Telangana High Court
P.Narsing Rao vs P.Raju on 5 March, 2024
THE HONOURABLE SMT. JUSTICE K. SUJANA
C.C.C.A.No.48 OF 2010
ORDER:
This appeal is filed by the appellant aggrieved by the judgment in O.S.No.333 of 2001, dated 03.11.2005 on the file of XIII Additional Senior Civil Judge (FTC), City Civil Court at Secunderabad.
2. O.S.No.333 of 2001 is filed by the plaintiff for partition of two equal shares and also for perpetual injunction restraining the defendants from interfering with the peaceful possession. The plaint is filed stating that the plaintiff is the elder brother of the 1st defendant and younger brother of the defendant Nos.2 and 3. The 4th defendant is elder sister of the plaintiff. Defendant Nos. 5 to 8 are the legal heirs of deceased sister Smt.J.Varalaxmi. Defendant No.9 is the father of the plaintiff. The mother of the plaintiff namely P.Satyamma acquired the property bearing No.6-4-41, plot no.142 measuring to an extent of 184 square yards situated at Bholakpur, Secunderabad by virtue of registered sale deed dated 20.8.1963 from Smt. Salemma Sarvesha and it is purchased out of her self-earnings and she executed a registered will on 2 SKS, J CCCA.48 of 2010 16.9.1994 bequeathing the suit property in favour of plaintiff and 1st defendant equally. The said Satyamma died on 18.8.1999 leaving behind her and defendant Nos.1 to 4 as legal heirs. It is also clearly mentioned in the will deed dated 16.9.1994 that the 2nd and 3rd defendants have no share in the suit property including her daughters namely Laxmi Bai (D4), J.Varalaxmi.
3. The father of the plaintiff i.e. 9th defendant has executed another will in favour of defendant Nos.2 to 4 in respect of plot No.6 covered by survey No.594 measuring to an extent of 398 square yards and plot Nos. 5 and 7 covered by survey No.594 measuring to an extent of 622 square yards situated at Ghatkesar, Ranga Reddy District. The said property was bequeathed in favour of defendant Nos.2 to 4 with absolute rights by virtue of will dated 16.09.1994. The 4th defendant died during the year 1995 leaving behind her husband and children as legal heirs, who are defendant Nos.5 to 8. The parents of the plaintiff and defendant Nos.1 to 4 have bequeathed their properties respectively among all the children without any disputes by virtue of the said two wills. Thus the plaintiff and the 1st defendant became the absolute owners of 3 SKS, J CCCA.48 of 2010 the suit property with equal rights by virtue of registered will dated 16.09.1994. The plaintiff and the 1st defendant performed funeral of their mother on 29.08.1999 and defendant Nos. 2 and 3 also attended the said funeral and disputed the will executed by the mother of the plaintiff and 1st defendant bequeathing the suit property in favour of plaintiff and 1st defendant.
4. The plaintiff filed a suit vide O.S.No.120 of 2000 on the file of XI Junior Civil Judge, City Civil Court, Secunderabad against defendant Nos.2 and 3 seeking relief of perpetual injunction restraining them from interfering with plaintiff's peaceful possession and enjoyment over the suit property and he also filed I.A.No.224 of 2000 in O.S.No.120 of 2000 seeking the relief of temporary injunction against defendant Nos. 2 and 3 which was dismissed on the ground that defendant Nos.2 and 3 are also legal heirs and they are in joint possession of the suit property. As such the plaintiff has withdrawn the suit with the leave of the Court to enable him to file suit for declaration of the share in the suit property in pursuance of the will dated 16.09.1994. The suit property is to be partitioned by metes and bounds in two equal shares among 4 SKS, J CCCA.48 of 2010 the plaintiff and the 1st defendant. The plaintiff and the 1st defendant are alone in the joint possession of the suit property. The defendants No.2 to 4 are in possession of plot Nos.4, 6 and 7 to an extent of 922 square yards covered by survey No.595 situated at Ghatkesar Village and Mandal, Ranga Reddy District by virtue of will dated 16.09.1994, which was executed by defendant No.9. As such defendant Nos.2 and 4 have no right to set up any claim in the suit property.
