P.Ashi Reddy vs Smt.Shobha Rani Jyothi
2022 Latest Caselaw 6047 Tel

        THE HON'BLE SMT. JUSTICE P. SREE SUDHA

                     C.C.C.A.No.13 of 2022

                           JUDGMENT

1. Aggrieved by the final decree order dated 10.12.2021

passed in I.A.No.366 of 2012 in O.S.No.22 of 2001 on the file of

the learned XII Additional Chief Judge, City Civil Court,

Secunderabad, the appellants/Respondents/Defendants

preferred this Appeal.

2. The parties hereinafter be referred to as arrayed in

I.A.No.366 of 2012 for the sake of convenience.

3. One Shoba Rani @ Jyothi-respondent/petitioner/plaintiff

filed an application under Order 20 Rule 18 read with Section

151 CPC before the trial Court seeking to pass a final decree in

terms of Preliminary Decree dated 06.09.2007 passed in

O.S.No.22 of 2001.

4. The petitioner-plaintiff herein would submit that she filed

O.S.No.22 of 2001 for partition of agricultural land situated at

Kaniapally Village, Koilakonda Mandal, Mahboobnagar District,

along with other properties against the respondents-defendants

and the Court has passed a preliminary decree on 08.09.2007

in respect of the land in an extent of Ac.0-55 guntas in

Sy.No.166, out of Ac.9-02 guntas in Sy.Nos.166, 173, 183, 185,

189, 190 and 191 and also for mesne profits.

5. The respondents-defendants herein filed their counter in

the application by contending that the Court has partly decreed

the suit by declaring that the plaintiff is entitled for Ac.0-55

guntas of land in Sy.No.166 and dismissed the claim pertaining

to Item Nos.1 to 3 of plaint 'A' schedule properties and also

movables in 'B' schedule and a decree was passed for mesne

profits under a separate enquiry. They would further submit

that the land at Kaniapally Village is still an undivided joint

family property among the respondents, his father and other

coparceners. They would also submit that the petitioner has to

implead proper and necessary parties before seeking any

division in terms of preliminary decree and without any notice

to the persons in possession of the same, there cannot be any

effective partition or division or allotment of her share in terms

of preliminary decree and that without any effort to identify the

land through process of survey by a competent Surveyor is not

proper.

6. Respondents in their additional counter stated that this

trial Court has no jurisdiction to undertake the final decree

proceedings as the petitioner prayed for partition of four items

in plaint 'A' schedule and movables under 'B' schedule. The

Court dismissed the claim pertaining to item Nos.1 to 3 of plaint

'A' schedule properties which are within the jurisdiction of trial

Court, but item No.4 is situated at Mahboobnagar District, as

such the petitioner ought to have taken steps for transfer of

preliminary decree under Section 39 of CPC and it amounts to

procedural irregularity and it is beyond the scope of Section 17

of CPC. As the objection was taken under Section 21 of CPC, the

Court has to decide the said objection as to the territorial

jurisdiction.

7. The trial Court considering the evidence on record and the

arguments of both sides allowed the application by passing final

decree in terms of preliminary decree by allotting Ac.1-15

guntas of land to the petitioner in Sy.No.166 as shown in the

rough sketch of the Advocate Commissioner.

