P Vasumathi Vyshaka Reddy And 6 Others vs Syed Ahmedulla Hussaini And 7 Others
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Telangana High Court

P Vasumathi Vyshaka Reddy And 6 Others vs Syed Ahmedulla Hussaini And 7 Others on 15 April, 2025

      THE HONOURABLE SMT JUSTICE K. SUJANA
      APPEAL SUIT Nos.1631 OF 2018 & 34 OF 2019


COMMON JUDGMENT:

Since the lis involved in these appeals are same, they

were heard together and are being disposed of by way of this

common judgment.

2. The appellants in these appeals are third parties to

the suit filed by respondents/plaintiffs, against the

respondents/defendants vide OS.No.51 of 2005 on the file of

the III Additional District Judge, Rangareddy District, at

LB.Nagar, Hyderabad, seeking partition and separate

possession of their share in the plaint schedule property.

The said suit was decreed with costs vide judgment dated

15.11.2010 and directing the partition of plaint schedule

properties in two equal shares and allotment of one such

share to the plaintiffs and the other share to the defendants.

Aggrieved thereby, these appeals are filed contending that

they are necessary parties to the said suit.

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3. The brief facts of the cases are that the plaintiffs, who

are the sons of Syed Naseeruddin Hussaini, are seeking

partition of the properties that originally belonged to their

grandfather Late Syed Ahmadullah Hussaini.

Late Syed Ahmadullah Hussaini passed away on

01.01.1965 leaving behind several

properties, including agricultural lands in

Sy.Nos.1, 2, 35 to 37, 96, 102, 105, 106, and 145.

After his death, his two sons, Syed Naseeruddin Hussaini

and Syed Pasha Hussaini, partitioned the properties among

themselves. The said partition was formalized in a written

document dated 15.10.1966 and as per this partition,

Syed Pasha Hussaini received properties in

Sy.Nos.35, 37, 96, 102, 105, and 106,

while Syed Naseeruddin Hussaini received properties in

Sy.Nos.1, 2, 36, and 145. One of the properties, a mango

and tamarind garden in Sy.No.34, was kept joint, with the

understanding that the sons would enjoy its fruits

alternately. This arrangement continued until the death of

Syed Naseeruddin Hussaini on 30.04.1993.

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4. After the death of Syed Naseeruddin Hussaini, the

plaintiffs demanded partition from the defendants, D1 and

D2, who are the wife and son of Syed Pasha Hussaini.

However, D1 and D2 refused to partition of the properties

and instead attempted to sell them. The plaintiffs learned

that D1 and D2 had entered into an agreement of sale with

D3 in respect of the schedule property. In response, the

plaintiffs issued a legal notice to D1 and D2 on

17.01.2005. As the dispute remained unresolved, the

plaintiffs filed the said suit for partition, seeking to divide

the properties among the legal heirs of

Late Syed Ahmadullah Hussaini. Being aggrieved by

partition of suit between the plaintiffs and defendants, the

appellants filed these appeals challenging the impugned

judgment dated 15.11.2010 directing the partition of plaint

schedule properties in two equal shares and allotment of

one such share to the plaintiffs and the other share to the

defendants. Hence, these appeals.

5. Heard Sri Srinivas Velagapudi, learned counsel for

appellants, Sri RA.Chary, and Sri AK.Narsimha Rao, learned

counsel for respondents.

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6. Learned counsel for appellants submitted that the

trial Court committed grave error by not considering the

true nature of the suit schedule property, and that the

property was not an agricultural land, as described in the

plaint, but rather comprised of several houses and plots

with well-developed roads and civic amenities like electricity

and water lines. He contended that the trial Court failed to

consider the fact that the persons in actual possession of

the property, including the appellants, were not made

parties to the suit, and that the same was a fatal defect, as

the plaintiffs and defendants had colluded to obtain a decree

behind the back of the real parties in possession. He

lamented that neither the plaintiffs nor the defendants were

in possession of the suit property, and that the same is a

clear indication that the suit was not genuine, but rather a

collusive attempt to obtain a decree that could be used to

harass the real parties in possession.

