Andhra Pradesh High Court - Amravati
K.Christy Caroline E.G6 Ors vs K.Shepard Kinghs Burgh 14 Ors on 5 February, 2024
IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
APPEAL SUIT No.2672 OF 1999
Between:
1. Karipalli Christy Caroline, 63 years,
W/o.late K.S.Hirams, Christian,
resident of Prakasamnagar, Rajahmundry,
East Godavari District and 7 others ... Appellants /
defendants
And
1. Karipalli Shepard Kinghs burgh (died) and 45 others
... Respondents/
plaintiffs
DATE OF ORDER PRONOUNCED : 05.02.2024
SUBMITTED FOR APPROVAL:
HONOURABLE SRI JUSTICE V.GOPALA KRISHNA RAO
1. Whether Reporters of Local Newspapers
may be allowed to see the order? : Yes/No
2. Whether the copy of order may be
marked to Law Reporters/Journals? : Yes/No
3. Whether His Lordship wish to
see the fair copy of the order? : Yes/No
_________________________
V.GOPALA KRISHNA RAO, J
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* HONOURABLE SRI JUSTICE V.GOPALA KRISHNA RAO
+ APPEAL SUIT No.2672 OF 1999
% 05.02.2024
APPEAL SUIT No.2672 OF 1999 :
Between:
1. Karipalli Christy Caroline, 63 years,
W/o.late K.S.Hirams, Christian,
resident of Prakasamnagar, Rajahmundry,
East Godavari District and 7 others ... Appellants /
defendants
And
1. Karipalli Shepard Kinghs burgh (died) and 45 others
... Respondents/
plaintiffs
! Counsel for Appellants : Sri M.V.Suresh
^ Counsel for Respondents : Sri P.Vivek
(represented by Sri A.S.C.Bose)
< Gist:
> Head Note:
? Cases referred:
1) (2004) 1 SCC 271
2) AIR 1965 SC 271
3) 2011 SCC OnLine AP 744
4) AIR 1975 SC 733
This Court made the following:
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THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO
APPEAL SUIT No.2672 OF 1999
JUDGMENT:
-
This Appeal, under Section 96 of the Code of Civil Procedure
[for short 'the C.P.C.'], is filed by the Appellants/defendants
challenging the Decree and Judgment, dated 23.07.1999, in O.S.
No.175 of 1988 passed by the learned Principal Senior Civil Judge,
Rajahmundry [for short 'the trial Court']. The Respondents herein
are the plaintiffs and L.Rs. of plaintiffs in the said Suit.
2. The respondents/plaintiffs filed a Suit for partition of plaint
schedule property into 8 equal shares and to put the plaintiffs 1 to 7
in possession of 1/8th share each and for future profits from the date
of plaint till the date of possession and for costs.
3. Both the parties in the Appeal will be referred to as they are
arrayed before the trial Court.
4. The brief averments of the plaint, in O.S. No.175 of 1988, are
as under:
The first plaintiff and late K.S.Hirams are the sons and
plaintiffs 2 to 7 are the daughters of late Karipalli Cornelius, who
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died intestate on 30.06.1960. The first plaintiff's only brother
K.S.Hirams died on 01.08.1977. The first defendant is the wife and
defendants 2 to 5 are the sons and defendants 6 and 7 are the
daughters of late K.S.Hirams. The plaint schedule property is the
self acquired property of late Karipalli Cornelius. He purchased the
site under sale deed dated 03.10.1955 and constructed house in it.
After his death, plaintiffs and late K.S.Hirams inherited the plaint
schedule property in equal shares. The wife of Cornelius
predeceased him. So they are the only heirs entitled to the plaint
schedule property and the defendants became entitled to the share
of late Hirams. Till the death of Cornelius he used to manage the
plaint schedule property by letting out the building and collecting
rents. After his death the plaintiffs and K.S.Hirams, the plaintiffs and
the defendants are continuing to do so. At present, the 8 th defendant
is in possession of the schedule property as tenant. The plaintiffs
with an intention to have their shares separated, have been
requesting the defendants to partition the property since one year,
but the defendants postponing the same. Plaintiffs also got issued
notice to the first defendant on 16.07.1988 demanding division of
the plaint schedule property and requesting her to co-operate with
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them in effecting division. The first defendant received the said
notice but did not send any reply. Hence, the plaintiffs are
constrained to file the suit.
ii) Subsequent to the suit, plaintiffs 1 and 2 died and their legal
representatives were added as plaintiffs 8 to 13, subsequent to the
suit, 12th plaintiff died and his legal representative was added as
plaintiff No.14.
