FATIMUNISSA BEGUM SAHEBA Vs. SHAIK ABU BAKER SAHEB

JUDGEMENT

(1.) This is an appeal by the defendants under clause 15 of the Letters Patent against the judgment of Srinivasachari J. in A. S. No. 362/1956 reversing that of the Subordinate Judge, Nellore, and remitting the case to the trial court for fresh disposal.

(2.) Briefly stated, the facts giving rise to this appeal are these. The 1st respondent brought a suit for partition and separate possession of his 1/2 share in an item of property described in the schedule annexed to the plaint and for past and future mesne profits under the following circumstances. The 1st defendant was indebted to him in a sum of Rs. 1313-7-0 under a promissory note dated 21-1-1949. He obtained a decree on the foot of this promissory note in the District Munsiffs Court, Nellore and, in execution of that decree, he brought to sale 1/2 share of the Judgment debtor in the plaint schedule property and himself purchased the same on 3-3-1952, we understand, subject to the mortgage created in his favour on 2-4-1949 for a sum of Rs. 4,000.00. This was confirmed on 5-4-1953. Having obtained a sale certificate, he applied for delivery of possession of that 1/2 share. Defendants 6 to 8, who purchased the whole of that property from the 5th defendant, obstructed delivery of possession, whereupon the plaintiff filed I.A. No. 334 of 1952 for removal of obstruction. The obstruction was removed and the plaintiff took possession of the property through court on 2-5-1953. The unsuccessful defendants carried the matter in revision to the High Court of Madras (C. R. P. No. 804 of 1953) challenging that order. The revision petition was accepted by the High Court. In the course of the judgment, it was observed by Krishnaswami Nayudu J., who disposed of the Civil Revision petition, that the proper course for the purchaser of an undivided share was to institute a suit for partition; but in the circumstances of the case where there was already a preliminary decree passed in a suit brought for partition in O.S. No. 120 of 1947 on the file of the Sub Court, Nellore, it was open to the plaintiff to apply to be made a party in the final decree proceedings and work out his rights thereunder. It may be mentioned here that O.S. No. 120 of 1947 referred to by Krishnaswami Nayudu J. was brought by the present 1st defendant for partition and separate possession of his share in the Court of the Subordinate Judge, Nellore, in 1947. A preliminary decree was made declaring his 1/2 share in the plaint schedule property. This was affirmed on appeal by the High Court of Madras on 4-2-1953. Final decree proceedings were not started till the year 1954. The plaintiff, notwithstanding the observations of Krishnaswami Nayudu J., did not choose to get himself impleaded as one of the parties in the final decree proceedings. Instead, he laid the present action.

(3.) The suit was resisted by the defendants on various pleas but the one relevant for the purpose of this enquiry is that a suit for partial partition was not maintainable, the only remedy of such a purchaser at a Court auction being to ask for a general partition of the family properties. This defence prevailed with the Subordinate Judge with the result that he dismissed the suit in limine. The aggrieved plaintiff filed an appeal against the decree of the trial Court.