.18 is entitled to the share to be allotted to the plaintiffs are the equities in the suit? 10. On behalf of the plaintiffs, P.Ws. 1 to 4 were examined and Exs.A1 to A11 were marked. On behalf of the defendants, D.Ws. 1 to 4 were examined and Exs.B1 to B55 were marked. 11. The trial Court after considering both oral and documentary evidence on record passed preliminary decree as above. Challenging the same, these two appeals are preferred. 12. Learned counsel appearing for the appellant in A.S.1161 of 2001 (D2) contended that to defeat the rights of the appellant who is an agreement holder, the present suit for partition was filed, that the appellant has got right, title and interest by virtue of Ex.B29 sale deed executed by the Court in pursuance of agreement of sale, that when it is the specific case of the plaintiffs that a oral partition has been effected after the death of Basith Jung, question of partition of the properties does not arise, that all the properties of Basith Jung have not been included in the schedule of the properties, that execution of sale deed in favour of the appellant is not denied or disputed, that the trial Court has given a finding that the total extent of land covered by very same survey number is Ac.640.00 cents and therefore 1st defendant is entitled half share in Ac.640.00 cents of land, that under no point of time, the sale deed is under challenge, that it is not the case of the plaintiffs in CCCA 49 of 1972 that the lands in question are joint family properties, that 1st defendant cannot execute agreement of sale and he is the best person to speak about all the contentions raised by the appellant, but he has not come to the witness box and the Faisal Patti which is heavily relied upon by the trial Court has not been acted upon, that doctrine of resjudicata prohibits the Court from entering into the enquiry which were already adjudicated and hence, he prays to allow the appeal. 13. Learned counsel appearing for the appellant in A.S.1008 of 2001 (D25) contended that this defendant is concerned only in respect of extent in Survey No.44/1 i.e., item No.3 of the suit schedule land, that 1st defendant executed sale deed, dated 17-09-1963 in favour of defendants 3 to 7 selling Ac.136.00 cents of land in Survey No.44/1 and defendants 3 to 7 were put in possession and defendants 3 to 7 also shown this land in the Land Ceiling Proceedings, that the plaintiffs have no claim or right over the suit schedule land, that subsequently this appellant purchased Ac.136.00 cents of land in Survey No.44/1 from defendants 3 to 7 under a registered sale deed, dated 09- 10-1979 and in pursuance of the same, this appellant is in possession and enjoyment of the property and thereafter, the said property was developed by obtaining necessary permission from the concerned and therefore, he is a bona fide purchaser for a valuable consideration. 14. On the other hand, learned counsel appearing for the respondents 14 and 15 (plaintiffs) contended that there was oral partition among the family members of Basith Jung, whereunder his son Baquer Khan got 50% share, wife Asifunnisa Begum got 25% share and daughter Sayeedunnisa Begum got 25% share and the same was duly recorded in the revenue records, that son, wife and daughter did not get any share in the oral partition, that as the other legal heirs have taken the properties in Hyderabad and other areas, the 1st defendant has no right to enter into an agreement of sale with 2nd defendant, that the suit for partition was filed for the reason that 1st defendant executed agreement of sale exceeding his entitlement of property, that 2nd defendant has not taken possession of the land through process of Court in pursuance of the execution of sale deed, that the appellants can claim equities by stepping into the shoes of 1st defendant and claim his share and work out equities at the time of passing of the final decree. Both counsel relied upon several decisions, which will be referred to at appropriate time. 15. Now the points that arise for determination are: 1.Whether the suit lands are the joint properties of the plaintiffs and defendant No.1 as pleaded by the plaintiffs or they were exclusive properties of 1st defendant as pleaded by D2 to D13? 2.Whether the plaintiffs are in joint possession and enjoyment of the suit lands? 3.Whether the plaintiffs are entitled for partition and separate possession of their share in the suit lands? 4.Whether the plaintiffs suit is barred by doctrine of estoppel in view of the judgment in O.S.No.168 of 1970 on the file of V Additional Judge, City Civil Court, Hyderabad? 5.Whether D2 to D7 and 9 to 13 are bona fide purchasers of suit lands from D1 for value without notice of rights of the plaintiffs? 6. Whether the defendant No.18 is entitled to the share to be allotted to the plaintiffs so as to claim equities? 16. POINT NOS. 1 TO 4: The schedule of the property is the agricultural lands to a total extent of Ac.359.17 guntas in various survey numbers of Miyapur village, Ranga Reddy District. One Basith Jung was the original owner of the suit schedule property and he died in December, 1947. 