THE HON'BLE SRI JUSTICE T. VINOD KUMAR
AND
THE HON'BLE SMT. JUSTICE P.SREE SUDHA
C.M.A.No.60 of 2023
JUDGMENT: (per Hon'ble Smt. Justice P.Sree Sudha)
This Civil Miscellaneous Appeal is filed, under Order 43 Rule 1
read with Section 151 C.P.C., against the order passed by the learned
XXV-Additional Chief Judge, City Civil Court, Hyderabad, in I.A.No.448
of 2020 in O.S.No.73 of 2020 dated 09.01.2023.
2. Brief facts of the case are as under:
Respondent No.1/plaintiff herein filed the aforesaid O.S.No.73
of 2020 against the appellants/defendants herein for partition and separate possession of the suit schedule properties. During the pendency of the proceedings, the 1st respondent/plaintiff filed the present I.A.No.448 of 2020, under Order 40 Rule 1 C.P.C., seeking to appoint a Receiver to collect the rents of Rs.3,50,000/- from suit schedule 'A' property till disposal of the main suit. The said application was opposed by appellants/defendants by filing counter, inter alia, contending that schedule 'A, C and D' properties were not purchased by their father late Chinna Ramulu and it is the 1st appellant who acquired those properties.
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3. On considering the entire material available on record, the trial Court, by order dated 09.01.2023, allowed the said application directing the 2nd appellant herein to collect rents from the tenants of petition 'A' schedule property every month and to deposit the same to the credit of the suit once in every three months till disposal of the suit.
4. Aggrieved by the aforesaid order dated 09.01.2023, the present C.M.A. has been filed by the appellants/defendants contending that the trial Court has lost sight of the fact that admittedly schedule 'A, C and D' properties stand in the name of the 1st appellant/1st defendant. It is further contended that the trial Court failed to consider the clear legal position placed before it that a presumption of this nature cannot be drawn in case of a property standing in the name of a female member of a joint family unless proved by conclusive evidence in that respect, which the 1st respondent/plaintiff has failed to do so. Therefore, requested this Court to set aside the impugned order as it is erroneous and contrary to the facts and circumstances of the case.
5. Heard learned Counsel appearing on either side and perused the entire material available on record.
6. Admittedly, the 1st respondent/plaintiff and appellants 2 to 4 herein are children of appellant No.1 i.e., A.Tulasamma and late Chinna Ramulu. 3 The 1st respondent/plaintiff herein has filed the aforesaid Suit being O.S.No.73 of 2020 against the appellants/defendants herein for partition and separate possession of plaint 'A to G' schedule properties. It is represented that the parties are getting rents to a tune of Rs.3,50,000/- per month from petition 'A' schedule property. Since the appellants/defendants were in physical possession of the property and as the 1st respondent/plaintiff and appellants/defendants are equally entitled for the same, the trial Court, instead of appointing a Receiver, directed appellant No.2/defendant No.2 to collect rents from the tenants of petition 'A' schedule property and to deposit the same to the credit of the suit once in every three months till disposal of the suit.
7. Having regard to the aforesaid discussion, this Court, without going into the merits of the case, finds that it is just and reasonable to modify the impugned order of the trial Court dated 09.01.2023 as under:
"Appellant No.2/Defendant No.2 is directed to collect rents of Rs.3,50,000/- from the tenants in respect of petition 'A' schedule property every month and to deposit only a sum of Rs.70,000/-, out of Rs.3,50,000/-, being 1/5th share of the 1st respondent/plaintiff, to the credit of the suit once in every three months from the date of this order till disposal of the main suit. Appellants 1 to 4/defendants are entitled for their share of 1/5th each from out of Rs.3,50,000/- and they are permitted to receive the said amount every month."
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8. In the result, the C.M.A is disposed of and the impugned order dated 09.01.2023 passed by the trial Court in I.A.No.448 of 2020 in O.S.No.73 of 2020 is modified to the extent indicated above.
9. Pending miscellaneous petitions, if any, shall stand closed in the light of this final order. No order as to costs.
__________________ T. VINOD KUMAR, J ________________ P.SREE SUDHA, J 06.04.2023 Gsn.
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