5. The first defendant filed a written statement, which was
adopted by the defendants 2 to 7, by denying all the averments
mentioned in the plaint and further contended as under: -
The plaint schedule property is not the self acquired property
of Karipalli Cornelius and the said property was acquired with the
funds of late Hirams by his father, accordingly, the said property is
the property of late Dr.K.S.Hirams and the said Cornelius acted as
trustee. Between 1955 to 1958 late Hirams lived in United States
and sent money to his father, with that funds, his father constructed
the building. After returning from U.S., the said Cornelius delivered
the possession of the property to Dr.Hirams, who got the building
mutated in his name and paid taxes although. Cornelius never
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claimed any right in the property any time. It was Dr.Hirams, from
the year 1960 that was in exclusive possession along with the
defendants. The building is not in the tenancy of any one now and it
is wholly in occupation of defendants and they are alone entitled to
the property exclusive.
ii) After adding the legal representatives, the first defendant filed
additional written statement, which was adopted by defendants 2 to
7. Its brief averments are as follows:
iii) The plaint is non-joinder of necessary parties and the suit is
barred by time for the reason that since the time of return of Hirams
from America, he was in possession of the schedule property.
6. Based on the above pleadings, the trial Court framed the
following issues:
(i) Whether the suit property is valued property?
(ii) Whether the Court fee paid is correct?
(iii) Whether the plaintiffs are in joint possession of plaint
schedule property?
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(iv) Whether the schedule properties are the self
acquisition of late Cornelius?
(v) Whether the plaintiffs are entitled to share in the
plaint schedule properties?
(vi) Whether the plaintiffs are entitled to partition of plaint
schedule properties by metes and bounds?
(vii) Whether the plaintiffs are entitled to past and future
profits?
(viii) To what share each of the parties are entitled to?
(ix) To what relief?
Additional Issues:
(i) Whether the suit is bad for non-joinder of necessary
parties?
(ii) Whether the suit is barred by time?
(iii) To what relief?
7. During the course of trial in the trial Court, on behalf of the
Plaintiffs, PW1 and PW2 were examined and Ex.A1 to Ex.A4 and
Ex.X1 and Ex.X2 were marked. On behalf of the Defendants DW1
was examined and Ex.B1 to Ex.B11 were marked.
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8. After completion of the trial and on hearing the arguments of
both sides, the trial Court decreed the suit with costs vide its
judgment, dated 23.07.1999, against which the present appeal is
preferred by the appellants/defendants in the Suit questioning the
Decree and Judgment passed by the trial Court.
9. Heard Sri M.V.Suresh, learned counsel for appellants/
defendants through virtual hearing and Sri A.S.C.Bose, learned
counsel representing Sri P.Vivek, learned counsel for
respondents/plaintiffs.
10. Learned counsel for the appellants would contend that the trial
Court failed to appreciate the fact that Ex.A4 dated 14.07.1988 copy
of registered partition is silent about the existence of suit schedule
property, as such the Court below failed to held that the suit
schedule property is not the self acquired property of late Cornelius.
He would further contend that the trial Court failed to consider Ex.A4
in a prospective manner wherein it is mentioned that parties to
document divided all the properties left by Cornelius. He would
further contend that there is nothing in Ex.A4 to show that the plaint
schedule property is the self acquired property of late Cornelius. He
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would further contend that the trial Court failed to appreciate the
evidence in a proper manner and came to wrong conclusion by
decreeing the suit and that the appeal may be allowed.
11. Per contra, the learned counsel for respondents would
contend that on appreciation of the entire evidence on record, the
trial Court rightly decreed the suit for partition and there is no need
to interfere with the finding given by the learned trial Judge and he
would further contend that appeal may be dismissed.