1st plaintiff and 1st defendant are the sons and plaintiffs 2 to 4 are the daughters of Basith Jung. Plaintiffs 5 to 13 are the legal heirs of 1st plaintiff. 2nd plaintiff died issueless. Plaintiff Nos. 14 and 15 are the legal heirs of plaintiff No.3. Asifunnisa Begum, who is no other than the wife of Basith Jung died in the year 1958. It is the case of the plaintiffs that in the year 1952 there was a oral partition of the estate of late Basith Jung among his heirs i.e., plaintiffs, 1st defendant and their mother. In the said partition, the land in question fell to the share of Asifunnisa Begum, 3rd plaintiff and 1st defendant in the ratio of 50% share to 1st defendant, 25% share to Asifunnisa Begum and remaining 25% share to plaintiff No.3. After the death of Asifunnisa Begum in the year 1958, all the shares have been redefined thereby 1st plaintiff got 2/28th share, 2nd plaintiff got 1/28th share, 3rd plaintiff got 8/28th share, 4th plaintiff got 1/28th share and 1st defendant got 16/28th share. It is not in dispute that 1st defendant executed agreement of sale in favour of 2nd defendant. As 1st defendant did not execute regular sale deed in pursuance of agreement of sale, 2nd defendant filed a suit in O.S.No.54 of 1962 on the file of V Additional Judge, City Civil Court, Hyderabad and later it was numbered as O.S.No.168 of 1970. By virtue of that agreement, 1st defendant agreed to sell Ac.312.17 guntas of agricultural lands in Miyapur village in Survey Nos. 8,19,44,56,69,87,88,92,94,95,97,98 and 117/1. The said suit was decreed directing defendants 1 to 5 therein to execute a regular sale deed in respect of suit lands. Challenging the same, CCCA 49 of 1972 was filed before this Court and this Court vide judgment, dated 03-04- 1975 partly allowed the appeal directing the 1st defendant to execute the sale deed as directed by the trial Court. But, insofar as decree of the trial Court directing the defendants 2 to 5 to join in execution of sale deed was set aside. In pursuance of the said decree, as the 1st defendant did not execute the sale deed, the Court executed the sale deed in favour of 2nd defendant. In view of various encumbrances on the undivided share of 1st defendant, the plaintiffs have decided on 01-08-1980 to have their share separated and filed the suit. 17. The case of the 2nd defendant is that since the judgment in CCCA 49 of 1972 on the file of this Court has become final, the present suit is not maintainable and the plaintiffs are not in possession of any portion of the schedule property. The case of the 18th defendant is that it purchased an extent of Ac.125.00 cents of land in Survey No.45 of Miyapur village under a registered sale deed and hence, it prays to allot the entire extent. The case of the 25th defendant is that he is a bona fide purchaser for a valuable consideration having purchased Ac.151.38 guntas of land in Survey No.44/1 of Miyapur village from defendants 3 to 7 under a registered sale deed, dated 09-10-1979. Therefore, this defendant is entitled to have the equities worked out allotting the land in Survey No.44/1 admeasuring Ac.136.00 cents of land towards the share of the 1st defendant who is admittedly having more than 58% share 18. Order XX Rule 18 CPC deals with decree in suit for partition of property or separate possession. The Court passes a decree for the partition of property or for the separate possession of a share therein. Sub-rule (2) provides that if and in so far as such decree relates to any other immovable property or to movable property, the Court may, if the partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree declaring the rights of the several parties interested in the property and giving such further directions as may be required. I n SHUB KARAN BUBNA @ SHUB KARAN PRASAD BUBNA V SITA SARAN BUBNA [1], it was held thus: “Partition' is a re-distribution or adjustment of pre-existing rights, among co-owners/ coparceners, resulting in a division of lands or other properties jointly held by them, into different lots or portions and delivery thereof to the respective allottees. The effect of such division is that the joint ownership is terminated and the respective shares vest in them in severalty. A partition of a property can be only among those having a share or interest in it. A person who does not have a share in such property cannot obviously be a party to a partition. "Separation of share' is a species of 'partition'. When all co-owners get separated, it is a partition. Separation of share/s refers to a division where only one or only a few among several co-owners/coparceners get separated, and others continue to be joint or continue to hold the remaining property jointly without division by metes and bounds. For example, where four brothers owning a property divide it among themselves by metes and bounds, it is a partition. But if only one brother wants to get his share separated and other three brothers continue to remain joint, there is only a separation