A. Tulasamma vs Mirdodichandrakala
2023 Latest Caselaw 1539 Tel

          THE HON'BLE SRI JUSTICE T. VINOD KUMAR
                            AND
           THE HON'BLE SMT. JUSTICE P.SREE SUDHA

                        C.M.A.No.60 of 2023

JUDGMENT: (per Hon'ble Smt. Justice P.Sree Sudha)

       This Civil Miscellaneous Appeal is filed, under Order 43 Rule 1

read with Section 151 C.P.C., against the order passed by the learned

XXV-Additional Chief Judge, City Civil Court, Hyderabad, in I.A.No.448

of 2020 in O.S.No.73 of 2020 dated 09.01.2023.


2.     Brief facts of the case are as under:


       Respondent No.1/plaintiff herein filed the aforesaid O.S.No.73

of 2020 against the appellants/defendants herein for partition and

separate possession of the suit schedule properties. During the

pendency of the proceedings, the 1st respondent/plaintiff filed the

present I.A.No.448 of 2020, under Order 40 Rule 1 C.P.C., seeking to

appoint a Receiver to collect the rents of Rs.3,50,000/- from suit

schedule 'A' property till disposal of the main suit. The said application

was opposed by appellants/defendants by filing counter, inter alia,

contending that schedule 'A, C and D' properties were not purchased

by their father late Chinna Ramulu and it is the 1st appellant who

acquired those properties.

3. On considering the entire material available on record, the trial

Court, by order dated 09.01.2023, allowed the said application

directing the 2nd appellant herein to collect rents from the tenants of

petition 'A' schedule property every month and to deposit the same to

the credit of the suit once in every three months till disposal of the

suit.

4. Aggrieved by the aforesaid order dated 09.01.2023, the present

C.M.A. has been filed by the appellants/defendants contending that the

trial Court has lost sight of the fact that admittedly schedule 'A, C and

D' properties stand in the name of the 1st appellant/1st defendant. It is

further contended that the trial Court failed to consider the clear legal

position placed before it that a presumption of this nature cannot be

drawn in case of a property standing in the name of a female member

of a joint family unless proved by conclusive evidence in that respect,

which the 1st respondent/plaintiff has failed to do so. Therefore,

requested this Court to set aside the impugned order as it is erroneous

and contrary to the facts and circumstances of the case.

5. Heard learned Counsel appearing on either side and perused the

entire material available on record.

6. Admittedly, the 1st respondent/plaintiff and appellants 2 to 4 herein

are children of appellant No.1 i.e., A.Tulasamma and late Chinna Ramulu.

The 1st respondent/plaintiff herein has filed the aforesaid Suit being

O.S.No.73 of 2020 against the appellants/defendants herein for partition and

separate possession of plaint 'A to G' schedule properties. It is represented

that the parties are getting rents to a tune of Rs.3,50,000/- per month from

petition 'A' schedule property. Since the appellants/defendants were in

physical possession of the property and as the 1st respondent/plaintiff and

appellants/defendants are equally entitled for the same, the trial Court,

instead of appointing a Receiver, directed appellant No.2/defendant No.2 to

collect rents from the tenants of petition 'A' schedule property and to deposit

the same to the credit of the suit once in every three months till disposal of

the suit.

7. Having regard to the aforesaid discussion, this Court, without going

into the merits of the case, finds that it is just and reasonable to modify the

impugned order of the trial Court dated 09.01.2023 as under:

"Appellant No.2/Defendant No.2 is directed to collect rents of

Rs.3,50,000/- from the tenants in respect of petition 'A' schedule property

every month and to deposit only a sum of Rs.70,000/-, out of Rs.3,50,000/-,

being 1/5th share of the 1st respondent/plaintiff, to the credit of the suit once

in every three months from the date of this order till disposal of the main

suit. Appellants 1 to 4/defendants are entitled for their share of 1/5th each

from out of Rs.3,50,000/- and they are permitted to receive the said amount

every month."

8. In the result, the C.M.A is disposed of and the impugned order dated

09.01.2023 passed by the trial Court in I.A.No.448 of 2020 in O.S.No.73 of

2020 is modified to the extent indicated above.

9. Pending miscellaneous petitions, if any, shall stand closed in the light

of this final order. No order as to costs.

__________________ T. VINOD KUMAR, J

________________ P.SREE SUDHA, J

06.04.2023 Gsn.