12. Having regard to the pleadings in the suit, the findings
recorded by the trial Court and in the light of rival contentions and
submissions made on either side before this Court, the following
points would arise for determination:
1. Whether the plaint schedule property is the self
acquired property of Karipalli Cornelius or
Dr.K.S.Hirams?
2. Whether the suit for partition is bad for non-
joinder of necessary parties?
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3. Whether the decree and judgment passed by the
trial court needs any interference? If so, to what
extent?
13. Point No.1:
Whether the plaint schedule property is the self
acquired property of Karipalli Cornelius or
Dr.K.S.Hirams?
The admitted facts are the first plaintiff and late K.S.Hirams
are the sons and plaintiffs 2 to 7 are the daughters of late Karipalli
Cornelius, who died intestate on 30.06.1960 and the first plaintiff's
only brother K.S.Hirams died on 01.08.1977 and the first defendant
is the wife and defendants 2 to 7 are the sons and daughters of late
K.S.Hirams.
14. It is the specific case of the plaintiffs that the plaint schedule
property is the self acquired property of late Cornelius and he
purchased the site under sale deed dated 03.10.1955 and
constructed house in the site. The plaintiffs further pleaded that after
the death of Cornelius, the plaintiffs and late K.S.Hirams inherited
the plaint schedule property in equal shares and the wife of
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Cornelius predeceased him and so they are the only legal heirs
entitled the plaint schedule property and while so K.S.Hirams died
intestate on 01.08.1977, the death of Cornelius and the death of
K.S.Hirams is not in dispute by both sides.
15. The learned counsel for appellants would contend that the
plaint schedule property is not the self acquired property of
Cornelius and the said property is the property of late Dr.K.S.Hirams
held in trust for him and acquired with the funds of late Hirams by
his father late Cornelius. The learned counsel for appellants further
contend that after the death of Cornelius, the property continued to
be that Dr.Hirams till he passed away and the same came to be
inherited by the defendants. He would further contend that as the
property never belongs to Cornelius as a beneficiary owner, but the
same was held by him as a trustee.
16. In order to prove the case of the plaintiffs, the plaintiffs relied
on the evidence of PW1 and PW2. PW1 is the 6th plaintiff, PW2 is
the Secretary of Co-operative House Building Society. The plaintiffs
relied on Ex.A1 copy of document vide document bearing
No.4041/1955. In her evidence PW1 deposed that she is the 6th
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plaintiff in the suit and the first plaintiff is her elder brother, plaintiffs
8 and 9 are wife and son of the deceased first plaintiff and plaintiffs
2 to 5 and 7 are his sisters. She further deposed that plaintiffs 10 to
13 are the sons of the deceased/second plaintiff. As per her
evidence, the plaint schedule property originally belongs to her
father by name late Karipalli Cornelius and it is his self acquired
property. She further deposed that her father joined in the building
society and purchased the same from building society for Rs.1250/-
under a registered sale deed and the original registered sale deed is
with building society because he obtained a loan from the said
society and Ex.A1 is the certified copy of the registered sale deed
dated 03.10.1955. In cross examination, she admits that she
accompanied with his father at the time of Ex.A1 to the building
society. She pleaded ignorance about the Ac.8.00 cents of land
belongs to her father situated at Kamsalabethapudi in Narsapuram
taluk. She further admits that she does not know in whose house the
said building society was situated at that time and it is in the year
1955 and she does not know the boundaries of the suit schedule
property and she does not have any other evidence except her word
that she accompanied her father on the date of Ex.A1. She further
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admits that by the time of Ex.A1 they were residing in a rented
house and there is no house in the schedule property of Ex.A1, by
then her elder brother Hirams was in states. She further deposed
that her father joined as a secondary grade teacher, but
subsequently he worked as B.Ed. Teacher and his earnings were
only in 2 digits in those days. She further stated that her mother was
also working as teacher and they were 8 in number to their parents.
The above admissions goes to show that she is not having any
personal knowledge about the suit transaction.
