THE HON'BLE SRI JUSTICE A. RAJASHEKER REDDY
AND
THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER
I.A.No.1 OF 2021
IN/AND
APPEAL SUIT No.130 OF 2019
COMMON ORDER: (Per Hon'ble Dr.SA,J)
I.A.No.1 of 2021 is filed by the petitioners/appellant Nos.2
to 4/plaintiff Nos.2, 3 and 5 seeking permission to withdraw the
appeal with a liberty to file fresh Suit for partition in view of the
death of appellant No.1/plaintiff No.1.
2. Heard the learned counsel for both sides and perused the
record.
3. The learned counsel for the petitioners/appellant Nos.2 to
4/plaintiff Nos.2, 3 and 5 would submit that the
appellants/plaintiff Nos.1, 2, 3 and 5 preferred this appeal
aggrieved by the judgment dated 17.09.2018 passed in
O.S.No.19 of 2014 by the learned VI Additional District Judge,
Khammam, wherein the Court below while dismissing the subject
suit observed that the suit schedule property is not liable for
partition during the life time of appellant No.1/Plaintiff No.1 i.e,
Repaka Bhadramma. It is further submitted that the appellant
No.1/plaintiff No.1 died during pendency of this appeal and
therefore, the petitioners/appellant Nos.2 to 4/plaintiff Nos.2, 3
and 5 seeks permission of the Court to withdraw the appeal with
a liberty to file fresh Suit for partition.
2 ARR,J & Dr.SA,J
A.S.No.130 of 2019
4. On the other hand, the learned counsel for the
respondents/defendant Nos.1 and 2 and plaintiff No.4 opposed
the subject Interlocutory Application and prayed to dismiss the same.
5. As seen from the material placed on record, the appellants/plaintiff Nos.1, 2, 3 and 5 and respondent No.3/plaintiff No.4 filed a suit in O.S.No.19 of 2014 before the VI Additional District Judge, Khammam, seeking partition and separate possession of suit schedule property. The said suit was dismissed by the Court below vide judgment dated 17.09.2018 observing that the suit schedule property is not liable for partition during the lifetime of appellant No.1/Plaintiff No.1 i.e, Repaka Bhadramma. Aggrieved by the same, the appellants/plaintiff Nos.1,2, 3 and 5 preferred this appeal suit. During the pendency of this appeal, the appellant No.1/plaintiff No.1 died and therefore, the petitioners/appellant Nos.2 to 4/Plaintiff Nos.2, 3 and 5 filed I.A.No.1 of 2021 seeking permission of this Court to withdraw the appeal with a liberty to file fresh Suit for partition. The copy of death certificate dated 27.08.2020 filed before this Court, substantiates the death of appellant No.1/ plaintiff No.1.
6. In view of the facts and circumstances of the case, the request of the petitioners/appellant Nos.2 to 4/plaintiff Nos.2, 3 and 5 can be acceded to.
3 ARR,J & Dr.SA,J
A.S.No.130 of 2019
7. Accordingly, I.A.No.1 of 2021 is allowed. Consequently,
the A.S.No.130 of 2019 is dismissed as withdrawn granting liberty to the appellant Nos.2 to 4/plaintiff Nos.2, 3 and 5 to work out the remedies, in accordance with law. There shall be no order as to costs.
Miscellaneous Petitions, if any, pending in this appeal shall stand closed.
_______________________ A. RAJASHEKER REDDY, J ______________________ Dr. SHAMEEM AKTHER, J April 01st, 2021.
MD