7. He asserted that the suit was liable to be dismissed

for non-joinder of necessary parties, contending that the

plaintiffs had deliberately omitted to implead the real parties

in possession, including the appellants, in order to obtain a

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decree that could be used to their advantage. He averred

that the trial Court failed to consider the fact that the

plaintiffs and defendants had a common interest in

obtaining a decree, and that they had colluded to achieve

this objective. He incessantly contended that the impugned

judgment under appeal violated the principles of natural

justice, as the trial Court failed to consider the fact that the

appellants and other real parties in possession had not been

made parties to the suit, and that they had been denied an

opportunity to present their case, which comes under clear

violation of the principle of audi alteram partem, which

requires that all parties who may be affected by a judgment

must be given an opportunity to present their case.

Therefore, he prayed this Court to allow the appeals, setting

aside the impugned judgment dated 15.11.2010.

8. On the contrary, learned counsel appearing for

respondents, vehemently opposed the submissions made by

learned counsel for appellants and submitted that the

appeals itself are not maintainable as they challenge the

preliminary decree passed in the year 2010, whereas, the

final decree was passed in the year 2013 and possession

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was delivered to the respondents in the year 2018. He

contended that the appellants, who claim to be plot owners,

have no right to challenge the decree passed by the trial

Court, and that they ought to have filed claim petitions in

the execution proceedings instead of appealing against the

preliminary decree. He further contended that the prayer of

the appellants' is based on sale deeds that are void and

ab-initio, as they were executed by persons who had no

exclusive rights or title over the entire property. He pointed

out that the sale deeds did not contain any recital regarding

the delivery of physical possession of the land to

C.Divakar Reddy, and that there were no boundaries

mentioned in the sale deed nor any plan annexed to identify

or localize the sold property.

9. He incessantly contended that the appellants have not

produced the original sale deed or proved their ownership,

and that they have no right to claim the entire property as

per the preliminary decree passed by the trial Court. He

lamented that if the appellants have any claim, they ought

to have claimed it from their vendors only, and not from the

decree holders. He pointed out that

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C.Divakar Reddy, the vendor of the appellants, was a party

to the suit and did not file any appeal or counterclaim. He

averred that the same is fatal to the contention of the

appellants', as they are not claiming any right from their

vendor, and that the alleged vendor's vendor who got half of

the land is also not a party to the appeal. He asserted that

the appeals are barred by limitation, as they were filed after

a lapse of eight years from the date of the preliminary

decree, and that the appellants have suppressed material

facts, including the passing of the final decree and the

execution proceedings, and that this is sufficient ground to

dismiss the appeal.

10. In addition, learned counsel for respondents

articulated that A.S.No.954 of 2018 was filed by some of the

plot owners challenging the preliminary decree passed in

O.S.No.51 of 2005 and the same was dismissed, observing

that the appellants have the remedy of filing claim petitions

under Order XXI Rule 58 CPC in the execution proceedings

pending before the trial Court. He further submitted that

E.P.No.29 of 2013 was filed by the respondents, decreed

holders, for delivery of possession of the suit property,

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whereunder, the execution Court delivered possession of the

share of the respondents to an extent of Acs.06.15 Guntas

on 03.05.2018 and the appellants did not file any objections

before the bailiff or before the execution Court, claiming

their rights over the said small plots. He asserted that

execution Court excluded the plots claimed by the

appellants from the delivery of possession, in view of the

stay orders passed by this Court in the appeals filed by the

plot owners. Therefore, he concluded his submissions

averring that the appeals are devoid of merits, both in law

and on facts, and prayed this Court to dismiss the same.

11. Now the points for consideration are :

I. Whether the plaintiffs in O.S.No.51 of 2025 are entitled for partition and for equal share along with defendants ? II. Whether the subject properties are already partitioned ? III. Whether the properties were partitioned in terms of partition deed dated 15.10.1966 ? IV. Whether the plaintiffs were not in joint possession of the subject properties, as contended in written statement ? V. Whether the impugned judgment requires interference of this Court ?

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POINT Nos.I to V:

12. Having regard to the rival submissions, and on going

through the material placed on record, it is noted that

originally, the plaintiffs filed suit for partition of suit

schedule property i.e., in relation to survey No.34, stating

that there is a partition deed between the brothers,

according to which set of properties were divided into equal

shares between them, except for the property in survey

No.34 which was in possession of elder brother, whereas,

there is a recital in the said partition deed that the fruits of

survey No.34 be enjoyed by both sons, in alternate years.