17. It is the specific case of the defendants that husband of first
defendant and father of other defendants by name Hirams used to
stay in States by the date of Ex.A1 and he was a famous surgeon
and used to work in States and send money to his father Cornelius,
from out of the same, his father got obtained the sale deed from the
House Building society. It does not mean that it is the self acquired
property of father of Hirams by name Karipalli Cornelius. It is
admitted by PW1 that by the date of Ex.A1 they were residing in a
rented house and there is no house in the schedule property of
Ex.A1, by then, her elder brother Dr.Hirams was in States as a
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doctor. She further admits that her brother Dr.Hirams was a famous
surgeon in both East and West Godavari districts in those days and
he earned a lot. She further admits that after Dr.Hirams returned
from America, Dr.Hirams started to serve in A.E.L.C. hospital at
Alcotgardens from 1958 onwards. Here it is relevant to say that
Ex.A1 is dated 03.10.1955, it was pleaded by the defendants that
Cornelius was not having sufficient capacity to purchase the site
under Ex.A1. PW2 is the secretary of co-operative building society.
PW2 admits that the site value under Ex.A1 is Rs.449-14 annas and
8 paise by then. There was a specific admission by PW1 in his cross
examination itself that in those days by the year 1955, by the date of
Ex.A1 her father earnings were only 2 digits and he used to work as
secondary grade teacher and they are 8 in number to his parents,
therefore, it strengthen the case of the defendants that the
Cornelius is not having any sufficient money to purchase the Ex.A1
site with his individual income.
18. Another important circumstance to disbelieve the case of the
plaintiffs is that Ex.A4 goes to show that on 14.07.1988 the first and
second plaintiffs and wife of Hirams partitioned the properties of
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Cornelius under a registered partition deed dated 14.07.1988, after
the death of Cornelius. It is relevant to say Cornelius died on
30.06.1960 intestate and Hirams also died intestate on 01.08.1977
by leaving the defendants as a legal representatives. The same is
not in dispute by both sides. The plaintiffs are claiming relief of
partition of the plaint schedule property on the pretext that the plaint
schedule property is the self acquired property of Cornelius and the
said Cornelius died intestate in the year 1960 by leaving the
plaintiffs and defendants as a legal representatives and the plaint
schedule property is the self acquired property of Cornelius. It is not
in dispute that the Cornelius died intestate on 30.06.1960 and
Hirams i.e., eldest son of Cornelius also died intestate on
01.08.1977 and the plaintiffs 1 and 2 and husband of first defendant
and father of other defendants i.e., Hirams got divided the properties
of Cornelius under registered partition deed dated 14.07.1988,
Ex.A4 is the registration extract of the said registered partition deed
dated 14.07.1988. Here it is relevant to say that the Cornelius died
on 30.06.1960 intestate and the said registered partition deed is
dated 14.07.1988. In Ex.A4 nothing was mentioned about the plaint
schedule property and there is no mention in Ex.A4 that Cornelius
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was having plaint schedule property. There was a specific recital in
Ex.A4 that the plaintiffs 1 and 2 and wife of Hirams divided the self
acquired properties of Cornelius under Ex.A4 registered partition
deed dated 14.07.1988, therefore non mentioning of the plaint
schedule property in Ex.A4 is certainly fatal to the case of the
plaintiffs.
19. A reliance is placed by the learned counsel for plaintiffs in
Md.Mohammad Ali (dead) by L.Rs. vs. Jagadish Kalita and
others1, the facts in the aforesaid decision relates to the suit filed for
declaration of title, whereas in the present case, the suit is filed for
partition of the suit schedule property. It is not the case of the
defendants in the case on hand that the possession of the
defendants is by way of adverse possession.
20. A reliance is placed by the counsel for respondents in the
judgment of Telangana High Court in Dr.Mutyala Vinod Kumar vs.
Smt. M.Shashikala Naidu and another. In the case on hand, it is
not the case of the appellants that the transaction of Ex.A4 is
(2004) 1 SCC 271
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benamee transaction. The facts and circumstances in the aforesaid
cited decision are different to the instant case.
