Telangana High Court
Nunavath Laxi Rami vs Nunavath Hemla on 12 January, 2024
THE HONOURABLE SMT. JUSTICE M.G. PRIYADARSINI
A.S.No.319 OF 2023
JUDGMENT:
The present appeal suit is directed against the judgment
and decree dated 11.02.2022 in O.S.No.149 of 2015 on the file
of learned Agent to the Government, Bhadradri Kothagudem,
whereby the suit of the plaintiff for partition, was dismissed.
2. For the sake of convenience, hereinafter, the parties will
be referred as per their array before the learned Agent to the
Government, Bhadradri Kothagudem.
3. The brief facts of the case are that the sole plaintiff filed
suit against defendant Nos.1 to 6 for partition and separate
possession vide in O.S.No.149 of 2015, wherein it was alleged as
under:
a) The plaintiff is the daughter in law of Nunavath Somla,
who acquired several properties in and around Chandugonda
Mandal. Nunavath Somla was survived by Nunavath Lakya i.e.,
husband of the plaintiff, Nunavath Mali (defendant No.3),
Nunavath Vasram, Nunavath Hemla (defendant No.1), Nunavath
Hatchi (defendant No.2), who constitute joint family. As the 2 MGP, J as_319_2023
properties are undivided, the plaintiff is entitled for half share in
each schedule properties. Nunavath Somla died intestate in the
year 1992-93 without making any partition of the suit schedule
properties. Since the husband of the plaintiff was innocent,
Nunavath Hemla used to look after the affairs of managing the
agricultural landed properties of Nunavath Somla. The parties
belong to Schedule tribe Community of Lambada caste and
practiced Hindu rites and Customs, as such, they are governed
by Hindu Succession Act.
b) After the death of husband of the plaintiff, defendant No.1
behaved in a high handed manner and got manipulated the
revenue record by creating forged and fabricated documents by
including the shares of others, which were not given by him in
spite of several requests made by the family members. Taking
undue advantage of the innocence of husband of the plaintiff
and as his children were placed elsewhere due to employment,
defendant No.1 alienated the self acquired property of husband
of plaintiff i.e., plaint II schedule property in favour of defendant
Nos.4 and 6, who are enjoying the said property without any 3 MGP, J as_319_2023
right and valid title.
c) In spite of legal notice issued by Sri M.A.Majeed, Advocate
on 24.01.2015, no reply was given. The defendant No.1
managed the revenue officials and got entered his name in the
revenue records i.e., mee-seva pahanies without any enquiry
and played fraud by not disclosing the family members of late
Nunavath Somla. Defendant No.1 gave false impression that
Ac.2.00 guntas of land in sy.No.176/24 situated at
Ravikampadu Village of Chandrugonda Mandal is under the
possession of defendant No.1, however, on enquiry, the plaintiff
came to know in the month of May, 2014 that the property was
alienated in favour of defendant No.4. On enquiry by the
plaintiff with defendant Nos.4, to 6, it was revealed that there
were secret and clandestine understandings among defendant
Nos.1, 4 and others, as such the request of plaintiff for giving
back the property had ended in vain. Therefore, the plaintiff
prayed for partition of the suit schedule property into two equal
shares and allot one share to plaintiff, to grant mesne profits as
defendant No.1 is cultivating commercial crops and grant 4 MGP, J as_319_2023
recovery of possession against defendant Nos.4 and 6 in respect
of schedule property II.
4. The defendants remained ex parte before the trial Court.
5. Ex.A1 legal notice issued by the plaintiff to defendants
was marked before the trial Court.
6. After considering the submissions of learned counsel for
the plaintiff, the trial Court has dismissed the suit of the
plaintiff. Aggrieved by the same, the plaintiff preferred the
present appeal.
7. Heard the learned counsel for the appellant/plaintiff and
perused the record including the grounds of appeal. Notices
were served on defendant Nos.1, 3 to 5. Notice to respondent
No.6 was refused, as such it is considered as deemed service as
per the provisions of General Clauses Act. Since notice to
respondent No.2 was not served, on the application filed by the
plaintiff, substituted service was ordered in Eenadu Telugu
Daily Newspaper. In spite of service of notice, none appeared
on behalf of the defendants, as such, the arguments on the 5 MGP, J as_319_2023
part of defendants are treated as 'nil'.
8. The first and foremost contention of the learned counsel
for the appellant/plaintiff is that the trial Court failed to
observe that pahanies, which were filed by the plaintiff were
certified copies and the same was also stated in list of
documents filed along with the plaint in suit but the trial Court
considered the same as Photostat copies. As seen from the
impugned judgment, the trial Court in an unnumbered para
after second para observed that the plaintiff has filed Xerox
copy of pahanies but originals or certified copies were not filed.
A perusal of the list of documents enclosed to the plaint
discloses that the plaintiff has mentioned certified copies of
pahanies from 1958-59 to 2014-15 issued by Tahsildar,
Chandrugonda Mandal and original market value certified
issued by Sub-Registrar, Kothagudem. Thus, the trial Court
was under the wrong impression that the plaintiff has filed
Photostat copies of the documents. Perhaps, that might be the
reason as to why only Ex.A1 legal notice was marked in the
suit. Even otherwise, though the trial Court has passed certain 6 MGP, J as_319_2023
remarks in the impugned judgment about the unmarked
pahanies for the years 1974-75, 1980-81, 1981-82, 1985-86,
1990-91, 1995-96, 2001-02, 2002-03, 2007-08, 2011-12,
2012-13, 2013-14 and 2015-16, there is no whisper about the
pahanies for the years 1958-59, 2014-15 issued by Tahsildar,
Chandrugonda Mandal and market value certificate, dated
12.07.2015 issued by the Sub-Registrar, Kothagudem, while
arriving to a conclusion, for the reasons best known.
9. The other contention of the learned counsel for the
appellant is that the trial Court has passed the impugned
judgment without framing an issue. In Ramesh Chand
Ardawatiya v. Anil Panjwani 1 the Apex Court observed as under:
"In a case which has proceeded ex-parte the Court is not bound to frame issues under Order XIV and deliver the judgment on every issue as required by Order XX Rule 5. Yet the Trial Court would scrutinize the available pleadings and documents, consider the evidence adduced, and would do well to frame the 'point for determination' and proceed to construct the ex-parte judgment dealing with the points at issue one by one."
10. In view of the principle laid down in the above said
citation, though it is needless to frame issues in an ex-parte
judgment, yet the trial Court can frame a point for
1 (2003) 7 SCC 350 7 MGP, J as_319_2023
determination and proceed to pass the judgment dealing with
the points one by one.
11. In view of the above facts and circumstances, this Court
is of the opinion that the judgment passed by the trial Court is
not in proper perspective and thus, it is a fit case to dispose of
the appeal by remanding back the matter to the trial Court to
adjudicate the matter afresh by giving opportunity to both the
sides.
12. In the result, the appeal suit is disposed of by remanding
back the matter i.e., O.S.No.149 of 2015 on the file of learned
Agent to the Government, Bhadradri Kothagudem to the trial
Court to adjudicate the matter afresh in accordance with law.
As a sequel, pending miscellaneous applications, if any,
shall stand closed.
_______________________________ JUSTICE M.G. PRIYADARSINI Date: 12.01.2024 AS
