THE HON’BLE SRI JUSTICE B.PRAKASH RAO AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD C.C.C.A. 201 of 2009 JUDGMENT: (Per BPR,J) This appeal under Section 96 of C.P.C. is as the instance of the appellants herein, of which appellant No.1 is a Cooperative Society and whereas the other appellants are claiming to be the purchasers of the respective properties with the appellant No.1. All the appellants are the third parties and the appeal is being preferred with leave granted by a Division Bench of this Court in C.C.C.A.M.P.No.636 of 2009 as per the orders dated 20.12.2009 and also granted interim stay and injunction as per the orders in C.C.C.AM.P.No.638 of 2009 and 639 of 2009 respectively on the even date. The appeal is being preferred as against the judgment and final decree in I.A.No.913 in 2008 in O.S.No.12 of 2005 on the file of the I Additional Chief Judge, City Civil Court, Secunderabad, and also against the preliminary decree dated 28.01.2008 passed in the said suit for partition. The suit was filed on 17.02.2005 by the plaintiffs seeking partition of the plaint schedule property into seven equal shares and to allot one such share to the plaintiffs and also to declare the decree and judgment in O.S.No.1337 of 1987 dated 25.04.1994 on the file of the 1st Assistant Judge, City Civil Court, Secunderabad as null and void and to grant perpetual injunction against the defendant No.1 restraining him from dispossessing the plaintiff Nos. 1 to 4 from the joint possession of the plaint schedule property. According to the plaintiffs therein, the property originally belonged to one Kalika Prasad, who is the grandfather of plaintiff Nos.1 to 3 and father-in-law of the plaintiff No.4, in a public auction held by the government in the year 1952. He died on 28.07.1959 leaving behind two sons and five daughters and thus the plaintiffs and other daughters are the legal representatives who are entitled to the respective shares. However, it is stated that by taking undue advantage of the death of the Kalika Prasad, a suit was filed in O.S.No.1886 of 1989 on the file of the I Additional Judge, City Civil court, Hyderabad, for partition and separate possession of the plaint schedule property, whereas the defendant No.1 also filed another suit in O.S.No.1337 of 1987 on the file of the I Assistant Judge, City Civil Court, Secunderabad and also filed E.P.No.73 of 2003 in O.S.No.1337 of 1987 trying to take possession of the plaint schedule property. However, a preliminary decree was obtained in O.S.No. 1886 of 1989 which, according to the plaintiff, is null and void. Hence, the suit. The defendant No.1 filed a written statement apart from another written statement by defendants 2 and 17. The other defendants also filed a counter claim to pass a preliminary decree. Some of the defendants filed a separate memo claiming a share. Some evidence seems to have been recorded for P.W.1 and marked Exs.A-1 to A-27, which was taken in a cursory way as if showing the entitlement of the plaintiffs, and accordingly a preliminary decree was passed on 28.01.2008. Thereafter, on initiation of the proceedings for final decree on 03.03.2008, a final decree came to be passed on 30.04.2009. The present appeal, at the instance of the third parties, is filed stating that they came to know on 23.12.2009 when the respondents 1 to 3 attempted to interfere with the possession of property in pursuance final decree. Hence they obtained the copy of the final decree and filed an appeal. Since the appellants are not parties to the proceedings, a cursory narration is given as to the decree events, which warranted the appellants to approach this Court by way of this appeal, and the narration of which is quite apt and necessary to be stated and it runs as follows: 1. One Late Kalika Prasad, had purchased land admeasuirng 6 acres 8 guntas in Sy.No.66/1, corrsponding to old Sy.No.62, situated at Trimulgerry, Secunderabad Cantonment, under a public auction held by the Government in 1352 Fasli and he was put in possession of the same. The said Late Kalika Prasad, expried intestate leaving ehind one Son b y name K. Munnala, (who died on 17-04-1990) and daughters by name Smt. Bhaganthi Bai, (Mother of Respondent No.27) Smt. Janaki Bai, (Mother of Respondents 28 to 35) Smt. Gangia Bai, (Mother of Respondents 36 to 42), Smt. Sukiya Bai (Mother of Respondents 43 to 49) and Smt. Bichu Bai, as his heirs and LRs. The daughters of the said Late Kalika Prasad, filed OS 1886/1989, against their brother (the only son of Late Kalika Prasad) viz. K. Munnala, on the file of Learned 1st ACJ, CCC, Hyderabad, seeking for partition and separate possession of their respective shares. In the said suit the final decree for partition is passed on 05-02-1990, dividing the properties and alloting separate shares to the daughters and the son of Late Kalika Prasad, which has become final. 