Telangana High Court
P.Narsing Rao vs P.Raju on 5 March, 2024
THE HONOURABLE SMT. JUSTICE K. SUJANA
C.C.C.A.No.48 OF 2010
ORDER:
This appeal is filed by the appellant aggrieved by the
judgment in O.S.No.333 of 2001, dated 03.11.2005 on the file
of XIII Additional Senior Civil Judge (FTC), City Civil Court at
Secunderabad.
2. O.S.No.333 of 2001 is filed by the plaintiff for partition of
two equal shares and also for perpetual injunction restraining
the defendants from interfering with the peaceful possession.
The plaint is filed stating that the plaintiff is the elder brother
of the 1st defendant and younger brother of the defendant
Nos.2 and 3. The 4th defendant is elder sister of the plaintiff.
Defendant Nos. 5 to 8 are the legal heirs of deceased sister
Smt.J.Varalaxmi. Defendant No.9 is the father of the plaintiff.
The mother of the plaintiff namely P.Satyamma acquired the
property bearing No.6-4-41, plot no.142 measuring to an
extent of 184 square yards situated at Bholakpur,
Secunderabad by virtue of registered sale deed dated
20.8.1963 from Smt. Salemma Sarvesha and it is purchased
out of her self-earnings and she executed a registered will on
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16.9.1994 bequeathing the suit property in favour of plaintiff
and 1st defendant equally. The said Satyamma died on
18.8.1999 leaving behind her and defendant Nos.1 to 4 as
legal heirs. It is also clearly mentioned in the will deed dated
16.9.1994 that the 2nd and 3rd defendants have no share in the
suit property including her daughters namely Laxmi Bai (D4),
J.Varalaxmi.
3. The father of the plaintiff i.e. 9th defendant has executed
another will in favour of defendant Nos.2 to 4 in respect of plot
No.6 covered by survey No.594 measuring to an extent of 398
square yards and plot Nos. 5 and 7 covered by survey No.594
measuring to an extent of 622 square yards situated at
Ghatkesar, Ranga Reddy District. The said property was
bequeathed in favour of defendant Nos.2 to 4 with absolute
rights by virtue of will dated 16.09.1994. The 4th defendant
died during the year 1995 leaving behind her husband and
children as legal heirs, who are defendant Nos.5 to 8. The
parents of the plaintiff and defendant Nos.1 to 4 have
bequeathed their properties respectively among all the children
without any disputes by virtue of the said two wills. Thus the
plaintiff and the 1st defendant became the absolute owners of
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the suit property with equal rights by virtue of registered will
dated 16.09.1994. The plaintiff and the 1st defendant
performed funeral of their mother on 29.08.1999 and
defendant Nos. 2 and 3 also attended the said funeral and
disputed the will executed by the mother of the plaintiff and 1st
defendant bequeathing the suit property in favour of plaintiff
and 1st defendant.
4. The plaintiff filed a suit vide O.S.No.120 of 2000 on the
file of XI Junior Civil Judge, City Civil Court, Secunderabad
against defendant Nos.2 and 3 seeking relief of perpetual
injunction restraining them from interfering with plaintiff's
peaceful possession and enjoyment over the suit property and
he also filed I.A.No.224 of 2000 in O.S.No.120 of 2000 seeking
the relief of temporary injunction against defendant Nos. 2 and
3 which was dismissed on the ground that defendant Nos.2
and 3 are also legal heirs and they are in joint possession of
the suit property. As such the plaintiff has withdrawn the suit
with the leave of the Court to enable him to file suit for
declaration of the share in the suit property in pursuance of
the will dated 16.09.1994. The suit property is to be
partitioned by metes and bounds in two equal shares among
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the plaintiff and the 1st defendant. The plaintiff and the 1st
defendant are alone in the joint possession of the suit
property. The defendants No.2 to 4 are in possession of plot
Nos.4, 6 and 7 to an extent of 922 square yards covered by
survey No.595 situated at Ghatkesar Village and Mandal,
Ranga Reddy District by virtue of will dated 16.09.1994, which
was executed by defendant No.9. As such defendant Nos.2 and
4 have no right to set up any claim in the suit property.