21. The plaintiffs relied on the evidence of PW2. Admittedly PW2
has no personal knowledge about the suit transaction because he is
working as a secretary of building society from 1976 onwards, Ex.A1
is relates to the year 1955. PW2 admits in cross examination that
since 1976 onwards he is working as a Secretary of Co-operative
Building Society and as on date their building society does not
undertake the construction of the buildings and he does not know
from whom the sanction for construction of the house to be obtained
for construction of a house in the said plot. He further admits that
the building society does not collect building tax or site tax, but the
Panchayat collects the same. He further admits in the year 1970 or
1971 Gandhi Prakasamnagar panchayat area merged into
Rajamahendravaram Municipality and subsequently it became
Municipal Corporation, now their building society is not sanctioning
authority for the construction of any building or for alteration of any
building. He further admits that at the time of construction of the
building in the year 1955 he never went to the building and he
18 VGKRJ
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further admits that they are no way concerned who are the owner of
the site and building and who advanced funds for construction and
who is paying taxes to the concerned authority. Another crucial
admission made by him is that the loan amount was fully discharged
on 12.06.1967. It is not in dispute that the Cornelius died on
30.06.1960, husband of first defendant was only son of Cornelius. In
cross examination PW2 admits that by the time he joined in the
house building society the debt was already cleared and he does
not know the father-in-law of the first defendant i.e., Cornelius. He
further admits that he cannot say who paid the loan instalment.
Ex.B2 to Ex.B4 are the relevant correspondence when the loanee
committed default and demanding for their payment and the value of
the building was nearly Rs.12,00,000/-. As per his evidence, he
joined in the House Building Society as a Secretary in the year 1976
whereas the Ex.A1 is relates to the year 1955 therefore, his
evidence is not supporting the case of the plaintiffs to show that the
plaint schedule property is self acquired property of late Cornelius.
22. Learned counsel for plaintiffs would contend that there is no
pleading in the written statement about Ex.A4 by the defendants.
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As seen from the plaint averments, there is no pleadings in the
plaint itself about Ex.A4. Ex.A4 is not filed along with the plaint. The
plaintiffs filed Ex.A4 during the course of trial, therefore, non-
mentioning of Ex.A4 in the written statement is not fatal to the case
of the defendants.
23. As per the evidence of DW1, Dr.Hirams is her husband and
she is the first defendant and the other defendants are her children
and the suit schedule property was acquired by her husband. She
further deposed that in the year 1955 her husband went to States in
the month of July, after her husband left to the States, her father-in-
law purchased a vacant site with the money of her husband and her
husband returned to India in the year 1958 and her father-in-law
constructed a house with her husband money. She further deposed
that after her husband returned from the States, her husband repaid
the loan amount taken by her father-in-law for the construction of the
said house to the Society and her father-in-law died in the year 1960.
She further deposed that Ex.B7 and Ex.B8 are the receipts issued
by the Building Society evidencing the payment of loan amount by
her husband on the said two occasions, by the date of Ex.B7 and
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Ex.B8, her father-in-law is no more. The defendants are relied on
Ex.B2 to Ex.B11. Ex.B2 is a letter addressed by the Secretary of
Building Society to Sri K.Hirams, i.e., husband of first defendant.
The recitals in Ex.B2 goes to show that Sri Hirams paid an amount
of Rs.2,200/- on 24.06.1961 towards the overdue amount under the
loan account of Sri Cornelius. Ex.B3 is the letter addressed by the
Deputy Registrar, Rajahmundry to the president of Housing Co-
operative Society. Ex.B4 is the letter addressed by the secretary of
building society to the Deputy Registrar of Co-operative Society,
wherein it was informed about the payment of money of Rs.2,200/-
by Sri Hirams. Ex.B5 is the postal card, Ex.B7 to Ex.B9 goes to
show that Hirams discharged the amount, under Ex.B7 to Ex.B9, in
the year 1967. It is relevant to mention that the Cornelius died in the
year 1960. Ex.B11 is the bunch of property tax, demand registers for
the year 1973-74 to 1988-89. Ex.B11 goes to show that the plaint
schedule property is in exclusive possession of Hirams during his
life time and his name is also mutated in Municipal records. For the
foregoing reasons, it is undoubtedly clear that the plaint schedule
property is not the joint family property of both the parties to the suit
and the plaintiffs failed to prove that the plaint schedule property is
21 VGKRJ
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the self acquired property of Cornelius. As stated supra, the
Cornelius died in the year 1960 and in the year 1988 the plaintiffs 1
and 2 and husband of first defendant partitioned the properties of
Cornelius, there is no whisper about the plaint schedule property in
Ex.A4. As stated supra, non-mentioning of the plaint schedule
property in Ex.A4 is certainly fatal to the case of the plaintiffs.