5. The 1st defendant filed written statement contending inter-alia that the suit is not maintainable either in law or on facts and he did not dispute the relationship between himself, plaintiff and other defendants. The 1st defendant admitted that deceased P.Satyamma is no other than his mother and mother of the plaintiff and he admitted that will deed is executed by her in his favour and he also admitted defendant Nos.2 to 9 have no manner of right to claim any share in the suit property and also admitted the execution of will by the 9th defendant in favour of defendant Nos.2 to 4 in respect of plot Nos.5, 6 and 7 measuring to an extent of 922 square yards covered by survey No.594 situated at Ghatkesar on 16.09.1994. He also admitted the performance of funerals by plaintiff and himself and also 5 SKS, J CCCA.48 of 2010 the earlier suit in O.S.No.120 of 2000 on the file of XI Junior Civil Judge, City Civil Court, Secunderabad was also not disputed. It is further submitted that himself and plaintiff are in joint possession of the suit property and defendant Nos.2 to 4 have no manner of right, title or interest over the same. Defendant Nos.2 to 9 were set exparte.
6. Basing on the pleadings the trial court framed two issues:
1. Whether the plaintiff is entitled for half share in the suit schedule property?
2. Whether the plaintiff is entitled for perpetual injunction of the suit schedule property?
7. To prove the same on behalf of plaintiff, PW1 was examined and Exs.A1 to A7 were marked. On behalf of D1, DW1 was examined. No documents were filed on behalf of defendants. Considering the evidence on record the suit is decreed allotting equal shares to the plaintiff and defendant No.1.
8. These appellants have filed I.A.No.15 of 2005 in O.S.No.333 of 2001 praying the Court to set aside the exparte 6 SKS, J CCCA.48 of 2010 order vide Order IX Rule 7 and the same is ordered by the trial Court allowing the petition on payment of cost of Rs.500/- payable on or before 16.3.2005, failing which the petition shall stand dismissed. On 16.3.2005, this appellant not paid cost and as such, the I.A was dismissed on the same day i.e. on 16.03.2005 and the suit was posted to 25.3.2005 for trial and it was posted for defendant evidence on 19.4.2005. Meanwhile Defendant No.3 filed another I.A. No. 207 of 2005 for extension of time for payment of cost imposed in I.A.No.15 of 2005 and the said I.A. was also dismissed on merits. No appeal or revision is filed against the said order. Later he also filed another I.A.No.402 of 2005 requesting the Court to reopen the matter as he is going to file revision in the High Court. I.A.No.402 of 2005 was also dismissed on merits. Later the suit was decreed on 03.11.2005 and a preliminary decree was passed.
9. Thereafter this appellant filed I.A.S.R.No.3537 of 2005 under Order IX Rule 13 to set aside the exparte decree and the same was returned on certain office objections and against the said return they filed C.R.P.No.373 of 2007, challenging the order in I.A.S.R.No.3537 of 2005 and on 27.02.2009 the same 7 SKS, J CCCA.48 of 2010 was dismissed by this Court, observing that it is not known as to whether the said conditional order has been complied with or not. The petitioner ought to have complied with the objections raised in the Court below. Instead of choosing the said mode of compliance, the petitioner has directly approached this Court. Therefore the approach of the petitioner is nothing but a premature one and apart from that, it amounts to abuse of process of Courts. As such they filed this present appeal against the judgment of trial Court in O.S.No.333 of 2001 praying the Court to set aside the judgment of the trial Court in O.S.No.333 of 2001.
10. Heard Smt. B.V.Aparna Lakshmi, learned counsel for the petitioner and Sri N.Ashok Kumar, learned counsel for the respondents.