2. First Appellant, purchased 4 acres or 160 guntas of land through four different sale deeds from the daughters of Late Kalika Prasad, through registered sale deeds bearing Nos. 294/90, 1316/91, 1317/91, 1377/91, 1378/91 dated 07-02-90, 18-6-91, 26-6-91 and 26-6-91, respectively, and were put in possession of the said lands. First appellant, in turn, had laid out 49 plots and allotted to its various members individual members who are in possession of their respective plots. Plot No.43 was allotted to 2nd Appellant and Plot No.10 was allotted to 3rd Apellant, and they are in peaceful possession of the same. The priliminary Decree and Final Decree under Appeal relate to the said extent purchased by 1st Appellant. 3. First appellant learnt that one Mr. P.Ram Chandra Reddy, deceased Respondent No.8 whose LRs are (Respondent Nos.41 to 3 and 51 herein) had filed a suit OS.No.1337 of 1987, on the file of th4e then 1st Asst. Judge, CCC, Secunderabd, (Now 1st Jr. Civil Judge, CCC, Secunderabad), seeking for specifiic performance of agreement dated 14-06-1969, in respect of 5 acres 25 guntas of land against K. Munnalal (father of Respondent Nos. 10 to 26 and Husband of respondent No.9), son of Late Kalika Prasad. 4. First appellant, who was impleaded in the suit a Defendant No.4, in OS No.1337/1987, and its vendors are impleaded as Defendant Nos.10 to 14. In the said suit OS.No.1337/1987, the vendors of the first appellant have categorically pleaded of the Final decree in OS 1886/1989, and also exhibited the preliminary decree and final decree as Ex B-1 and B-2. The Hon’ble 1st Asst. Judge, decreed the suit of Late P. ramchandra Reddy, on 25-04-1994, to the extent of 1/6th share, out of Ac.5 and 25 Guntas, categorically holding that the vendors of first appellant had a share in the suit shcedule proeprty, and that at the most K. Munnalal could have only entered into agreement of sale in respect of his 1/6th share. The deceased Munnalal, had preferred AS.134/1996, before the Learned 1st ACJ, CCC, Secundeabad, aggrieved by the judgment in OS 1337/1987, to which first appellnat is also arrayed as Resondent No.4. On contest by first appellant, the appeal in AS 134/1996, was dismissed by judgment and decree dated 14-06-2002. The deceased P. Ramchandra Reddy, filed SA 980/2002, before this Hon’ble Court aggrieved by the confirming judgments and decree in OS.1337/1987, and AS 134/1996. The said SA was contested by first appellant herein and the same is also dismissed on 04-03-2004. Late P. Ramchandra Reddy, preferred a Review Petition in Review CMP No.964/2005, and first appellant herein has contested the same, which is also dismissed by its Order daed 21-06-2005. 5. Late P. Ramchandra Reddy, filed EP 73/2003, on the file of the learned 1st Jr. Civil Judge, CCC, Secunderabd, for execution of Sale Deed and for delivery of possession of 1/6th share of the suit schedule propety in EP 73/2003. 6. Respondents 1 to 4 herein claiming to be the legal heirs of the Puranlal, alleged son and Late Kalika Prasad, (the original owner of the land in Sy.No.66/1), filed a claim petition in EA No.530/2003, seeking for dismissal of the EP No.73/2003, on the ground that a decree in OS 1337/1987, is null and void and that they are not parties to the said decree. The said claim petition, on merits was dismissed holding that R-1 to 3 and 51 herein have failed to prove that they are legal heirs of Late Kalika Prasad. 7. When the claim petition in EA 530/2003 in EP 73/2003, on the file of learned 1st Jr. Civil Judge, Secunderaad, is pending, it wold appear that Rspondent Nos. 1 to 4, filed OS 12/2005, before the learned 1st ACJ, CCC, Secunderabad, on 17-02-2005, seeking for partition of the suit schedule property viz, 6 acres 8 guntas in Sy.No.66/1, Trimulgerry, Secundrabad Cantonment, and for cancellation of the decree in OS 1337/1987, dated 25-04-1994, on the file of 1st Asst. Judge, Secunderabad, and for perpetual injunction to restrain the deceased P. Ramchandra Reddy, R-8 herein, from dispossession R-1 to 3 and 51, from their alleged joint possession of the property and for costs. Though in the contents of the suit refer of the Final decree in OS 1886/1989, on the file of the Hon’ble 1st Asst. Judge, Secunderabad, as not being binding on the alleged ground of collusion among the parties there under, have not chose to question the said final decree in OS 1886/1989. Though the first appellant is arrayed as Defendant No.4 in OS 1337/1987, and though plaintiffs are aware of the fact of the fi4rst appellant having purchased the shares of the daughters of Late Kalika Prasad, through registered sale deeds and though Respondent Nos. 1 to 4 are aware of the fact of members of first appellant being in possession of the purchased propety deliberately and wantonly Respondent Nos.1 to 4 have not chosen to implead the first appellant as a party to the suit under appeal. 