Telangana High Court
Asad Moinuddin vs Shakeel Hyder And 5 Others on 28 May, 2025
Author: Nagesh Bheemapaka
Bench: Nagesh Bheemapaka
HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
A.S.No. 1020 OF 2012
J U D G M E N T:
This is Plaintiff's Appeal filed under Section 96 of
CPC, impugning the Judgment and Decree of dismissal dated
06.01.2012 passed by the learned Senior Civil Judge at Siddipet
in O.S.No. 123 of 2007.
2. For brevity, the parties are referred to as they were
arrayed in O.S.No. 123 of 2007.
3. Plaintiff and father of Defendants 1 to 5 are
biological brothers and are sons of Late Abdul Rasool who died
in 1952. After the death of Abdul Rasool, Revenue Authorities
mutated the name of Plaintiff and father of Defendants 1 to 5 in
Shikmi column and Pattadar column vide proceedings
No.A1/5/13/53/D2/53, in the revenue records in respect of the
agricultural lands in Survey No. 53/AA admeasuring Acs.17-11
Gts, of Ponnala Village, Siddipet Mandal, Medak District. The
above mentioned property is the Suit Schedule Property.
4. Plaintiff requested Defendants to partition the suit
schedule property by meets and bounds, personally and so also
through mediators, however, Defendants were postponing the
same on one pretext or other and finally, Plaintiff on 29.07.2007
had requested for partition which was refused by Defendants
and having no alternative, Plaintiff filed the above suit for
partition of the suit schedule property.
5. In the written statement, defendants admit the
relationship between themselves and Plaintiff, however, deny
the claim of Plaintiff that Suit Schedule Property is Matruka
Property. It is specific case of Defendants that suit schedule
property is the self- acquired property of father of Defendants 1
to 5 and husband of Defendant No. 6. The suit schedule
property never belonged to Late Abdul Rasool at any point of
time even prior to or after 1952. Khasara Pahani reflects the
name of Late Hyder Moinuddin as pattadar having purchased
the same from private individuals.
Late Hyder Moinuddin died in 1977 and after his
death, names of Defendants were mutated in revenue records in
respect of the suit schedule property and nowhere Plaintiff's
name was reflected in the revenue records.
Defendants also challenged the nature of
employment of Plaintiff and had denied that Plaintiff was in
employment with Electricity Department and are vocal in stating
that Plaintiff was in employment with Panchayat Raj
Department and worked as Civil Engineer. Earlier there was
partition suit being O.S.No. 220 of 1991 on the file of the Junior
Civil Judge and the same was decreed and final decree was also
passed vide I.A.No.519 of 1999. In the said partition suit,
Plaintiff and Defendants were parties, however, suit schedule
property in the present lis, was not the subject matter of the
aforementioned suit.
It is the specific case of Defendants that suit
schedule property was self-acquired property of Hyder
Moinuddin and he sold the same to washermen and fishermen
community and that said land was never in physical possession
of the declarants in C.C.No.SPT/2645/75 on the file of the Land
Reforms Tribunal as such, the said lands were deleted from the
holding of the Hyder Moinuddin. State Government preferred
Appeal as against the order of the Tribunal, however Appellate
Tribunal had confirmed the order of the Land Reforms Tribunal.
Thus during the period 1959-60 to 1974-75, the suit schedule
property was not in possession of the declarant and so also with
Plaintiff. After the disposal of the Land Reforms Proceedings,
Defendants 1 to 5 have re-purchased the lands in Survey No.53
from the owners and possessors.
It is stated, Plaintiff had earlier filed O.S.No.209 of
1978 for partition claiming share in agricultural lands in Survey
Nos. 175/E, 174/E, 54, and 55. In the said suit, Defendants are
arrayed as Defendants. The said suit was decreed and final
decree was also passed. The suit schedule property in the
present suit is not subject matter of the first partition suit being
O.S.No.209 of 1978, hence, Plaintiff cannot file a second suit for
partition.
6. The trial Court, after considering the pleadings, had
framed the following issues:
1. Whether the plaintiff is entitled for partition of schedule property into
two equal shares and allotment of one such share to him?
2. Whether plaint schedule property in Sy.No.53/AA of an extent of
17acres and 11 guntas is ancestral property of plaintiff and
defendants?
3. Whether plaint schedule property is self acquired property of father of
the defendants no.2 to 5 and husband of D6?
4. Whether the Judgment and Decree in O.S.No.209 / 1978, passed,
bars the suit, in view of Order II Rule 2 of C.P.C.?
5. Whether suit is not maintainable in Law?
6. Whether suit is bad for non-joinder of proper and necessary parties?
7. Whether the proceedings in CC.No.SPT/2645/75 before Land
Reforms Tribunal holding that objection purchaser of land and
deletion of the same from the jholding of Hyder Moinuddin is binding
on the plaintiff?
8. Whether the Judgment and Decree in O.S.No.221 of 1991 and
subsequent proceedings are binding on the plaintiff?
9. Whether court fee paid is insufficient?
10. To what relief?
An additional issue is framed whether the suit is barred
by Limitation?