11. The learned counsel for the appellant submitted that the trial Court without considering the applications filed by the appellant herein under Order IX Rule 7 and under Order IX Rule 13 to set aside exparte order and had hastily dismissed the said petitions and further submitted that the judgment of trial court is not in accordance with law. The respondent herein who is the plaintiff in the suit not proved the will and 8 SKS, J CCCA.48 of 2010 without examining the attestor, simply the trial court declared that it is proved and granted equal shares to the plaintiff and defendant No.9 in the suit, which is not in accordance with law. As such, said decree is liable to be set aside.
12. On the other hand the learned Counsel for the respondents would submit that already final decree proceedings are issued, commissioner is also appointed vide I.A.No.684 of 2006. He also filed the report and at that stage he filed I.A.No.175 of 2009 seeking condonation of delay of 1217 days under section 5 of limitation Act in resubmitting the I.A.S.R.No.3537 of 2005 and the said I.A. was also dismissed on merits and against the same, they filed Civil Revision Petition and the delay was condoned observing that not to proceed with the further steps. The main contention of the appellant is that as the trial court already passed final decree, the appellant cannot challenge the preliminary decree and the appellant has to challenge the final decree. Therefore the appeal itself is not maintainable.
13. Now the point for consideration is whether appeal against the preliminary decree is maintainable when there is a final decree passed by the Court?
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SKS, J CCCA.48 of 2010
14. As seen from the record there is a litigation from 2001 the suit is filed in the year 2001, wherein the appellant was set exparte and appellant filed set aside petition which is ordered on a condition that the condition was not complied by this appellant and the suit was decreed and preliminary decree was passed and filed petition under Order IX Rule 13 which was rejected stating that he has not complied with conditions in I.A.No.15 of 2005 the said rejection is also challenged in C.R.P. and C.R.P. is also dismissed which shows that the attitude of the petitioner approaching the court was not diligent and the suit is of the year 2001 and I.A. is of the year 2005. He was not diligent towards the proceedings and simply filed this appeal after passing the final decree in this court vide Civil Revision Petition in C.C.C.A.Sr.No.3215 of 2009. This Court observed that pending further orders, no further steps shall be taken until further orders, which shall be open to both the parties to file an application if they want any relief. By condoning the delay it is observed that the petitioner was trying to prosecute the case from the inception, as such the delay was condoned appeal was registered whereas, the final decree proceedings were issued in the year 2009 and appeal is 10 SKS, J CCCA.48 of 2010 filed in the year 2010, challenging the preliminary decree. It is the contention of respondent that when the final decree proceedings were already issued it is not permissible and they cannot challenge the same and he has to challenge the final decree as per the settled legal principles, whereas the law is they cannot challenge the final decree without challenging the preliminary decree as per the judgment in Venkatrao Anantdeo joshi Vs. Sau. Malatibai 1, wherein it was held that non challenge to a preliminary decree precludes a party from disputing its correctness in any appeal which may be preferred from final decree, as such there is no force in the contention of counsel for the respondent. Further in the present case, this appellant is trying to contest the case by filing petitions, whereas he is not diligent in complying the conditions of the Court. Further this Court in C.C.C.A.M.P.No. 443 of 2009 in C.C.C.A.(SR) No.3215 of 2009 also observed the same. Further present appeal is also dismissed for default and again restored. In view of the above, as the appellant is trying to contest the case from 2001 itself this appeal is allowed setting aside the judgment of the trial Court in O.S.No.333 of 2001, dated 1 (2003) 1 SCC 722 11 SKS, J CCCA.48 of 2010 03.11.2005, with a direction to give opportunity to this appellant to participate in the trial, on payment of cost of Rs.10,000/- to the respondent herein within 15 days from the date of the order, otherwise the appeal stands dismissed.
15. Accordingly, this appeal is allowed. There shall be no order as to costs.
16. Pending Miscellaneous Applications, if any, shall stand closed.
______________ K.SUJANA, J Date: 05.02.2024 BV