M. Usha Alias K. Usha vs M.V. Hanumantha Rao
2023 Latest Caselaw 1308 Tel

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                                                                    CRP 2269 OF 2022


                  HON'BLE SRI JUSTICE P.NAVEEN RAO

              CIVIL REVISION PETITION NO.2269 OF 2022

ORDER :

Heard Sri Sunil B Ganu, learned senior counsel appearing for

petitioner and Sri G.U.R.C. Prasad, learned counsel for respondents.

2. Petitioner is plaintiff in O.S. No. 126 of 1993 on the file of the

Court of III Additional Senior Civil Judge, City Civil Court, Secunderabad

praying to grant decree of partition of properties mentioned in the plaint

schedules i.e., Schedule 'A' movables such as gold, silver and general

items; Schedule 'B' premises bearing No. 76, Road No. 2, West

Maredpally, Secunderabad; Schedule 'C' proceeds from the sale of

house, a flat, car, value of gold worth Rs.5 lakhs and rents from another

house. As a coparcener, the plaintiff claimed half share in all the above

properties. Petitioner also filed O.S. No. 225 of 1993 praying to grant

decree of perpetual injunction to restrain the defendants in O.S No. 126

of 1993 and some others from interfering with her possession over a

portion of H No. 76, West Maredpally, Secunderabad which is plaint 'B'

schedule property in O.S. No. 126 of 1993.

3. By common judgment dated 22.3.2004 the trial Court

dismissed both the suits. In the partition suit, the trial Court held that

the plaintiff is not entitled to any relief. Basing upon that finding, it held

that the plaintiff cannot be granted any injunction in the other suit as 2 PNRJ CRP 2269 OF 2022

well. Aggrieved by the dismissal of O.S. No. 126 of 1993 petitioner filed

CCCA No. 226 of 2004. This Hon'ble Court partly allowed the appeal.

4. The decree reads as under:

"1. That plaintiff shall be entitled to workout her claim for her 1/6th share in the house property against her sisters, the second defendant and the vendees under the sale deed dated 10.12.2004 in final decree proceedings and the amount of Rs.10lakhs shall be given credit while determining the value of the plaintiff's 1/6th share;

2. That the Executing Court shall in accordance with law pass final orders in execution proceedings;

3. That the two sisters of the plaintiff i.e., third defendant and fourth respondent herein shall also be entitled to the same relief which is granted to plaintiff;

4. That the plaintiff and her two sisters being coparceners will be liable for all family debts contracted by her father for family necessities only to the extent of the shares in the house properties got by them;

5. That the first defendant having already alienated his half share under Ex.B 21 settlement deed in favour of the second defendant, his daughters i.e., plaintiff and her two sisters cannot claim any right to the said half share even though the first defendant is dead;

6. That save as aforesaid the decree of the lower court shall stand confirmed in all other aspects".

5. In pursuant to judgment and decree dated 5.6.2012 in

CCCA No. 226 of 2004 of High Court of A.P, the petitioner filed I A No. 10

of 2018 in O.S. No. 126 of 1993 for passing final decree.

6. Facts disclose that respondent no.5 and 6 purchased the 'B'

schedule property in the year 2004. Respondent no.8 purchased the

same from respondents 5 and 6 in the year 2008. In the year 2014, the

respondent no.8 leased out the schedule 'B' property vide registered lease

deed to M/s Johns Grammar School for a period of 10 years i.e., till 3 PNRJ CRP 2269 OF 2022

2024. The lease amount is Rs.14,30,000/- per month. Claiming that as

per the decree dated 5.6.2012 in CCCA No. 226 of 2004 as 1/6th share in

the 'B' Schedule house property belongs to her, she is entitled to 1/6th

share in the rent already received by respondent no.8 in schedule 'B'

property from 1.12.2014 till date and also the rents which would be

received, being Rs.2,38,334/- per month petitioner filed I A No.345 of

2021 in I A No. 10 of 2018. She has prayed to direct respondent no.8 to

pay arrears of petitioner's share of rent from 1.12.2014 and continue to

pay.

7. On considering the respective submissions, trial Court

dismissed the Interlocutory Application. The Trial Court held that

equities can be worked out in the final decree proceedings. Trial Court

observed that respondent no.8 is a subsequent purchaser of 'B' schedule

property after permission accorded by this Court and being lawful

purchaser he has leased out the 'B' schedule property to an educational

society. Therefore, respondent no.8 is not responsible to the

petitioner/plaintiff for payment of arrears of rent or the future rents.