Therefore, I am of the considered view that the plaint schedule
property is not self acquired property of Cornelius. The oral and
documentary evidence strengthen the case of the defendants to
show that the plaint schedule property was not the self acquired
property of Cornelius, accordingly the point No.1 is answered
against the plaintiffs.
24. Point No.2: Whether the suit for partition is bad for non-
joinder of necessary parties?
The defendants specifically pleaded in the additional written
statement that all the legal representatives of plaintiffs 1 and 2 are
not added as a parties to the suit and therefore the suit for partition
is bad for non-joinder of necessary parties. It is relevant to say that
after filing additional written statement an additional issue was
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framed by the trial Court on 24.08.1998 that "Whether the suit is bad
for non-joinder of necessary parties". The said additional issue was
framed by the trial judge before the commencement of the trial itself.
There was a clear admission by PW1 in her evidence in cross
examination that the deceased first plaintiff is her brother and there
are some other children to the deceased first plaintiff apart from 9 th
defendant and they were not made as parties to the suit. She further
admits that there are 5 daughters to the deceased/ first plaintiff, the
said 5 daughters were not added as parties. She further admits that
as per the Christian Law all the sons and daughters are equally
entitled for shares. The material on record reveals that during the
pendency of the suit, 12th plaintiff died, wife of the 12th plaintiff is not
added as a party to the suit. Therefore, it is undoubtedly clear that
the plaintiffs failed to add the 5 daughters of the first plaintiff and so
also wife of 12th plaintiff as a party to the suit for partition.
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25. The legal position in this regard is no more res integra. In the
case of Kanakarathanammal v. V. S. Loganatha Mudaliar2, a five-
Judge Bench of the apex Court held at para-14 as follows:
"14. We do not think there is any justification for allowing the
appellant to amend her plaint by adding her brothers at this late
stage. We have already noticed that the plea of non-joinder had
been expressly taken by respondents 1 and 2 in the trial Court
and a clear and specific issue had been framed in respect of this
contention. While the suit was being tried, the appellant might
have applied to the trial Court to add her brothers, but no such
application was made. Even after the suit was dismissed by the
trial Court on this ground it does not appear that the appellant
moved the High Court and prayed that she should be allowed to
join her brothers even at the appellate stage, and so, the High
Court had no occasion to consider the said point. The fact that
the High Court came to the contrary conclusion on the question of
title does not matter, because if the appellant wanted to cure the
infirmity in her plaint, she should have presented an application in
that behalf at the hearing of the appeal itself. In fact, no such
application was made even to this Court until the appeal was
allowed to stand over after it was heard. Under the circumstances,
we do not think it would be possible for us to entertain the said
application. In the result, the application for amendment is
rejected."
2 AIR 1965 SC 271
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In the case on hand, as stated supra, a specific plea was
taken by defendants in the additional written statement that all the
legal representatives of plaintiffs 1 and 2 are not added as a parties
to the suit and therefore the suit for partition is bad for non-joinder of
necessary parties. The material on record clearly reveals that the
five daughters of the deceased first plaintiff were not added as a
parties to the suit for the reasons best known to the plaintiffs. It is
also made it clear that the wife of the 12th plaintiff was not added as
a party to the suit for the reasons best known to the plaintiffs.
Therefore, certainly, the suit is bad for non-joinder of necessary
parties.
26. In the case of Jahangirji (died) by LRs v. K. Kumar 3, the
composite High Court of Andhra Pradesh, Hyderabad, held at para-
30 as follows:
"30. In K. Bhaskar Rao v. K.A. Rama Rao, 2010 (5) ADD 339, a
learned Judge of this Court was dealing with a suit for partition
wherein the defendant in the written statement raised the plea of
non-joinder of the two sisters of the parties for which the plaintiff
stated in his rejoinder that as they were already married and were
given sufficient share in the form of cash and articles, they were
not necessary parties. The plaintiff came up with an application to
3 2011 SCC OnLine AP 744
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implead the sisters as parties in the first appeal and the learned
Judge rejected the request holding that the defect of non-joinder
of necessary parties being fatal, the same cannot be cured by
impleading them in the appeal and upheld the dismissal of the suit
on the ground of non-joinder of necessary parties by the trial
Court. The decisions reported in Naba Kumar Hazra v.