5. The 1st defendant filed written statement contending
inter-alia that the suit is not maintainable either in law or on
facts and he did not dispute the relationship between himself,
plaintiff and other defendants. The 1st defendant admitted that
deceased P.Satyamma is no other than his mother and mother
of the plaintiff and he admitted that will deed is executed by
her in his favour and he also admitted defendant Nos.2 to 9
have no manner of right to claim any share in the suit property
and also admitted the execution of will by the 9th defendant in
favour of defendant Nos.2 to 4 in respect of plot Nos.5, 6 and 7
measuring to an extent of 922 square yards covered by survey
No.594 situated at Ghatkesar on 16.09.1994. He also admitted
the performance of funerals by plaintiff and himself and also
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the earlier suit in O.S.No.120 of 2000 on the file of XI Junior
Civil Judge, City Civil Court, Secunderabad was also not
disputed. It is further submitted that himself and plaintiff are
in joint possession of the suit property and defendant Nos.2 to
4 have no manner of right, title or interest over the same.
Defendant Nos.2 to 9 were set exparte.
6. Basing on the pleadings the trial court framed two
issues:
1. Whether the plaintiff is entitled for half share in the
suit schedule property?
2. Whether the plaintiff is entitled for perpetual
injunction of the suit schedule property?
7. To prove the same on behalf of plaintiff, PW1 was
examined and Exs.A1 to A7 were marked. On behalf of D1,
DW1 was examined. No documents were filed on behalf of
defendants. Considering the evidence on record the suit is
decreed allotting equal shares to the plaintiff and defendant
No.1.
8. These appellants have filed I.A.No.15 of 2005 in
O.S.No.333 of 2001 praying the Court to set aside the exparte
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order vide Order IX Rule 7 and the same is ordered by the trial
Court allowing the petition on payment of cost of Rs.500/-
payable on or before 16.3.2005, failing which the petition shall
stand dismissed. On 16.3.2005, this appellant not paid cost
and as such, the I.A was dismissed on the same day i.e. on
16.03.2005 and the suit was posted to 25.3.2005 for trial and
it was posted for defendant evidence on 19.4.2005. Meanwhile
Defendant No.3 filed another I.A. No. 207 of 2005 for extension
of time for payment of cost imposed in I.A.No.15 of 2005 and
the said I.A. was also dismissed on merits. No appeal or
revision is filed against the said order. Later he also filed
another I.A.No.402 of 2005 requesting the Court to reopen the
matter as he is going to file revision in the High Court.
I.A.No.402 of 2005 was also dismissed on merits. Later the
suit was decreed on 03.11.2005 and a preliminary decree was
passed.
9. Thereafter this appellant filed I.A.S.R.No.3537 of 2005
under Order IX Rule 13 to set aside the exparte decree and the
same was returned on certain office objections and against the
said return they filed C.R.P.No.373 of 2007, challenging the
order in I.A.S.R.No.3537 of 2005 and on 27.02.2009 the same
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was dismissed by this Court, observing that it is not known as
to whether the said conditional order has been complied with
or not. The petitioner ought to have complied with the
objections raised in the Court below. Instead of choosing the
said mode of compliance, the petitioner has directly
approached this Court. Therefore the approach of the
petitioner is nothing but a premature one and apart from that,
it amounts to abuse of process of Courts. As such they filed
this present appeal against the judgment of trial Court in
O.S.No.333 of 2001 praying the Court to set aside the
judgment of the trial Court in O.S.No.333 of 2001.
10. Heard Smt. B.V.Aparna Lakshmi, learned counsel for the
petitioner and Sri N.Ashok Kumar, learned counsel for the
respondents.
