Case Note & Summary
The present appeals arise out of a suit for partition (Civil Suit No. 4406 of 2005) filed by the appellant, Rajinder Kaur, for partition of a property jointly owned by her and the respondents (defendant Nos. 1 to 9). The suit property was originally owned by the parties in specific shares: the plaintiff had 25%, defendant No. 1 (Gurbhajan Kaur) had 12.5%, defendant No. 2 (Prabhasharan Singh Sandhu) had 12.5%, defendant No. 3 (Bhupinder Singh) had 1%, and others had varying shares. During the pendency of the suit, defendant No. 3 sold his share to S.C. Bhalla (impleaded as defendant No. 3(a)), and defendant Nos. 6 to 9 sold their shares to subsequent buyers (defendant Nos. 15 to 19). The plaintiff amended the plaint to include these subsequent events and sought partition by metes and bounds, or in the alternative, sale by auction and distribution of proceeds. The plaintiff also sought accounts of rent from defendant Nos. 3 to 9 and mesne profits from defendant No. 3 at the rate of ₹150 per square foot per month. The trial court (Civil Judge, Junior Division, U.T. Chandigarh) dismissed the suit, holding that it was barred by a compromise decree passed earlier in 1995 between the parties, which had settled the shares. The first appellate court reversed this decision and remanded the matter for passing a preliminary decree. However, the High Court of Punjab and Haryana, in the impugned judgment dated 05.04.2018 in RSA No. 6076 of 2015, reversed the first appellate court's order and restored the trial court's dismissal, holding that the suit was barred by the compromise decree and that the plaintiff had no right to partition after the subsequent sales. The Supreme Court, in the present appeal, considered the legal issues. The Court held that the right to partition is a continuing right and is not extinguished by a compromise decree unless a final decree has been executed. The compromise decree in 1995 merely recorded the shares and did not result in a final partition. The Court further held that subsequent purchasers are bound by the doctrine of lis pendens under Section 52 of the Transfer of Property Act, 1882, and their rights are subject to the outcome of the suit. The Court also held that the plaintiff's claim for mesne profits was maintainable. The Supreme Court allowed the appeals, set aside the High Court's judgment, and remanded the matter to the trial court to pass a fresh preliminary decree in accordance with law, considering the amended plaint and the changed shares. The Court directed the trial court to expedite the proceedings and complete the same within one year.
Headnote
A) Civil Procedure - Partition Suit - Preliminary Decree - Right to Partition - The right to seek partition is a continuing right and is not extinguished merely because a compromise decree was passed earlier, unless a final decree has been executed. The court held that the trial court erred in dismissing the suit as barred by compromise, as the compromise did not result in a final partition. (Paras 1-10) B) Transfer of Property Act - Lis Pendens - Section 52 - Subsequent Purchasers - Purchasers of shares during pendency of suit are bound by the doctrine of lis pendens. The court held that the subsequent purchasers (defendant Nos. 15-19) were properly impleaded and their rights would be subject to the outcome of the suit. (Paras 2-4) C) Civil Procedure - Mesne Profits - Claim for - Mesne profits can be claimed from the date of filing of the suit if the defendant is in wrongful possession. The court held that the plaintiff's claim for mesne profits against defendant No. 3 was maintainable and should be considered at the stage of final decree. (Paras 3, 10) D) Civil Procedure - Amendment of Pleadings - Preliminary Decree - The court has power to amend a preliminary decree to reflect changes in shares due to subsequent transfers. The court held that the trial court should have considered the amended plaint and passed a fresh preliminary decree. (Paras 3-5)
Issue of Consideration
Whether the High Court was justified in dismissing the second appeal and affirming the trial court's refusal to pass a preliminary decree for partition on the ground that the suit was barred by a compromise decree and that the plaintiff had no right to partition after subsequent sales.
Final Decision
The Supreme Court allowed the appeals, set aside the High Court's judgment, and remanded the matter to the trial court to pass a fresh preliminary decree in accordance with law, considering the amended plaint and the changed shares. The trial court was directed to expedite the proceedings and complete the same within one year.
Law Points
- Right to partition is a continuing right
- not barred by compromise unless final decree passed
- subsequent purchasers bound by lis pendens
- mesne profits can be claimed from date of filing suit
- preliminary decree can be amended to reflect changed shares.
