Telangana High Court
M Vijayalakshmi vs M Satyamma on 31 October, 2023
Bench: G.Radha Rani
THE HONOURABLE DR.JUSTICE G.RADHA RANI
APPEAL SUIT No.141 of 2019
JUDGMENT:
This appeal is filed by the appellant - plaintiff aggrieved by the
judgment and decree passed in O.S.No.621 of 2017 dated 26.11.2018 by the
II Additional Senior Civil Judge, Ranga Reddy District.
2. The plaintiff filed the suit for partition and separate possession of the
suit schedule property entitling the plaintiff and defendants 1 to 4 one-sixth
share each and to defendants 5 to 7 one-sixth share jointly and to pass
mandatory injunction to demolish the existing construction of first and
second floors in the suit property. The plaintiff contended that she along with
the defendants 2 to 4 and the father of the defendants 6 and 7 by name late
Ravinder were all issues of defendant No.1, and their father M.Sailoo.
M.Sailoo was an employee in BHEL and he was allotted a residential house
bearing No.1217 constructed with RCC in 223.70 square yards situated at
BHEL, MIG Colony, Nallagandla Village, Serilingampally Mandal, Ranga
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Reddy District. Their father M.Sailoo as well as their brother Ravinder died
and the plaintiff as well as defendants 1 to 4 and the wife and children of
Ravinder succeeded to the suit schedule property and were joint owners of
the same. After the death of M.Sailoo, their mother - defendant No.1
managed the said property as elder of the joint family. Till date, the rents
were divided among the plaintiff and the defendants 1 to 7 as per their ratio.
The defendants 1 to 7 were not giving share in the rent of the suit schedule
house for the past one year, due to which the plaintiff asked for her share in
the rent. But the defendants 1 to 7 did not respond, on which the plaintiff
demanded for partition and separate possession. The plaintiff further
submitted that she came to know that the defendants in order to defeat her
legal share, created a registered sale deed vide document No.1921 of 2009 on
14.09.2009 in the Sub-Registrar Office, Serilingampally in favour of
defendant No.8 in respect of the said house and in turn the defendant No.8
created a registered sale deed vide document No.3311 of 2010 on 20.10.2010
in favour of defendants 9 and 10, showing the same as open place.
Thereafter, the defendants 9 and 10 constructed two floors of RCC building
in the suit schedule property without her knowledge, as she was residing with
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her husband at Moosapet, Hyderabad. Immediately, after knowing about the
said activities of defendants 1 to 8, the plaintiff obtained certified copies of
the said documents and filed the suit for partition in the year 2017.
3. Summons were issued to the defendants and all the defendants
remained ex-parte.
4. The plaintiff examined herself as PW.1 and got examined another
witness by name Y.Shivamma as PW.2 and got marked Exs.A1 to A5 on her
behalf.
5. On considering the oral and documentary evidence adduced by the
plaintiff, the learned II Additional Senior Civil Judge, Ranga Reddy District
observed that though the plaintiff stated that the suit schedule property was
allotted to her father, failed to file the allotment letter and failed to file the
conveyance deed bearing document No.6141 of 2007 dated 18.04.2007.
Though, the plaintiff contended that she was paid rents up to the year 2016,
the sale deed document No.3311 of 2010 dated 20.10.2010 marked under
Ex.A5 would disclose that the defendants 9 and 10 constructed a two-
storeyed building over the property. There was no explanation from the
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plaintiff as to how she was in joint possession of the said property and no
explanation from her as to why she kept quiet till the construction of two-
storeyed building. After the property was sold in the year 2010, eight years
later the plaintiff filed the suit and that too without seeking the relief of
cancellation of the sale deeds of the defendants 8 to 10 and observing thus,
dismissed the suit.
6. Aggrieved by the said dismissal, the plaintiff preferred this appeal
contending that the court below ought to have seen that the suit schedule
property was allotted in the name of the father of the appellant on 30.07.1990
vide allotment letter No. BHEL/MIG/14/90. The relevant house documents
were not with her at the time of filing the suit. She obtained certified copies
and handed over to her counsel. But, by over-sight, her counsel failed to file
the same. For non-filing of the said documents, the court below wrongly
came to the conclusion and dismissed the suit. If an opportunity was given to
her for filing the deed of conveyance dated 18.04.2007 vide document
No.6141 of 2007, she is ready to file the same. The deed of conveyance was
executed in favour of the respondent No.1 - defendant No.1,
W/o. late M.Sailoo. In the conveyance deed, it was specifically mentioned
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that the transferee was a nominee of BHEL Employee, who worked in the
BHEL Company, Ramachandrapuram, Hyderabad-32. The appellant was
having a share in her father's property, she being a daughter. The mother of
the appellant without any manner of right executed the sale deed in favour of
the respondent No.8, depriving the legitimate right of the appellant and other
children, without allotting the share of the appellant, as such prayed to set
aside the judgment and decree passed by the trial court in O.S.No.621 of
2017 dated 26.11.2018.
7. Heard the learned counsel for the appellant.
8. Notices were issued to the respondents. None appeared for respondents
1 to 7, though notices were served on them. The notices sent to the
respondents 8 to 10 were returned un-served with an endorsement "parties
left".
9. The learned counsel for the appellant submitted that if an opportunity is
given to the appellant, the appellant would file all the necessary documents
like the allotment letter issued to her father dated 13.07.1990, the conveyance
deed executed in favour of respondent No.1, the wife of late M.Sailoo, the
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Office Order dated 27.09.1993, which would show the death of the father of
the appellant, the family member certificate, wherein the name of the
appellant - plaintiff was also recorded and other relevant documents. The
above documents could not be placed before the trial court. If the documents
were placed before the trial court, the judgment would have been otherwise,
as the plaintiff was also entitled for a share in the suit schedule property and
prayed to remand the matter to the trial court to pass the judgment in
accordance with law after considering all the above documents.
10. Considering the submission of the learned counsel for the appellant, it
is considered fit to remand the matter to the trial court to pass the judgment
on considering all the above documents after issuing a notice once again to
the respondents 8 to 10, particularly the purchasers who constructed the
building in the above property.
11. In the result, the Appeal Suit is disposed of remanding the matter to the
trial court to consider the documents and to pass the judgment in accordance
with law after issuing notices to the respondents 8 to 10 afresh in accordance
with law within a period of six (06) months or at the earliest. No order as to
costs.
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As a sequel, miscellaneous applications pending in this appeal, if any,
shall stand closed.
____________________
Dr. G.RADHA RANI, J
Date: 31st October, 2023
Nsk.