8. Respondent No.8, who filed a written statement in OS 21/2005, on 24-07- 2006, categorically pleading that Respondetn Nos.1 to 4’s ancestor (Puranlal) son of Late Kalika Prasad, and that the said claim of Respondents Nos.1 to 4 having been negatived on merits in EA No.530/2003, in EP No.73/2003, in OS No.1337/1987, on the file of 1st Jr. Civil Judge, CCC, Secunderabad, and also further pleaded that Repondent Nos.1 to 3 and 51 not having any legal right in view of Respondent Nos.1 to 3 and 51 not seeking to set aside the decree in OS 1886/1989, on 02-02-1990, on the fil eof 1st Addl. Judge, CCC, Hydreabad, the said impugned suit under appeal is not maintainable in view of the judgment under the said suit OS 1886/1989, operating as Res judicata, and further pleaded that the said judgment cannot be ignored as non-est, null and void in law and that Respondent Nos.1 to 4 as plaintiffs were never in joint possession of the suit schedule property. The other daughters/LRs of Late Kalika Prasad, having colluded with Respondent Nos 1 to 4 have filed a concentive written statement for decreeing the said impugned in the appeal. During he pendency of the suit in OS 12/2005, Respondent No.8 expired and his LRs, who are Respondent Nos 1 to 3 and 51 are impleaded as defendants 44 to 47. After their impleadment, they filed written stattement on 13-11-2007, contrary to the stand taken by deceased Respondent No.8, almost conceding to the case of Respondent Nos 1 to 4, along with the counter claim. 9. Even before issues in the suit are framed, Reespondent No.4 in the appeal (4th plaintiff in the impugned suit) had filed her chief examination affidavit along with certain documents. The court below, without looking into the contents of the written statement filed by deceased Respondent No.8 (Defendant No.1) and without looking into the fact of thired party interests in the immovable property, in view of the daughters of Late Kalika Prasad, having sold their respective shares and without making them as proper and necessary parties to the suit, for the purpose of deciding the equities, at the time of allotment of shares to the parties, and wihtout framing any issues with rgard to the impact of the judgment and decree in OS 1886/1989, and without adudicating upon as to whether the LRs of the deceased defendant could file their written statement contrary to the stand taken by deceased Respondent No.8, had passed, laconic judgment and decree without discussion to the various contentions raised in the suit, contrary to the law laid down by the Hon’ble Court in Sivudu Naidu Vs. Laxminarayana passing a preliminary decree for partition and dismissing the relief set aside the judgment and decree in OS 1337/1987, dated 25-04-1994, and other reliefs. 10. The LRs of Respondent No.8, viz, Respondent Nos.1 to 3 have filed IA 913/2008, for passing a final decree after appointment of a commissioner even though no such relief for passing of a final decree for delivery of possession is sought for in the relief in the suit. It would appear that the lower court after appointment of Advocate Commissioner and after pursuing his report, which categorically states about constructions being made in the schedule property by third parties, had passed a Final decree based upon the report of the Commissioner. 11. Armed with the passing of the said final decree, Respondents 1-3, filed EP 123/2009, seeking for delivery of possession of the alleged allotment of 2083 sq. yards. The court below had issued warrant for delivery of the possession inspite of the fact of the report of the Commissioner about existence of constructions of 3rd parties over the property viz., sheds, compound walls, etc. 12. Armed with the said order of delivery of possession, Respondent Nos 1 to 3, came to the property on 23-12-2009, at about 4.30 PM, and started demolishing the property. On questioning about the said action, Respondent Nos. 1 to 3/Defendant Nos.45 to 47 in the suit who are petitioners in EA 913/2008, informed first appellant about the impugned suit, passing of a preliminary decree, and also a final decree based upon the report of the Commissioner. Immediately, the first appellant had applied for certified copies of the proceedings and is