of the share of one brother. In a suit for partition or separation of a share, the prayer is not only for declaration of plaintiff's share in the suit properties, but also division of his share by metes and bounds. This involves three issues: (i) whether the person seeking division has a share or interest in the suit property/ properties; (ii) whether he is entitled to the relief of division and separate possession; and (iii) how and in what manner, the property/ properties should be divided by metes and bounds? ( 5. ) In a suit is for partition or separation of a share, the court at the first stage decides whether the plaintiff has a share in the suit property and whether he is entitled to division and separate possession. The decision on these two issues is exercise of a judicial function and results in first stage decision termed as 'decree' under Order 20 Rule 18(1) and termed as 'preliminary decree' under Order 20 Rule 18(2) of the Code. The consequential division by metes and bounds, considered to be a ministerial or administrative act requiring the physical inspection, measurements, calculations and considering various permutations/ combinations/alternatives of division is referred to the Collector under Rule 18(1) and is the subject matter of the final decree under Rule 18(2). The question is whether the provisions of Limitation Act are inapplicable to an application for drawing up a final decree” 19. Where a decree is passed in a partition suit, normally, it determines and declares the rights of the parties. A preliminary decree in a partition suit is a step in the suit, which continues until the final decree is passed. Where an adjudication decides the rights of the parties with regard to all or any of the matters in controversy in the suit, but does not completely dispose of the suit, it is a preliminary decree. A preliminary decree is passed in those cases in which the Court has first to adjudicate upon the rights of the parties and has then to stay its hands for the time being, until it is in a position to pass a final decree in the suit. In other words, a preliminary decree is only a stage in working out the rights of the parties, which are to be finally adjudicated by a final decree. 20. Therefore, from the above provision, it is crystal clear that a preliminary decree is only declaring the rights of the several parties interested in the property. All the defendants are strangers to the family of Basith Jung. Their rights cannot be determined as they claim to be the purchasers of the properties from various co-owners or share holders. Therefore, the remedy of the defendants is to work out their remedies in the final decree proceedings so as to claim equities. 21. Now, it has to be seen whether the suit schedule property is the property of late Basith Jung or it was the exclusive property of the 1st defendant. 22. If the suit schedule property is the exclusive property of the 1st defendant, the plaintiffs would not be entitled to any share. If it is a property of late Basith Jung, then plaintiffs and 1st defendant are entitled to the share in accordance with law governing the law of inheritance. When the plaintiffs have come to the Court with a specific allegation that the schedule property is the property of Basith Jung, it is for them to establish the same. It is in the evidence that there was oral partition among heirs of Basith Jung and the property in Miyapur village fell to the share of son, widow and daughter and other properties of Basith Jung in other areas fell to the share of other share holders. The property in Miyapur village is shared in the ratio of 50% to Baquer Khan (son-D1), 25% to Asifunnisa Begum (wife-D2) and 25% to Sayeedunnisa Begum (daughter-D3). It is not in dispute before this Court that Asifunnisa Begum died intestate in the year 1958 and her properties devolved on all the children and as per the Muslim Law of Succession. After her property devolved on the heirs, their shares in the Miyapur properties are as under: 1.Baquer Khan 16/28 2.Rahiman Khan 2/28 3.Meharunnisa Begum 1/28 4.Sayeedunnisa Begum 8/28 23. P.W.1 has categorically stated that Basith Jung is her father, who died in the year 1947 and her mother died in the year 1958 and her property devolved on the legal heirs. She also stated that in the year 1952, all the properties of her father were partitioned orally. The name of 1st defendant was recorded in the revenue record. P.W.2 reiterated the evidence as testified by P.W.1. In support of the contentions of the plaintiffs, they relied upon the documents. Ex.A1 is the copy of the proceedings issued by the Tahsildar, which clearly goes to show that due to death of pattedar Abdul Basith Khan, the land in Survey Nos.18,19,44/1,45,69,77,88,56 admeasuring Ac.340.00 patta was sanctioned in favour of successors by Tahsil, half in the name of Md.Baquer Khan and remaining half in the names of Sayeedunnisa Begum and Asifunnisa Begum. Ex.A2 is the copy of Faisalpatti of Miyapur village for the year 1953. Contents of Ex.A1 is incorporated in this document.