Trial Court held that the petitioner has no right to seek deposit of rents

in her favour in respect of 'B' schedule property already alienated with

her knowledge vide orders in CCCA No. 2226 of 2004 and the alienation

was not challenged. Aggrieved thereby, this revision is filed.

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                                                                 CRP 2269 OF 2022

8. Learned senior counsel appearing for petitioner contended

that as held by this Court in CCCA No. 226 of 2004 petitioner is entitled

to 1/6th share of schedule 'B' property. In view thereof, she is entitled to

1/6th share in the rent paid by the tenant to the schedule 'B' property.

Whereas, merely on the ground that final decree proceedings are pending

she cannot be denied of her entitlement. Learned senior counsel relied

on Section 2 (12) of Civil Procedure Code.

9. Per contra, according to learned counsel for 8th respondent,

Section 2 (12) of CPC has no application as property is not in wrongful

possession. The schedule 'B' property was purchased by 8th respondent

and is holding valid title. As owner of the property, he is entitled to lease

out the property and he alone is entitled to get the rental amount. He

would submit that until final decree proceedings are concluded,

petitioner cannot set up any claim. This is also clear from reading of

judgment of this Court in CCCA No. 226 of 2004.

10. While considering this issue, trial Court erred in observing

that respondent no.8 is not responsible to petitioner/plaintiff for

payment of arrears of rent or future rents and that petitioner is not

entitled to claim rent on the ground that the property was already

alienated with her knowledge and the orders passed by the Court in

CCCA No. 226 of 2004 were not challenged by the petitioner. This

observation of the trial Court based on which the prayer is rejected, is 5 PNRJ CRP 2269 OF 2022

contrary to the findings recorded by the Division Bench in paragraph 51

in CCCA No. 226 of 2004.

11. It is not in dispute that pursuant to the interim orders of

this Court in CMP Nos. 11933 and 11734 of 2004 second defendant sold

the house property by way of registered sale deed dated 10.12.2004 in

favour of three persons. The order of this Court dated 9.11.2004 made it

very clear that any such sale would be subject to the result of the appeal.

The order was also subject to the condition that the second defendant

should deposit Rs.30,00,000/- to the credit of the suit. 8th respondent

purchased the property from respondents 5 and 6. The Division Bench

held that the order dated 9.11.2004 made in two interlocutory

applications was clear that any sale has to be subject to the result of the

appeal. Thus, as held by the Division Bench of this Court in the final

judgment the sale deed is clearly hit by rule of lis pendens and second

defendant vendor and third party vendees cannot defeat the rights of the

plaintiff and her two sisters with regard to other half share. The Division

Bench holds that petitioner is entitled to 1/6th share in the schedule

house property.

12. The claim for mesne profits and damages was considered in

paragraphs 52 to 54 wherein Division Bench observed that as on the

date of decision in the appeal, no evidence was brought on record to

show that subject house was leased out. As per evidence on record, the

Court noticed that plaintiff, her two sisters and mother were living in the 6 PNRJ CRP 2269 OF 2022

house and no other material was shown on any portion of the house

being leased. Holding so, the claim was rejected. Thus, the Division

Bench refused to grant mesne profits or damages on the ground that by

then the property was not leased out.

13. Purchase of the suit schedule property by 8th respondent

was pending appeal and was subject to the out come of the appeal.

Admittedly, the schedule property in which 1/6th share of the petitioner

is crystallized is leased out by 8th respondent. Therefore, the petitioner is

entitled to share in the rent amount secured by the 8th respondent.

Merely, because final decree proceedings are pending, is no ground to

deny the share of the petitioner in the rental amount on suit schedule

property. The trial Court erred in not appreciating these aspects.

14. The petitioner is entitled to 1/6th share of the monthly rent

8th respondent is securing from 1.12.2014. What exactly the 1/6th share

would come to is a matter, which requires consideration in final decree

proceedings. Suffice to note that as respondent no. 8 is getting rent at

the rate of Rs.14,30,000/- per month, 1/6th share of which comes to

Rs.2,38,234/-. Therefore, the 8th respondent is directed to deposit

arrears of rent from 1.12.2014 in the ratio of 1/6 till February, 2023

within eight weeks from the date of receipt of copy of this order and

continue to deposit 1/6th share of the monthly rent by 10th of every

succeeding month.

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      16.   Accordingly, the revision is allowed.        No Costs. Pending

miscellaneous petitions, if any, shall stand closed.

                                                       __________________
                                                       P.NAVEEN RAO,J
Date :17-03-2023
Tvk
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                                           CRP 2269 OF 2022




   HON'BLE SRI JUSTICE P.NAVEEN RAO




CIVIL REVISION PETITION NO. 2269 OF 2022


             Date: 17.3.2023