7. In the above suit, Plaintiff examined two witnesses
including himself as PW1 but subsequently the same was
eschewed and Plaintiff's son Nazeer Mohiuddin was examined as
PW2 and got marked Exs. A1 to A33. Defendant No.2 was
examined as DW1 and Exs.B1 to B34 were marked. Defendant
No. 1 was set ex parte. The trial court had dismissed the above
suit on 06.11.2012, with no costs. Impugning the said dismissal
of the suit, Plaintiff preferred this Appeal.
8. The trial Court after considering the pleadings and
documentary evidence had held Issue Nos. 1 to 6 and 9, in
favour of Defendants and Issue Nos. 7, 8, Additional Issue in
favour of Plaintiff and dismissed the suit.
9. Learned counsel for appellant Sri S. Ganesh Rao
submits that the Trial Court disregarded Ex. A23, Plaint in
O.S.No.220 of 1991, wherein Defendants stated that suit
schedule property is Matruka Property of Late Abdul Rasool.
The trial Court had erroneously held that suit schedule property
is the self-acquired property of Hyder Moinuddin basing on
Record of Rights and revenue entries. The trial Court did not
consider Ex.A11 Registerd Sale Deed pertaining to suit schedule
property by Plaintiff's father on 31 Aban 1333 Fasli and
admissions in ExA-23. It is argued that the trial Court
committed error in holding that suit is not maintainable under
Order 11, Rule 2 and 3 of CPC. The trial Court erroneously held
that suit schedule property is self acquired property of
Moinuddin, whereas Ex. A11 establishes that suit schedule
property is acquired by the father of Plaintiff. The trial court had
given undue importance to Khasara Pahani which do not confer
any title to suit schedule property.
10. Heard Sri G. Anandam, learned counsel, Sri P. Raja
Sreepathi Rao, learned Senior Counsel on behalf of Sri Dileep
Kumar Bommena, learned counsel and Sri Jogaram Tejawat, on
behalf of respondents.
11. It was urged by Defendants that since Plaintiff had
not stepped into the witness box, as evidence of the Plaintiff
examined as PW1 was eschewed, an adverse inference has to be
drawn as against him. PW2 who is the son of Plaintiff was
nowhere in the picture all through the period of proceedings till
filing of the evidence was allowed by the trial court to be
examined on the ground that since the health condition of the
Plaintiff is bad.
12. PW2, in his cross-examination, admitted that
Plaintiff had earlier filed suit for partition and the same was
decree and that said proceedings and details were not
mentioned in the present suit; plaintiff sold away the lands fell
to his share in Survey Nos. 174, 175, 54 and 55 of Ponnala
Village; there is no mention of suit schedule property in the
earlier suit; name of Hyder Moinuddin is shown as possessor
and purchaser in the Khasara Pahani; Plaintiff did not file any
document to prove that Plaintiff and Hyder Moinuddin are in
joint possession of suit schedule property; in Ex.A20, LRAT
Judgment, it is mentioned that Hyder Moinuddin had sold away
suit schedule land to 17 persons and that their names are
mentioned Column of Ex. A3 to A5. Defendant No.2 had filed
O.S.No.221 of 1991 seeking partition of suit schedule lands and
that preliminary decree was passed on 17-08-1999 and the
same was followed by passing of final decree on 29-02-200;.
PW2 had verified the encumbrance certificate filed by
Defendants 2 to 6, wherein 67 transactions are reflected as
against the suit schedule property and that Plaintiff did not
make them as parties to the suit; further, in Ex. B33 name of
the pattradar of lands in Survey No. 53 is shown as Balreddy
Hanumanth Reddy, (admittedly, he is not made a party
defendant to the suit)
13. Defendant No. 2 was examined as DW and his
version is that his father (Hyder Moinuddin) had purchased suit
land in 1932 Fasli and in year 1953, his father sold suit land to
Fishermen Community and there was compromise in O.S.No.
220 of 1991.
14. Issue Nos.4 and 5:
It is the case of defendants that suit schedule
property is not Mathruka property of Abdul Rasool, as such, the
same was not included in O.S.No.209 of 1978 filed by Plaintiff.
Per contra Plaintiff contends that though once partition takes
place in a joint family, the occasion to seek further partition
would arise. The trial Court had negatived the said submission
of Plaintiff that it is not the case of Plaintiff that Suit Schedule
Property was kept aside during the earlier partition and though
the burden of proof is on Plaintiff to prove the same, he did not
discharge the same so also did not explain the reason as to why
he has not included suit schedule property in O.S.No. 209 of
1978, if the suit schedule property is Mathruka property of
Plaintiff and Defendants. The trial Court considering the pleadings,
evidence and law had concluded that present suit is hit by Order 2
Rule (3) of CPC, therefore, Plaintiff cannot seek partition of suit
schedule property and held that suit is not maintainable under law.
These two issues are answered as against Plaintiff.
