VENKATRAO ANANTDEO JOSHI AND ORS. versus SAU MALATHIBAI AND ORS

Citation: [2002] SUPP. 4 S.C.R. 211 · Decided: 05-11-2002 · Supreme Court of India · Bench: M.B. SHAH · Disposal: Appeal(s) allowed

Judgment (excerpt)

VENKATRAO ANANTDEO JOSHI AND ORS. 
A 
v. 
SAU MALATHIBAI AND ORS 
NOVEMBER I 5, 2002 
[M.B. SHAH AND D.M. DHARMADHIKARI, JJ.] 
B 
Hindu law: Joint Family property-Suit challenging the transfer of 
certain land and for partition of property-Decreed by the trial Court for 
2/Jrd share of suit property in favour of appellants-Appeals for mesne profit C 
and tenancy rights-Appellate Court referred back the matter to trial Court 
for determination of issue of tenancy right-Affirmed by High Court-On 
appeal, Held, since transfer of suit property by the father of Appellant No. I 
in favour of wife of appellant No. I was without any legal necessity, compromise 
decree between respondents and tenant on the suit property did no1 confer any 
title "against appellant-Order of trial Court restored. 
D 
Civil Procedure Code, 1908; Section 97: Suit/or partition-Raising of 
plea of tenancy at the time of passing of final decree--Validity of-Held, when 
no appeal was preferred by the aggrieved party against the preliminary decree, 
it is not open for him to raise contention in the appeal preferred from final 
decree. 
E 
Words and Phrases: 
'batai patra' and '/is pendens '-Meaning of 
Appellant No.I and his mother filed a suit for partition in the joint F 
family property against respondents (wife and father of appellant No.I), 
and challenged transfer of crrtain property by the father in favour of wife 
of appellant No.I. Trial Court passed preliminary decree holding that 
appellants were entitled to 2/3rd share in the entire property and that 
father of appellant No.I had no right to transfer the suit property. Appeal G 
filed by aggrieved father and wife of appellant No.I was dismissed by the 
appellate court, and the preliminary decree became final. In the 
meanwhile, respondent No.3 filed a suit for injunction against the father 
and wife of appellant No.I claiming tenancy rights over the suit property, 
though later on obtained a compromise decree in the matter. Trial Court 
21.I 
H 
212 
SUPREME COURT REPORTS [2002] suPr. 4 S.C.R. 
A partly allowed and decreed the pending suit holding that appellants were 
entitled to 2/3rd share in the suit property and respondent No.3 was not 
having tenancy rights over the suit property. Appellants preferred appeal 
for mesne profit and Respondent No.3 filed appeal claiming tenancy rights. 
Appellate Court directed trial Court to frame a specific issue on the point 
B of tenancy for determination by the competent Court. High Court affirmed 
it. Hence this appeal. 
It was contended for the appellants that since preliminary decree 
became final it was not open for the respondent to raise contention 
claiming tenancy right at the time of passing of final decree for partition; 
C and that since batai patra was executed pending the suit for partition, it 
would not confer any rights on respondent (tenant) on the principle of /is 
pendens. 
Allowing the appeal, the Court 
D 
HELD: 1.1. With regard to /is pendens, presuming that batai patra 
was at all executed by father of Appellant No.1, it was not open· to him to 
execute the same pending disposal of the suit filed by appellant No.1 for 
partition of the property. 1215-EJ 
1.2. Trial Court specifically arrived at the conclusion that father of 
E Appellant No.I was in possession of the suit property and transfer of part 
of suit property was without any legal and family necessity as alleged and, 
therefore, appellants were entitled to 2/3rd share in the suit property. In 
the Revenue Records also, there is no mutation in favour of Respondent 
No.3. Further, so called compromise decree in the Suit against father and 
F wife of Appellant No.I would not confer any title against the appellant. 
1215-G, H; 216-AJ 
2. In a suit for partition where preliminary decree is passed, at the 
time of passing of the final decree it was not open to the respondent to 
raise the contention that he was a tenant of the suit premises. Section 97 
G CPC specifically provides that where any party aggrieved by the 
preliminary decree does not appeal from the said decree, he is precluded 
from disputing its correctness in any appeal which may be preferred from 
the final decree. The judgment and order passed by the High Court 
confirming the judgment and order passed by the appellate Court is set 
aside. The order passed by the trial Court is restored. 1216-B-DJ 
H 
VENKA TRAO ANANTDEO JOSHI v. SAU MALATHIBAI [SHAH, J.] 213 
Moo/ Chand and Ors. v, Dy. Director, Consolid

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