Telangana High Court
Pakalapati Satyanarayana, vs Nagalla Savitri, on 15 December, 2022
Bench: P.Sree Sudha
THE HONOURABLE SMT. JUSTICE P.SREE SUDHA
APPEAL SUIT No.701 & 443 of 2013
JUDGMENT:
A.S.No.701 of 2013 is filed against the order of the trial
Court in I.A.No.157 of 2011 in O.S.No.39 of 2010 dated
17.07.2013.
2. In pursuance of Preliminary Decree the Final Decree was
allowed. The Court allotted shares to the plaintiff and second
defendant by way of lottery dated 05.06.2013. The items No.1 to
4 of the suit schedule property shown as A, C, E, G and I was
allotted to plaintiff towards half share and property shown as B,
D, F, H and J was allotted to defendant No.2 towards half share.
It was held that plaintiff is entitled to recover the net income
over the suit schedule property from the defendant No.2 in
pursuance of the preliminary decree from the date of suit till
date of possession (towards half share). In fact, plaintiff is at
liberty to ascertain the income over the properties by filing the
separate application for execution of the decree.
3. A.S.No.443 of 2013 is filed against the order of the trial
Court in I.A.No.109 of 2012 in O.S.No.39 of 2010 dated
07.02.2013. The petitioner in I.A.No.109 of 2012 is the daughter
of the first respondent and second respondent is her brother. In
fact, she filed suit for partition and preliminary decree was
passed on 19.11.2010 in which the property was divided into
1/3rd share to each of them. Later the Commissioner was
appointed for division of property and demarcation, accordingly
he submitted his report, basing on the report final decree was
also passed. Then the first respondent/father died, as such she
filed I.A.No.109 of 2012 to "substitute two instead of three after
the word dividing and before the word equal in the first sentence
of the second Para of preliminary decree (i.e, last Para of first
page)."
4. The trial Court after hearing arguments of both sides and
also considering the other factors allowed the amendment.
Aggrieved by the said order A.S.No.443 of 2013 is preferred by
the brother of the plaintiff and mainly contended that Court
cannot modify the trial Court decree by way amendment. He
also stated that there was partition on 15.06.1989, it was
reduced into writing and it was acted upon as such present
amendment is not maintainable. In the event of death of
respondent No.1 shares cannot be decided by way of
amendment without independent adjudication. He intended to
prefer an appeal against the dismissal of C.M.A.No.7 of 2012 in
I.A.No.634 of 2011 filed under Order 9 rule 13 of C.P.C and
thus the changes in the preliminary decree will create
multiplicity of litigation. He also stated that he is entitled for his
father share as per Will deed dated 29.10.2010. Therefore,
requested the Court to set aside the order of the trial Court. He
also preferred A.S.No.701 of 2013 against the order of the trial
Court in I.A.No.157 of 2011 in O.S.No.39 of 2010 on the same
ground.
5. Heard arguments of both sides. Admittedly, the parties
herein are sister, father and brother. After passing of the final
decree father expired, sister requested the Court to amend the
shares as 1/2 to each of them (Brother and Sister) instead of
1/3 to each of them. The trial Court observed that after passing
of the preliminary decree no appeal was preferred. Though
respondent filed an application in I.A.No.634 of 2011 to condone
the delay of 363 days it was dismissed for default on 09.02.2012
against which filed another petition under Order 9 rule 9 of
C.P.C and the same was also dismissed. Against the orders in
I.A.No.634 of 2011, C.M.A.No.7 of 2012 was preferred and it
was also dismissed. The respondent filed an application to file
additional counter along with Will deed dated 29.10.2010 but it
was dismissed, against which he preferred C.M.A and the same
was also dismissed as such the argument of the appellant
herein that there was prior partition and Will deed was executed
by his father cannot be accepted at this stage. He might have
filed the said documents during pendency of the suit for
partition but he failed to do so. A final decree was passed as per
the report of the Commissioner, the father of the appellant died
on 04.02.2012. In the application filed for an amendment the
appellant also contested the matter and raised above objection
in the trial Court, considering the same allowed the application
as the parties herein are brother and sister and they are also
entitled for half share to each of them in the share of their
father, hence this Court finds no reason to interfere with the
amendment application allowed by the trial Court.
Hence both the appeals are dismissed confirming the
order of the trial Court in I.A.No.157 of 2011 dated 17.07.2013
& I.A.No.109 of 2012 dated 07.02.2013 in O.S.No.39 of 2010.
Miscellaneous petitions pending, if any, shall stand
closed.
_________________________
JUSTICE P.SREE SUDHA
DATED: 15.12.2022
tri
THE HONOURABLE SMT. JUSTICE P.SREE SUDHA
APPEAL SUIT No.701 & 443 of 2013
DATED:15 .12.2022
TRI