Radhashyam Mahish (supra), Chenthiperumal Pillai
Chanthanamuthu Pillai v. D.M. Devasahayam (supra) and
Kanakarathanammal v. V.S. Loganatha Mudaliar (supra), were
relied upon before the learned Judge in support of the proposition
that non-joinder of sisters is a fatal defect and the suit for partition
is liable to be dismissed even on that ground alone."
27. In the aforesaid decision, the composite High Court of Andhra
Pradesh further held at para-31 as follows:
"31. ... ... ... The decision of the Division Bench of this Court in
Addepalli Venkata Laxmi v. Ayinampudi Narasimha Rao (supra),
was one where the objection about the non-joinder of necessary
parties was taken for the first time during the arguments in the
letters patent appeal due to which the objection was not
entertained, unlike the present case where the objection runs
throughout the litigation right from the written statement."
28. In the aforesaid case, the composite High Court of Andhra
Pradesh further held at para-32 as follows:
"32. ... ... ... Much emphasis is attempted to be laid on the use of
the word "mis-joinder of parties" in the written statement and in the
issue framed by the trial Court, while the intent and purport is
26 VGKRJ
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patent and clear that it was about the non-joinder of proper and
necessary parties. ... ... ... The decision in K. Bhaskar Rao v.
K.A. Rama Rao (supra), following the decisions of the Privy
Council and the Supreme Court apart from the decision of a Full
Bench of Travancore Cochin is binding and the defect of non-
joinder of necessary parties cannot be cured by impleading them
in the appeal and is fatal to the suit for partition."
The ratio laid down in the aforesaid decisions squarely
applicable to the present facts of the case.
29. The learned counsel for plaintiffs/respondents placed a
reliance in Harihar Prasad Singh and others vs. Balmiki Prasad
Singh and others 4 , the facts in the aforesaid decision relates to
Order 41 Rule 33 Cr.P.C. Here the case on hand, the suit is for
partition of the plaint schedule properties.
Admittedly the suit is instituted by the plaintiffs in the
year 1988 for claiming the relief of partition of the plaint
schedule property. Admittedly, the defendants have taken a
specific plea in the additional written statement itself that the
suit for partition is bad for non-joinder of necessary parties
before the commencement of trial. An issue was also framed by
AIR 1975 SC 733
27 VGKRJ
AS_2672_1999
the trial Court and evidence was adduced by both the parties,
the plaintiffs did not evince any interest to add the daughters of
the deceased first plaintiff, and wife of the deceased 12 th
plaintiff as a party to the suit, for the reasons best known to
them. Therefore, certainly the suit for partition is bad for non-
joinder of necessary parties. Therefore, in view of the above
reasons, the suit for partition is a bad for non-joinder of necessary
parties. Accordingly, the point No.2 is answered against the plaintiffs.
30. Point No.3: Whether the decree and judgment passed by
the trial court needs any interference? If so, to
what extent?
In view of my findings in point Nos.1 and 2, the trial Court
committed a grave error in decreeing the suit, therefore, the decree
and judgment passed by the trial Court is not sustainable under law
and the same is liable to be set aside. Consequently the suit in
OS.No.175 of 1988 on the file of Principal Senior Civil Judge,
Rajahmundry is dismissed.
31. In the result, the Appeal Suit is allowed by setting aside the
decree and Judgment dated 23.07.1999 in O.S.No.175 of 1988
28 VGKRJ
AS_2672_1999
passed by the learned Principal Senior Civil Judge, Rajahmundry.
Considering the circumstances of the case, I order each party do
bear their own costs.
As a sequel, miscellaneous petitions, if any, pending in the
Appeal shall stand closed.
_________________________
V.GOPALA KRISHNA RAO, J
Date: 05.02.2024
sj
29 VGKRJ
AS_2672_1999
THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO
APPEAL SUIT No.2672 OF 1999
Date: 05.02.2024
sj
