M/S. Multicon Builders vs Sumandevi
- SCC(2023) 16 SCC 688
- Neutral2023 INSC 982
Ratio decidendi
The rule this decision rests on
1. A preliminary decree in a partition suit determining the shares of parties and restraining defendants from alienating the property is not subject to interference by an appellate court when it is not challenged by any of the co-sharers or family members whose shares were determined in that decree, even if a non-family member who claims rights through a transferee seeks to challenge it. 2. When a preliminary decree in partition has been passed and is not challenged by the parties whose shares were determined, the court will not reopen the determination of shares at the appellate stage, but will instead direct the trial court to proceed to pass a final decree for partition by metes and bounds where all remaining aspects, including questions of possession and unauthorized constructions, may be considered. 3. The demolition of buildings already constructed on partitioned property should be deferred from the preliminary decree stage and considered instead at the stage of passing the final decree, with reference to whether the construction was authorized by the local authority.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
M/s MULTICON BUILDERS … Appellant(s)
VERSUS
SUMANDEVI AND OTHERS … Respondent(s)
JUDGMENT
RAJESH BINDAL, J.
1. The present appeals have been filed against the orders1
passed by the High Court2, vide which the order3 passed by the Trial
Court4 was set aside by the learned Single Judge.
1 Dated 10.09.2014 in FA NO.285/2012 & 24.04.2015 in MCA No.1222/2014 in FA No.295/2012 2 High Court of Bombay at Nagpur 3 Dated 27.02.2012 in Special Civil Suit No.1017 of 1994 4 th 4 Joint Civil Judge, Senior Division, Nagpur
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2. Briefly stating the facts of the case are that a civil suit was
filed by Sheela widow of Narendra Fiske for declaration, partition and
separate possession of the family property. In the aforesaid suit,
counter claim was filed by the defendant nos.1, 4 to 8. The preliminary
decree was passed by the Trial Court on 27.02.2012 determining the
shares of the plaintiff and defendant nos.1 to 8. The defendants were
restrained from alienating the suit property till partition takes place by
metes and bounds. The preliminary decree passed by the Trial Court
was not challenged by the plaintiff and defendant nos.1 to 8.
Defendant no.9-appellant herein was held to be having no right, title or
claim in the suit property. The defendants were directed to demolish
the construction raised in violation of the Municipal Laws. It is the
aforesaid preliminary decree which was challenged only by the
defendant no.9, namely, the present appellant before the High Court.
The appeal was dismissed, while modifying the operative part of the
order of the Trial Court only to the extent that the defendant nos.2 and
9 were directed to demolish the construction on the suit plot forthwith.
3. The issue was sought to be raised only by the appellant,
who is not a member of the family as such but is claiming his rights
through some of the co-sharers. The plea of the appellant was that the
respondent no.2 – Chandrashekhar Deshmukh had transferred his
2 share to him with the partition of the property amongst the plaintiff and
defendant nos.1 to 8, his rights are adversely affected as he has spent
huge amount in raising construction on the plot.
4. After hearing the learned counsel for the parties, in our
view, the order passed by the Trial Court passing the preliminary
decree in a partition suit as upheld by the High Court, does not deserve
interference by this Court as admittedly there is no challenge to the
same by any of the co-sharers (family members) of the property in
dispute with reference to their respective shares. The final decree is
yet to be passed. At that stage the property will be divided by metes
and bounds. The preliminary decree is being contested only by the
appellant who claimed that defendant no.2 – Chandrashekhar
Deshmukh had transferred his share to him. In some part of the
property two residential houses are located which are stated to be in
occupation of Chandrashekhar Deshmukh (Respondent No.2) and
Chandrakant Deshmukh (Respondent No.3) whereas on the other part
commercial complex has been constructed, in which the appellant is
claiming interest.
5. We have no doubt that in the process of passing final decree
for partition of the property by metes and bounds, the court below will
consider all aspects in terms of settled principles of law for that
3 purpose. In case any property in possession of any of the co-sharers
comes to his share it can very well be protected.
6. In our view, demolition of the already constructed buildings
may not be in the interest of any of the parties as the same can be
considered at the time of passing of final decree, with reference to the
construction, authorised by the local authority. We are not expressing
any opinion on the construction raised unauthorisedly.
7. For the aforesaid reasons, the impugned orders of the High
Court are modified to the extent mentioned above. The appeals are
accordingly disposed of. The Trial Court will proceed further for
passing the final decree. There shall be no order as to costs.
8. As the matter is quite old, the Trial Court is directed to
expedite the disposal of the case. We may clarify that we have not
expressed any opinion on the merits of the controversy.
…..……………..J (VIKRAM NATH)
…………………..J (RAJESH BINDAL)
New Delhi November 06, 2023.
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