11. The learned counsel for the appellant submitted that the
trial Court without considering the applications filed by the
appellant herein under Order IX Rule 7 and under Order IX
Rule 13 to set aside exparte order and had hastily dismissed
the said petitions and further submitted that the judgment of
trial court is not in accordance with law. The respondent
herein who is the plaintiff in the suit not proved the will and
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without examining the attestor, simply the trial court declared
that it is proved and granted equal shares to the plaintiff and
defendant No.9 in the suit, which is not in accordance with
law. As such, said decree is liable to be set aside.
12. On the other hand the learned Counsel for the
respondents would submit that already final decree
proceedings are issued, commissioner is also appointed vide
I.A.No.684 of 2006. He also filed the report and at that stage
he filed I.A.No.175 of 2009 seeking condonation of delay of
1217 days under section 5 of limitation Act in resubmitting the
I.A.S.R.No.3537 of 2005 and the said I.A. was also dismissed
on merits and against the same, they filed Civil Revision
Petition and the delay was condoned observing that not to
proceed with the further steps. The main contention of the
appellant is that as the trial court already passed final decree,
the appellant cannot challenge the preliminary decree and the
appellant has to challenge the final decree. Therefore the
appeal itself is not maintainable.
13. Now the point for consideration is whether appeal
against the preliminary decree is maintainable when there is a
final decree passed by the Court?
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14. As seen from the record there is a litigation from 2001
the suit is filed in the year 2001, wherein the appellant was set
exparte and appellant filed set aside petition which is ordered
on a condition that the condition was not complied by this
appellant and the suit was decreed and preliminary decree was
passed and filed petition under Order IX Rule 13 which was
rejected stating that he has not complied with conditions in
I.A.No.15 of 2005 the said rejection is also challenged in C.R.P.
and C.R.P. is also dismissed which shows that the attitude of
the petitioner approaching the court was not diligent and the
suit is of the year 2001 and I.A. is of the year 2005. He was
not diligent towards the proceedings and simply filed this
appeal after passing the final decree in this court vide Civil
Revision Petition in C.C.C.A.Sr.No.3215 of 2009. This Court
observed that pending further orders, no further steps shall be
taken until further orders, which shall be open to both the
parties to file an application if they want any relief. By
condoning the delay it is observed that the petitioner was
trying to prosecute the case from the inception, as such the
delay was condoned appeal was registered whereas, the final
decree proceedings were issued in the year 2009 and appeal is
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filed in the year 2010, challenging the preliminary decree. It is
the contention of respondent that when the final decree
proceedings were already issued it is not permissible and they
cannot challenge the same and he has to challenge the final
decree as per the settled legal principles, whereas the law is
they cannot challenge the final decree without challenging the
preliminary decree as per the judgment in Venkatrao Anantdeo
joshi Vs. Sau. Malatibai 1, wherein it was held that non
challenge to a preliminary decree precludes a party from
disputing its correctness in any appeal which may be preferred
from final decree, as such there is no force in the contention of
counsel for the respondent. Further in the present case, this
appellant is trying to contest the case by filing petitions,
whereas he is not diligent in complying the conditions of the
Court. Further this Court in C.C.C.A.M.P.No. 443 of 2009 in
C.C.C.A.(SR) No.3215 of 2009 also observed the same. Further
present appeal is also dismissed for default and again restored.
In view of the above, as the appellant is trying to contest the
case from 2001 itself this appeal is allowed setting aside the
judgment of the trial Court in O.S.No.333 of 2001, dated
(2003) 1 SCC 722
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03.11.2005, with a direction to give opportunity to this
appellant to participate in the trial, on payment of cost of
Rs.10,000/- to the respondent herein within 15 days from the
date of the order, otherwise the appeal stands dismissed.
15. Accordingly, this appeal is allowed. There shall be no
order as to costs.
16. Pending Miscellaneous Applications, if any, shall stand
closed.
______________
K.SUJANA, J
Date: 05.02.2024
BV
