HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO
AND
HONOURABLE SRI JUSTICE T. VINOD KUMAR
CIVIL MISCELLANEOUS APPEAL NO.13 OF 2021
JUDGMENT:
(Per Sri Justice T. Vinod Kumar) This Appeal is preferred assailing the order dt.08.11.2019 in I.A.No.709 of 2016 in O.S.No.1238 of 2016 on the file of VI Additional District and Sessions Judge (FTC), Ranga Reddy District at Kukatpally.
2. The appellants herein are the plaintiffs in the suit.
3. The appellantsherein have filed the suit against the respondents for partition of Suit scheduled properties A,B and C situated at Raidurg Navkhalsa Village of Serilingampally Mandal in Ranga Reddy District.
4. As per the suit pleadings, it is the case of the appellantsthat Late K. Sayanna, who is the father of the 1st appellant was the owner and possessor of the suit schedule properties. That the K Sayanna, died on 17.11.1998, leaving behind his wife Smt. Kistamma and two sons viz., K. Yadaiah and the 1st appellant K. Ravinder, as his only legal heirs. The mother of the 1stappellant had also died on 19.08.2002 and the brother K. Yadaiah also died in a motor vehicle accident on 13.02.2012 leaving behind the respondents 1 to 6 herein being his wife and children respectively, as his legal heirs.
5. It is claimed that on the respondents 1 to 6 approaching the appellants for affecting the partition of the properties of late K Sayanna, it was mutually agreed that the available land admeasuring 2660 sq.yds, 2 in survey no.19 of RaidurgNavkhalsa, viz., suit schedule property A, would be divided between the 1st appellant andrespondent 1 to 6 forming as one block and accordingly, the 1st appellant got 50% of the A Scheduled land and Respondent no.1 to 6 got the remaining 50% of the land collectively. Based on the above division, a partition deed was executed on 11th December, 2014 in respect of suit schedule property 'A' and the same was registered in the office of Joint Sub- Registrar-1, Ranga Reddy district, as Doc.No. 14743 of 2014.
6. Insofar as suit schedule property 'B' being house bearing no. 5- 34/B, admeasuring 150 Sq.yds, situated at RaidurgNavkhalsa Village, Serilingampally village, Ranga Reddy District, the 1st appellant is shown to have 50 Sq.yards and a partition deed dt. 23rdJanuary, 2016 was executed and registered as document number 443 of 2016 in the office of the Joint Sub- Registrar-2, Shamshabad. No details as to whose share the suit schedule property C has fallen is mentioned in the plaint.
7. The suit is filed by appellants herein claiming that when the 1st appellant tried to fence the land fallen to his share, forming part of suit schedule property A under the registered partition deed, the same was not available, while the land that has fallen to the share of respondents 1 to 6 was available. Thus, it is claimed that the respondents 1 to 6 got the partition deed executed by cheating the 1st appellant, knowing very well that the land which is shown to have fallen to the share of 1st appellant was not available. It is further claimed that when confronted, the respondent 1to 6 pleaded guilty and assured that they will share 50% of 3 the land physically available with the 1st appellant. However, as the respondents 1 to 6 have failed to keep up the assurance given, and on the other hand are effecting sale of part of the land fallen to their share without paying 50% of the sale consideration out of the land being sold to the 1st appellant, and also not coming forward for executing the fresh partition deed in respect of all the properties in respect of which partition was effected earlier, the suit was filed.
8. Along with the suit, the appellant also filed I.A.No. 708 and 709 of 2016, under Order XXXIX Rules 1 and 2 CPC r/w Sec.151 CPC. I.A. No. 708 of 2016 for restraining the respondent no. 1 to 9 from alienating or in any way creating any sort of third party rights or interest over the suit schedule properties. I.A. No. 709 of 2016 was filed seeking to restrain respondentsno.1to 9 from dispossessing the appellant from the suit schedule properties. The appellant, in the said Applications, reiterated the contents of the plaint.
9. The respondents resisted the above applications by filing counter.
10. By order dated 08.11.2019, the trial court dismissed both the I.A. No. 708 and 709 of 2016.
11. The trial court, after referring to the contentions of both the parties, held that, having partitioned the suit Schedule properties A and B through registered documents with free will, volition and consent, and parties having got into the possession of their respective shares, the 4 appellants could not demonstrate 'primafacie'case and 'balance of convenience' in their favour and hardship caused to them.
12. The trial court held that due to grant of ad interim exparte injunction, the respondents no.1 to 6 could not deal with the properties fallen to their share as per the registered partition deed executed, by alienating part of the A schedule property for their needs of finance, performing marriages of their daughters. Thus, it is the respondents who have faced hardship.
13. Assailing the above order passed in I.A. No. 709 of 2016, this appeal is filed.
14. Heard Sri. B. Shashidhar, counsel for the appellants.
15. From the plaint filed before the trail court, it is clear that the suit schedule properties A, B and C were owned and possessed by Late Sri. K. Sayanna, the father of the 1st appellant, who died intestate, leaving behind his wife and two sons. While the 1st appellant is one son, the respondent 1 to 6 are the wife and children of the other son viz., the daughter-in-law and grand children of late Sri. K. Sayanna. It is also an admitted fact that the above properties have been partitioned among the 1st appellant and the respondent no. 1 to 6 only after the death of the other two members of the family namely, the mother of the 1st appellant and the other brother, who were the legal heirs to succeed to the estate of Late Sri. K. Sayanna.
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16. The factum of partition of properties in between the 1st appellant and the respondent no.1 to 6 by metes and bounds has been effected by executing a partition deed and getting the same duly registered. The 1st appellant having executed the document, getting the same registered and acting there under, could not have asked for partition of the suit schedule properties once again, during the subsistence of the registered partition deed, without seeking for cancellation of the same. In order to seek cancellation of the of an validly executed documents, the appellant is required to establish that the same was got executed by playing fraud on him. Without going through above process of establishing fraud and getting the earlier registered document cancelled, the 1st appellant cannot seek the relief of fresh partition of the properties, which have already been partitioned. Thus, we find that the trial court's order does not suffer from any infirmity.
17. So, the appeal is accordingly, dismissed at admission stage.
18. Pending miscellaneous petitions, if any, in this Appeal shall also stand dismissed. No costs.
____________________________ M.S.RAMACHANDRA RAO, J _______________________ T. VINOD KUMAR, J Date: -03-2021 6 HON'BLE SRI JUSTICE M.S. RAMACHANDRA RAO AND HON'BLE SRI JUSTICE T. VINOD KUMAR CMA No. 13 OF 2021 (Order of the Division bench delivered by Hon'ble Sri Justice T. Vinod Kumar) .03.2021 MRKR 7