IN THE HIGH COURT FOR THE STATE OF TELANGANA, HYDERABAD
****
C.R.P.No.573 of 2021
Between:
Smt.Anasuya
Petitioner
VERSUS
Gurru Swaroopa @ Rupa & others
Respondents
JUDGMENT PRONOUNCED ON: 29.6.2021
THE HON'BLE SRI JUSTICE T.AMARNATH GOUD
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments? : Yes
2. Whether the copies of judgment may be
Marked to Law Reporters/Journals? : Yes
3. Whether His Lordship wishes to
see the fair copy of the Judgment? : No
_________________________
T.AMARNATH GOUD, J
* THE HON'BLE SRI JUSTICE T. AMRNATH GOUD
+ CIVIL REVISION PETITION No.573 OF 2021
% 29.6.2021
# Smt.Anasuya
Petitioner
VERSUS
$ Gurru Swaroopa @ Roopa & others
Respondents
! Counsel for Petitioner Sri K.Ramakrishna
^ Counsel for the respondents Sri N.Manohar
<GIST:
> HEAD NOTE:
? Cases referred
THE HON'BLE SRI JUSTICE T.AMARNATH GOUD
CIVIL REVISION PETITION No.573 of 2021
ORDER:
1 This Civil Revision Petition under Section 115 of CPC, is filed assailing the order dated 04.3.2021 passed in I.A.No.664 of 2019 in O.S.No.27 of 2004 on the file of the Court of the Senior Civil Judge, Medak wherein and whereby the petition filed by the first respondent herein to appoint an Advocate Commissioner to divide the suit schedule A and B property by metes and bounds in terms of the preliminary decree dated 06.10.2004 for allotting half share to her and half share to the plaintiff in suit A schedule property and half share to the plaintiff and remaining half share to her and other respondents in the suit schedule B property was allowed. 2 For the sake of convenience, parties to this Civil Revision Petition will hereinafter be referred to as they were arrayed in the trial court.
3 Petitioner is assignee of Decree and legal heir of defendant No.2 in the suit. The first respondent / plaintiff filed a suit O.S No.27 of 2004 against the second respondent / defendant No.1 and respondent No.3/defendant No.2 for partition and separate possession and for allotment of equal share to the respondent No.1/plaintiff and respondent Nos.3/defendant No.2 in the suit schedule A and B properties. In the said suit, a preliminary decree was passed on 06.10.2004 allotting half share to respondent No.1/plaintiff and half share to respondent No.3/defendant No.2. The respondent No.3/defendant No.2 died leaving behind her, respondent Nos.1, 4 and 5 as his legal heirs. So by virtue of the preliminary decree her father became the absolute owner and possessor of half of the suit schedule A and B properties. She further submitted that her father, due to love and affection towards her as she had looked after his welfare, gifted his half share of the suit schedule A property through registered gift deed vide document No.2347 of 2008 dated 31.3.2008 and transferred his rights and interest accrued under the said preliminary decree to her. Therefore, it is necessary to divide the suit schedule properties into half share by metes and bounds by appointing an advocate commissioner to enable the Court to allot half share to them and half share to the plaintiff in the suit schedule properties. 4 The respondent No.1 / plaintiff filed counter contending that the preliminary decree became inexecutable due to lapse of 12 years statutory time to get it transformed into a final decree by actual division of the property in terms of the preliminary decree. Moreover, the petitioner has not filed a petition to amend the preliminary decree in the array of cause title as they are the legal heirs of the respondent No.3/defendant No.2. It is further contended that the respondent No.4 filed a suit for partition and separate possession and that all the suit schedule properties mentioned in the preliminary decree including the share of the respondent No.3/defendant No.2 are the subject properties of the said suit and that the petitioner is contesting the said suit and filed her written statement. The first respondent denied the execution of gift deed by his father in favour of the petitioner herein. The petitioner filed the present petition only to prolong and harass this respondent/plaintiff and prayed to dismiss the petition.
5 Respondent No.4 filed her counter stating that she filed O.S.No.22 of 2017 seeking partition and separate possession of all the properties with respect to the agricultural lands and a house and that the said suit covers all the properties covered in the earlier suit and that the petitioner herein and the fourth and fifth respondents are not parties to the suit O.S.No.27 of 2004. Hence prayed to dismiss the petition.