preferring the present first appeal, questioning the final decree in IA 9132008, as well as preliminary decree in OS 12/2005, in view of it having been merged with the Final decree. In view of appellants not being parties to the court below, and since their valuable rights in the immovable property are involved, appellants beg to prefer the present first appeal with leave of the Hon’ble Court, on the following among other.” From the above and also from the submissions made across the Bar by both the senior counsel Sri E. Manohar appearing on behalf of the appellants and Sri D. Prakash Reddy appearing on behalf of the respondents, the point which arises for consideration, is as to whether, on the facts and circumstances, the judgments and decrees of the Court below are sustainable. A preliminary objection was taken by the learned senior counsel Sri D. Prakash Reddy appearing on behalf of the respondents as to the maintainability of the appeal that since only one appeal is filed against the preliminary decree in O.S.No.12 of 2005, dated 28.01.2008 and also the final decree dated 30.04.2009 and as such the same being not maintainable. However, the learned senior counsel appearing on behalf of the appellants have filed a memo to that effect that preliminary decree made in I.A.No.913 of 2008 in O.S.No.12 of 2005 is dated 28.01.2008. During the course of submissions in support, they sought to place reliance on the principles laid down in Taleb Ali v Abdul Aziz[1], Lakshmi v Marudevi[2], Jhari Lal Gope v Ramdhikari Missir[3], and Jakkampati Rangaiah v Kunala Peddireddi [4]. Having considered the above preliminary objections, it is to be seen that since the appellants are third parties and have not been made parties at any stage of the proceedings in the present suit, where the preliminary decree was passed as long back as in 2008 and subsequently a final decree on 30.04.2009, it cannot be said that nor there is any evidence or material produced on behalf of the respondents to show that the appellants had any knowledge which can be set to constitute a starting point for the purpose of running a limitation of law. It cannot be said that the appellants had knowledge and the present appeal is barred by the limitation, be it against the preliminary decree dated 28.1.2008 or even the final decree 30.04.2009. Be that as it may. No doubt the appellants have filed a memo along with the grounds of appeal and the said appeal is being filed against both the decrees. Having regard to the restriction of the appeal only against preliminary decree dated 28.1.2008, it can be safely said that this appeal is only against the preliminary decree. For that, even in view of the glaring principles laid down, it is always open for the parties to file appeal against the preliminary decree irrespective of the fact that subsequently a final decree is passed. Hence, this appeal is held to be filed only against the preliminary decree. Coming back to the facts of the case, which are quite unusual and staring at the parties, in spite of the fact that the properties are one and the same, but however all the persons, who are parties either to O.S.No.1886 of 1989 or to O.S.No.1337 of 1987, are admittedly not impleaded nor made parties to the present suit in O.S.No.12 of 2005 wherein the relief of partition is sought. There is absolutely no application coming forth on behalf of the respondents herein nor any submission is made by the learned senior counsel for the respondents as to how these parties could have been avoided to be impleaded in the present proceedings, nor there is any submission made justifying as to how the claim could be resisted or the relief can be claimed by giving a total go-bye to the proceedings in either of the above suits viz., O.S.No.1886 of 1989 and O.S.No.1337 of 1987. On a bare look at the way in which the proceedings were conducted, prima facie, we are of the view that the proceedings have been conducted without contest. Mere obtaining decrees one for preliminary and another for final would amply show that it is in regard to the contested proceedings but only to make believe proceedings to find the real purpose to reconnect or concern with the properties and behind their back. Therefore, it cannot be said that these proceedings are, in any way, genuine or valid and would bind the appellants herein or would effect the rights as claimed by the appellants. It is to be noticed from the above that the first appellant-society claims as a purchaser of the property to an extent of Acs.4.00 of land under registered sale deeds bearing Nos.294/90, 1316/91, 1317/91, 1377/91 and 1378/91 on different dates and they are put in