Telangana High Court
J.Abdul Raheem Since Deceased vs Md Saleem on 16 June, 2022
Bench: P Naveen Rao, Sambasivarao Naidu
HON'BLE SRI JUSTICE P.NAVEEN RAO
AND
HON'BLE SRI JUSTICE SAMBASIVARAO NAIDU
CITY CIVIL COURT APPEAL No.90 OF 2014
Date:16.06.2022
Between:
J.Abdul Raheem (died) & others
.....Appellants
And
Md. Saleem S/o.Late Jalna Mahboob,
Now aged about 71 yrs,
Occu : Business, R/o.H.No.11-3-209/3/2,
Mahmoodguda, Secunderabad
.....Respondent
The Court made the following:
HON'BLE SRI JUSTICE P.NAVEEN RAO
AND
HON'BLE SRI JUSTICE SAMBASIVARAO NAIDU
CITY CIVIL COURT APPEAL No.90 OF 2014
JUDGMENT: (per Hon'ble Sri Justice P. Naveen Rao)
This appeal is filed against the Judgment and Decree dated
29.11.2013 passed in O.S.No.420 of 1996 by the III Senior Civil Judge, City
Civil Court at Secunderabad.
2. Aggrieved by the Judgment and Decree dated 27.07.2005 in
O.S.No.420 of 1996 on the file of III Senior Civil Judge, City Civil Court,
Secunderabad, the plaintiff preferred CCCA.No.71 of 2006 before this Court.
Since the 1st defendant died, his legal representatives were impleaded as
respondents 22 to 27. On consideration of the matter, the learned Single
Judge of this Court, set aside the judgment and decree and remanded the
suit to the trial court. On remand, the suit was contested. By Judgment
and Decree dated 29.11.2013 the decree of partition was granted. Aggrieved
thereby the defendants filed this appeal.
3. As a preliminary submission, learned Senior Counsel appearing for
the appellants informs the Court that on remand, the legal heirs of the
deceased 1st defendant were not impleaded as defendants and no notice and
opportunity was given to them. Therefore, the judgment and decree is liable
to be set aside on that sole ground.
4. Learned counsel for the respondents/plaintiffs do not deny this
contention of learned Senior counsel appearing for the appellants.
5. While remanding the appeal in CCCA.No.71 of 2006, this Court
ordered as under :
"Therefore, in view of the above circumstances, the judgment of the Court below
is set aside and the matter is remanded to the lower Court for giving fresh
opportunity to both the parties to adduce fresh evidence with regard to the proof
of custom and also the consequences of such customary adoption and to decide
as to whether the right of succession to the natural family has been lost or not.
The appellant can also adduce evidence with regard to the alleged alienation by
all the family, which is now sought to be canvassed. The Court below is
directed to dispose of the case within six months. The records should be sent to
the lower Court by 31.12.2012. No costs."
6. In terms of the order of this Court, the parties are given liberty to lead
fresh evidence with regard to proof of custom and also consequences of such
customary adoption and to decide as to whether the right of succession to
the natural family has been lost or not. The appellant was given liberty to
adduce evidence with regard to alienations by all the family members. Thus,
even the legal heirs of the deceased 1st defendant were entitled to lead
evidence, if so required. They are also entitled to be given opportunity of
hearing. Thus, valuable right of legal heirs of the deceased 1st defendant
was denied, as they were not put on notice and behind their back, the
decree was passed.
7. In view thereof, the Judgment and decree under appeal is set aside.
Accordingly, the City Civil Court Appeal is allowed and the matter is
remanded once again to the trial Court for fresh adjudication. The plaintiff
shall take steps to implead the Legal representatives of the deceased 1st
defendant. The trial Court shall afford opportunity of hearing to all the
parties and conclude the proceedings, as expeditiously, as possible,
preferably within a period of six months from the date of receipt of copy of
this judgment. Pending miscellaneous petitions, if any, shall stand closed.
__________________
P.NAVEEN RAO,J
__________________________
SAMBASIVARAO NAIDU,J
16th June, 2022
Rds
