Smt. Anasuya vs Curru Swaroopa Rupa And 4 Others
2021 Latest Caselaw 1863 Tel

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