Therefore, from the date of partition deed they were enjoying

the same and after the death of D1, they claimed partition

for the said property but they were denied the same, as

such, suit was filed.

13. On going through the partition deed filed by the

plaintiffs under Ex.A1, it is seen that there is recital in the

said deed with regard to survey No.34 that the brothers

would have equal shares and they would enjoy the fruits of

the said property alternately, whereas, the contention of

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defendant before the trial Court was that only to the extent

of fruits of the property i.e., the mango and tamarind trees,

the fruits would be shared equally and that in the said

partition deed it was clearly shown that survey No.34 is in

occupation and possession of D1, therefore, they are entitled

for the said share of property. The recitals in the partition

deed would clearly show that the brothers are having equal

shares of the property, though the same was under the

possession of elder brother. Further, the recitals would

clearly clarify that both parties are having equal share in the

said property. Therefore, there is no force in the contention

of defendant that they were exclusive owner and possessor

of the property in survey No.34, as such, there is absolutely

no illegality in the judgment of the trial Court, over the

aspect of partition deed.

14. Reverting to the appeals on hand which are filed by

third parties contending that they are subsequent

purchasers and that being so, though they were necessary

parties to the suit, they were not made parties as the said

suit was a collusive suit of plaintiffs and defendants.

Further, that in the year 1979 itself D1 and D2 sold the said

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property to D3 and D3 in turn, sold the same to various

purchasers and that appellants purchased the property

from the subsequent purchasers of D3. At this stage, it is

imperative to note that earlier, some of the subsequent

purchasers filed appeal before this Court vide A.S.No.954 of

2018 whereunder, this Court observed that they are

required to file claim petitions before the trial Court instead

of preferring appeals, as such, the appellants therein filed

claim petitions before trial Court in E.P.No.29 of 2013 and

the record shows that the said claim petitions were

dismissed by the trial Court. Further, as seen from the

record, it is to be noted that the subject property was

purchased subsequent to filing of suit and the claim

petitions were dismissed observing that claim petitioners

therein were pendente lite purchasers and in the present

cases also, some of the purchasers are pendente lite

purchasers and they are challenging the partition itself, but

there is no such illegality in the judgment of the trial Court

in this regard, as it is clear that survey No.34 is a joint

property.

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15. Perusal of record would reveal that in A.S.No.954 of

2018 I.A.No.1 of 2018 seeking leave to appeal and I.A.No.3

of 2018 seeking to condone the inordinate delay of 2676

days in preferring appeal challenging the judgment and

decree dated 15.11.2010 passed in O S No 51/2005, were

filed, which were dismissed along with the appeal itself

whereunder, it was observed that 'in case the appellants are

still in possession of the plots, to direct that they shall not be

dispossessed from the total extent of 1003 square yards of

land for a period of four weeks from today, to enable them to

file their claim petitions, in the pending execution proceedings,

in the meanwhile. Needless to state that, in case no such

petition is filed within the aforesaid period of four weeks,

execution proceedings may go on'. That being so, record

would show that possession was already delivered to the

respondents herein, whereunder, they excluded plot Nos.25,

91 and 94, and they already left the plots which were under

challenge and it was mentioned that stay was granted by

this Court in another plot number.

16. In view of the above, when there is no illegality in the

decree of trial Court, the appellants herein cannot claim the

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properties stating that they are not made as parties to

decree. Further, in the evidence affidavit of DW.2 it was

stated that he purchased plot bearing Nos.144 and 145, and

in his cross examination he admitted that there are

tamarind and mango trees in survey No.34. That being so,

when it is clearly seen that D2 admitted that property is in

possession of third party in his cross examination, the same

was considered by the trial Court and suit was decreed

thereof. Therefore, it can be observed that there are no

illegalities or irregularities in the impugned judgment dated

15.11.2010 warranting interference of this Court. There are

no just and proper grounds in these appeals and the same

are liable to be dismissed. Accordingly, point Nos.I to V are

answered.

17. In the result, these appeals are dismissed. There shall

be no order as to costs. Miscellaneous applications, if any

pending, shall also stand closed.

_______________ K. SUJANA, J

Date:15.04.2025 PT