6 Respondent No.5 filed her counter stating that the preliminary decree dated 06.10.2004 became inexecutable due to lapse of 12 years statutory time to get it transformed into a final decree by actual division of the property in terms of preliminary decree. She further submitted that due to amendment to the Hindu Succession Act in the year 2004, which came into effect from 09.9.2005, the shares of the parties for which they were entitled to, changed by operation of law, as such the petition seeking partition in terms of the preliminary decree dated 06.10.2004 cannot be maintained. She further submitted that by virtue of Full Bench decision of the Hon'ble apex Court in Phoolchand V. Gopal Lal {AIR 1967 SC 1470} that in case of variation of shares by operation of law, it is necessary to pass one more preliminary decree in terms of the changed law. She further submitted that the petitioner is claiming to be an assignee of the decree holder. Before filing the application for passing of final decree, the petitioner ought to have filed a proper application to recognize the assignment. Therefore, the present petition cannot be entertained. She further submitted that the fourth respondent filed a suit O.S.No.22 of 2017 in which the petitioner is arrayed as defendant No.3 and that the petitioner has already filed her written statement. The present petition is filed only to avoid the possible outcome against the petitioner in the said suit. Hence prayed to dismiss the petition.
7 After affording reasonable opportunity to all the parties, the trial Court allowed the petition holding that when once the court has passed the preliminary decree and given half share to Manik Reddy i.e. father of the parties to the litigation, the property was divided and the share of the said Manik Reddy in the property becomes self acquired property and of Manik Reddy and he gifted the property to his daughter i.e. petitioner herein out of love and affection and that as per the gift deed the petitioner is entitled for the share of her father in respect of the plaint A schedule property and the first respondent is equally entitled to his share and the respondent Nos.1, 4 and 5 along with the petitioner are entitled for equal shares in the property of Manik Reddy in item B of the suit schedule property. The trial Court held that the respondent Nos.1, 4 and 5 have not challenged the correctness of the gift deed alleged to have been executed by Manik Reddy in favour of the petitioner. The trial Court further held that in view of Section 97 CPC since the respondents have not challenged the preliminary decree, they are precluded from disputing its correctness in any appeal which may be preferred from the final decree. Accordingly the trial Court allowed the I.A and appointed an advocate commissioner to divide the suit schedule property by metes and bounds. As stated supra, aggrieved by the said order, the fifth respondent before the trial Court filed the present Civil Revision Petition. 8 During the course of arguments, the learned counsel for the first respondent submitted that challenging the very same order, which is impugned in the present Civil Revision Petition, the first respondent/plaintiff filed Civil Revision Petition No.519 of 2021 and the same was dismissed by order dated 08.4.2021 by this Hon'ble Court.
9 Having regard to the said submission, this Court perused the order passed in the above Civil Revision Petition. It is pertinent to notice from the above order that the learned counsel for the petitioner in the present case submitted that in terms of the order dated 04.3.2021, an Advocate Commissioner has already been appointed and he, after executing the warrant, filed his report before the trial Court on 31.3.2021. The learned Judge dismissed the Civil Revision Petition No.519 of 2021 observing that since the Advocate Commissioner has already filed his report pursuant to the impugned order dated 04.3.2021, nothing survives for adjudication in the revision.
10 In that view of the matter, this Court is of the considered view that once an order adjudicating the maintainability of the Civil Revision Petition was passed negating the contention of the petitioner in other revision petition, again challenging the very same order on the very same grounds by some other party to the very same proceedings is also not maintainable. Since an Advocate Commissioner has already been appointed and a report to that effect being filed, question of entertaining another revision petition by some other party to the very same proceedings does not arise. Each person cannot initiate separate proceedings seeking same relief for same cause of action. Once a decision is made on an issue that would bind all other parties of the same proceedings on that particular issue. Moreover, the petitioner in this revision petition who is 5th respondent in the I.A. has not challenged the preliminary decree passed by the trial Court on 06.10.2004. Further, as rightly observed by the trial Court, in view of Section 97 CPC since the respondents have not challenged the preliminary decree, they are precluded from disputing its correctness in any appeal which may be preferred from the final decree. However, if the fifth respondent i.e. petitioner herein is aggrieved by the report of the Advocate Commissioner, she is at liberty to file her objections to the said report before the trial Court in accordance with law.
11 With the above observations, this Civil Revision Petition is dismissed confirming the order dated 04.3.2021 passed in I.A.No.664 of 2019 in O.S.No.27 of 2004 on the file of the Court of the Senior Civil Judge, Medak. No order as to costs. Miscellaneous petitions, if any, pending in this Civil Revision Petition shall also stand dismissed.
__________________________ T. AMARNATH GOUD, J.
Date: 29.6.2021 L.R.Copy be marked.
B/o Kvsn