possession and they have subsequently laid out plots as well, of which plot No.43 was allotted to the other appellants. In the circumstances, the substantive rights, as vested in the appellant No.1 initially and subsequently in the allottees, could not have been possibly interdicting in any manner and whatsoever nature especially by nature of the proceedings as in the present case. Thus, all those decrees obtained by the respondents in the present suit are neither binding or would no way effect such vested rights. It is also seen that in the absence of proper proceedings to set at naught the proceedings in OS.No.1886 of 1989 or even that of the other proceedings especially the third party rights as arisen out of the aforesaid registered sale deeds in favour of the appellants herein, it cannot be said that the present suit, as has been filed by the respondents herein and framed and obtained the decree therein, is wholly misconceived and the same is not maintainable. It is also brought to notice of this Court that even the report of the Commissioner in IA.No.913 of 2008 in OS.No.12 of 2005 would amply show that third parties had opposed and there is no explanation nor any of the aspects of third parties has been taken into consideration. Further, having regard to such purchases by the appellants herein from the daughters of Kalika Prasad, it cannot be said that they are not necessary and appropriate parties. If at all the respondents have to seek any relief to which they would be entitled to under the law, it should be certainly not behind their back and without impleading them. Even otherwise in view of the concluding proceedings and decrees arising out of the suit in O.S.No.1886 of 1989, it cannot be said once again that the plaintiffs could have laid a fresh claim for any right, title or interest or whatsoever nature once again in contradiction to the rights, which have been recognised in the said proceedings. It is quite apparent from the very material or even the present proceeding that the parties, who are claiming only as legal representatives, could not have been impleaded or sought for any relief on such claims which are quite contradictory to the earlier partition decree. It is now well established that the legal representatives are not only bound by the decision taken earlier but also are bound by the decree in O.S.No.1886 of 1989. A reading of the plaint in O.S.No.1886 of 1989 would runs in the teeth thereof without a proper relief being made to set aside the earlier decrees which they are fully aware, and no fresh decree as sought could have been sought for. Even though an attempt was made on behalf of the respondents herein about giving up their certain rights through an affidavit, dated 18.08.2006 and having put in possession on 23.12.2009, however the same has no legs to stand nor could be accepted in view of the earlier proceedings and the decrees as passed therein. Curiously even the plaint is totally silent about the decrees and the rights recognised in O.S.No.1886 of 1989 and nothing is mentioned nor any reason is shown as to how those proceedings could be got over. It is also to be seen that even in the proceedings in O.S.No.1337 of 1987, there is a categorical reference to the proceedings in O.S.No.1886 of 1989 and therefore, the respondent could not plead any ignorance of the suit in O.S.No.1886 of 1989. Another submission was made by the learned counsel appearing for the other respondent is to the effect that there has been no proper opportunity given at the time of granting leave by the appellants. Further, the fact remains that it is only the appellant who could bring forth a staring series and admitted fact on the present proceedings which would only say that there is clear consideration of the case and obtained decree not only behind the back of the appellants. In the circumstances, we do not find any justification in the claims as prayed for in the present suit and including the alleged recognition of any of their shares and preliminary decree as passed. For the aforesaid reasons, we hold that the preliminary decree passed in OS.No.12 of 2005 is totally misconceived and illegal and therefore, the same is liable to be set aside and the appeal has to be allowed. Accordingly, the appeal is allowed and the judgment and decree in O.S.No.12 of 2005 dated 30-04-2009 on the file of the I Additional Chief Judge, City Civil Court, Secunderabad is set aside. No order as to costs. _________________ (B.PRAKASH RAO, J) ___________________ (P. DURGA PRASAD, J) 30th April, 2011 SP [1] AIR 1929 Calcutta 689 Full Bench [2] AIR 1915 Madras 197 [3] AIR 1940 Patna 668 [4] (S) AIR 1957 ANDH. PRA. 330