8. Aggrieved by the said order, this appeal is preferred by the

appellants-respondents contending that the order of the trial

Court is misconceived. Though, they relied upon the decisions

reported in NAHAR SINGH V/s. HARNAK SINGH1 and PAWAN

KUMAR DUTT V/s. SHAKUNTALA DEVI2, the trial Court held

that those cases are not applicable to the case on hand on the

ground that they relate to specific performance of the suit and

the present suit is for partition. The trial Court did not take into

consideration regarding the identification of the property. The

respondents-defendants also raised a dispute regarding the

jurisdiction. They further stated that neither in the complaint

nor in the preliminary decree, the boundaries of the agricultural

land, which is sought to be allotted to the petitioner-plaintiff

through final decree, were not mentioned and without any

boundaries to the said extent, it is impossible to identify for

demarcation. Appellants further stated that Advocate

Commissioner was appointed in I.A.No.366 of 2012 and gave

notice to the Appellants on 20.10.2016, a work memo was filed

by the Appellants on 22.10.2016. Advocate Commissioner

visited the property with the help of Village Revenue Officer and

Government Surveyor and also secured the presence of two

panchas and referred to a Tonch Map, prepared a report and in

her report she stated the boundaries of schedule property as

1996 (6) SCC 699

(2010) 15 SCC 601,

identified by Surveyor and Village Revenue Officer, though no

such boundaries were provided by the respondent either in the

plaint or in the final decree and the Appellants made an

objection. Advocate Commissioner referred to certain

photographs showing the presence of the Appellant No.1 who

refused to sign on the proceedings of the Commissioner. They

further stated that no notice was issued to the neighbouring

farmers and the demarcation of Ac.0-55 guntas of land was

shown by the Commissioner without following due process of

law. The Trial Court without considering the objections of

Appellants passed final decree in terms of the report by allotting

the land to the respondent. Therefore, the Appellants requested

to set aside the final decree dated 10.12.2021.

7. Heard the arguments of both sides. Perused the entire

record.

8. O.S.No.22 of 2001 is filed by Shoba Rani @ Jyothi against

her father/defendant No.1 and defendant No.2 is the wife of

defendant No.1. Plaintiff's marriage took place in the year 1998.

In her marriage, defendant No.1 introduced defendant No.2 as

his wife. As the defendant No.1 married during the subsistence

of first marriage with the mother of plaintiff, plaintiff's mother

filed O.S.No.13 of 2000 and one Venkatamma filed O.S.No.12 of

2000 before Family Court, Secunderabad and the mother of

plaintiff also gave a complaint against defendant No.1 under

Sections 494 and 498-A of IPC. Defendant No.1 also filed a suit

through his children through defendant No.2 i.e., O.S.No.256 of

2000 for declaration of title and possession. When she made an

appearance in the suit, plaintiff came to know that defendant

No.1 gifted item No.1 of 'A' schedule property to the defendant

No.2. Then, the Plaintiff demanded for partition of the property

on several occasions, but defendant No.1 was postponing the

same on one pretext or the other. As she is entitled for half

share in the family, plaintiff filed the suit.

9. Defendant No.1 stated that he married one Shakuntala in

the year 1960 and she expired after giving birth to a daughter.

Then, he married plaintiff's mother but she left his company

during 1975-76 leaving the plaintiff with him. Again he married

defendant No.2 in the year 1979 with the consent of plaintiff's

mother. Defendant No.1 purchased Ac.6-20 guntas of land from

out of item No.4 with his earnings and gifted the same in favour

of defendant No.2 in the year 1999. Remaining extent of Ac.3-

20 guntas belongs to first defendant's father and his

coparceners. So far there is no division of Ac.3-20 guntas in

item No.4 of plaint 'A' schedule property. Defendant No.1

purchased item No.1 of the plaint schedule 'A' from

Geethanagar Co-operative Housing Society Limited about 18

years ago. In the year 1976, defendant No.1 purchased 55

Square Yards and constructed ground and first floor and gifted

the same in favour of his minor sons in February, 2000. Item

No.2 of plaint 'A' schedule belongs to defendant No.2. He stated

that plaintiff has no right to question the property gifted or

transferred by him either to the second defendant or others. He

mainly contended that plaintiff is not entitled for partition.

10. The Trial Court considering the evidence on record partly

decreed the suit in favour of plaintiff and held that the plaintiff

is entitled for 55 guntas of land in Sy.No.166 of Kaniapally

Village and dismissed other claim.

