PANCHANGULA VENKATASUBBAMMA Vs. KAMBHAMPATI VENKATAPPAIAH SASTRI AND ANOTHER

JUDGEMENT

(1.) The main question that falls to be considered in this revision petition, which, is referred to the Bench by our learned brother Chandrasekhara Sastry, J. is as to whether the compromise decree made in O.S. 58/46 on the file of the Subordinate Judge, Bapatla, on 11-3-48 is a preliminary decree or final decree for partition.

(2.) The brief facts of the case are as follows:- The 1st respondent Venkatappaiah Sastry, filed O. Sec. 58/46 in the Court of the Subordinate Judge, Bapatla for recovery of possession of certain items of property including lands. The petitioner and the 2nd respondent herein who are the paternal aunts of the plaintiff were impleaded as defendants 9 and 10 as they happened to be in possession of items 2 and 3 of the plaint schedule. The suit ultimately ended in a compromise and decree in terms of that compromise followed. The provisions of that decree which are material for the purpose of this petition are as under:-

(3.) The plaintiff (1st respondent) filed I. A. 611/60, out of which this revision arose, on 10-3-60 i.e., just two days before the expiry of the 12 years period from the date on which the compromise decree was passed praying for a final decree. Besides setting out the terms of the compromise decree, it was alleged in this petition by the plaintiff that at a partition which took place between him and defendants 9 and 10 even in the year 1948, he became entitled to the plot described in schedule filed with his application while defendants 9 and 10 got the property described in schedule 2, that the parties have been in possession and enjoyment of their respective shares ever since that partition and that he has also leased out the lands that were allotted to his share and described in schedule 1 subsequent to the aforesaid partition but that he was obliged to file this petition, seeking a final decree as he was advised that it is necessary to do so. The plaintiff alternatively requested the court to appoint a commissioner to divide items 2 and 3 of the schedule appended to the Plaint in his suit into two equal shares-and fob allotment of one such share to him if for any reason, it should be considered that the partition has to be effected through court. This petition was opposed by defendants 9 and 10 who, as already stated, are the Petitioner and the 2nd respondent herein, on the ground that the compromise decree passed in O.S. 58/46 on 11-3-48 was in itself a final decree and that the plaintiff is therefore not entitled to ask for a final decree once again that the petition, as framed is not maintainable in law and that it is also barred by limitation. The learned Subordinate Judge agreed /with the plaintiff that the compromise decree dated 11-3-48 was in substance, only a preliminary decree and that no question of limitation would arise as a suit filed for partition should be deemed to be pending till a final decree is passed; and accordingly appointed an advocate as commissioner to divide items 2 and 3 of the plaint schedule into two equal shares. Aggrieved by this order, defendant No. 10 has preferred this revision.