11. Plaintiff in the suit filed an application to pass final decree

in pursuance of the said preliminary decree. The Trial Court

considering the report of the Advocate Commissioner allowed

the application by allotting Ac.1-15 guntas of land to the

petitioner in Sy.No.166.

12. The Appellants mainly contended that they filed a work

memo on 22.10.2016 specifically requesting the Advocate

Commissioner to demarcate the land, but in the report filed by

the Advocate Commissioner on 01.12.2016, she specifically

stated that she took the assistance of Village Revenue Officer

and Government Surveyor in demarcating, identifying and also

allotting the land to the share of petitioner and the Advocate

Commissioner further observed that respondent No.1 was

present, but he did not object or protest at any point of time

during the course of commission proceedings but he refused to

sign on the report. Advocate Commissioner further stated that

point Nos. 1, 2, 4, 5 and 6 of the work memo filed by

Appellants-respondents were considered by her. She also got

prepared panchanama in the presence of villagers and the

boundaries were identified. She stated that point No.3 of the

work memo of the respondents is out of the scope of the warrant

issued to her. Advocate Commissioner filed panchanama dated

22.10.2016 and also a map prepared by Surveyor. Rough

sketch was prepared by her and the boundaries are as follows:

East: PWD Road(width - 50 feet)

West : Sy.No.166

North: Survey Number 167

South: Survey number 166

13. Patently, it is clear that as per the preliminary decree,

plaintiff is entitled for an extent of 55 guntas of land in

Sy.No.166, but the Advocate Commissioner identified and

demarcated the land in an extent of Ac.1-15 guntas in

Sy.No.166 and filed the report before the Trial Court. The Trial

Court also passed final decree by allotting Ac.1-15 guntas of

land to the petitioner-plaintiff which is contrary to the

preliminary decree passed by the said Court.

14. Learned counsel for the appellants-respondents further

raised the contention that no boundaries were mentioned in the

individual properties in each survey number mentioned in item

No.4 of the plaint 'A' schedule properties and he mainly

contended that boundaries were not mentioned either in the

plaint or in the preliminary decree and thus, the respondents

specifically requested the Advocate Commissioner to identify the

land with the help of Village Map but the Advocate

Commissioner failed to do so. The boundaries of the land to an

extent of Ac.4-20 guntas in Sy.No.166/AA was shown in the gift

settlement deed dated 17.11.1999 executed by defendant No.1

in favour of his wife defendant No.2. Further, learned counsel

for the appellants relied upon the citation reported in Nahar

Singh Vs. Harnak Singh and others3 in which it was held that "it

is well settled that unless the property in question for which the

relief has been sought for is identifiable, no decree can be

granted in respect of the same." He also relied upon another

citation reported in Pawan Kumar Dutt and another Vs.

Shakuntala Devi and others4, in which it was held that "when

there is no clear identity of the property agreed to be sold, the

Courts are not expected to pass a decree which is not capable of

enforcement in the courts of law."

15. The Trial Court has erred in not considering the principle

laid down in the above citations and passed final decree

contrary to the preliminary decree passed on 06.09.2007 as the

extent of land in the preliminary decree was only 55 guntas of

land, but the extent of land allotted under final decree in favour

of plaintiff was Ac.1-15 guntas in Sy.No.166. Therefore, the

order of the Trial Court is erroneous and is liable to be set aside.

1996 (6) SCC 699

2010 (15) SCC 601

16. In the result, the Appeal is allowed by setting aside the

final decree passed by XII Additional Chief Judge, City Civil

Court at Secunderabad on 10.12.2021 in I.A.No.366 of 2012 in

O.S.No.22 of 2001.

17. Pending miscellaneous applications, if any, shall stand

closed in the light of this final judgment.

____________________

P. SREE SUDHA, J

Date: 22.11.2022

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THE HON'BLE SMT. JUSTICE P. SREE SUDHA

C.C.C.A.No.13 of 2022

_____11.2022

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