15. Issue No.8:
It is noticed by the trial Court, the suit number is
wrongly mentioned as O.S.No.221 of 1991 instead O.S.No.220 of
1991. This seems to be typographical erroг. Certified Copy of
the preliminary decree passed in O.S.No.220 of 1991 is marked
as Ex.B24 and Certified Copy of the final decree is marked as
Ex.B25. It is the contention of Plaintiff that since he is not party
to suit, the said decree is not binding on him. The trial Court
had accepted the said contention of Plaintiff and answered Issue
No.8 in favour of Plaintiff. This Court is not in acceptance of the
said conclusion of the trial Court and this aspect is discussed
infra.
16. Issue No.7:-
It is the categorical case of Defendants that suit
schedule property is not Mathruka Property of Plaintiff and
Defendants and Defendants relied upon Land Reforms
proceedings declaration dated 11.04.1976. Basing on the
declaration filed by the father of Defendants, Land Reforms
Tribunal had passed orders on 14.10.1976, Exs. B17 and B18,
Certified Copy of the Judgment. As against the said judgment,
government had preferred Appeal which was dismissed. Orders
passed by the Land Reforms Tribunal are binding on Plaintiff.
However, Plaintiff contends that he is not bound by the said
orders as he is not having knowledge of the same.
17. The trial Court though had taken into consideration
that public notice was issued under Rule 4(b) of the A.P. Land
Reforms (Ceiling on Agricultural Holding) Rules, 1974 and had
held that proceedings in C.C.No.SPT/2645/75 dated
14.10.1976 before the Land Reforms Tribunal and deletion of
the name of father of Defendant from the holding, is not binding
on plaintiff. This finding of trial Court is erroneous.
18. Issues 1 to 3:
The main contention of Plaintiff is that suit
schedule property is ancestral property of Plaintiff and
Defendants, therefore, he is entitled to seek partition of the
same. On the other hand, Defendants deny the said claim
contending that suit schedule property is self-acquired property
of the father of Defendants 1 to 5 and husband of Defendant
No.6. Plaintiff had relied upon Exs. A3 and A5, wherein names of
Defendants 1 to 5 and that of Plaintiff are mentioned as pattadars.
However, in Ex.A8 proceedings of MRO dated 22.03.2000, names of
Defendants and three others are mentioned as pattadars, in this
Exhibit name of Plaintiff is not mentioned. Ex. A32 is the crucial
document, which is Khasara Pahani wherein the name of Hyder
Moinuddin is mentioned as pattadar. This being fundamental
document, is having a bearing on the adjudication of this Appeal.
19. A new angle had cropped up from Exs.A13 and 14,
which show that one Balje Nagaiah alienated land of Ac.
03-20 Gts in Survey No.53/A in favour of wife of Plaintiff.
Admittedly the total extent of land recorded in Survey No.53/A
is Ac.20-31Gts., thereby the balance land that is available is an
extent Acs.17-11gts, which is being claimed by Defendants. In
this scenario, it was not explained by Plaintiff as to how his
father had purchased lands in Sy. No.53/A, when Plaintiff
admitted that his wife had purchased land from Balje Nagaiah.
This aspect clears the mist created by the Plaintiff the suit land
is not Mathruka Property of Plaintiff and Defendants.
20. The trial Court discussed the Exhibits in detail and
had come to the conclusion that suit schedule property is not
the ancestral property and in view of the conduct of plaintiff
filing O.S.No.209 of 1978 and mentioning the same in the
present suit, is not entitled to claim any right over the suit
schedule property and had accordingly, decided Issues 1 to 3
against Plaintiff and in favour of Defendants.
21. Issues No.6 and 9:
These issues are technical in nature and since other
issues are discussed elaborately, they are not being discussed
by this court.
In the light of the aforesaid submissions, the
following points would emerge for determination, namely,
1) Whether the Appellant / plaintiff has established that the suit lands
are joint family properties?
2) Whether the claim of the Respondents/Defendants that the suit is not
maintainable for partial partition as the ancestral agricultural lands
of the parties were already partitioned in O.S.No. 209 of 1978 wherein
suit schedule property is not included in the said suit?
3) Whether the Appellant/ Plaintiff has established that the suit
scheduled properties are liable for partition and he is entitled to half
share therein?
4) Whether the impugned judgment and decree of the trial court is
sustainable?
5) To what relief?
22. Point Nos. 1 to 4: Since all these points are
inextricably inter-twined and inter-linked, they are being
decided together.
23. Most important and crucial aspect in adjudicating
this Appeal is the conduct of Plaintiff in filing suit for partition
seeking partition of suit schedule property suppressing the fact
of filing of O.S.No.209 of 1978 on the file of District Munsiff,
Siddipet, wherein he sought for partition of agricultural lands in
Sy. Nos. 174, 175, 54 and 55 of Ponnal Village. Conspicuously,
there is no pleading in the Plaint about earlier partition. The
aforesaid partition suit was decreed and final decree was also
obtained by Plaintiff and suit schedule property therein were
partitioned by meets and bounds. Subsequently, Plaintiff had
sold away lands fallen to his share, in the aforementioned suit
and now cannot be permitted to approach the Court seeking
another partition more so in respect of the property which was
not included in earlier suit, without seeking leave of the Court
in the first suit being O.S.No.209 of 1978. If the version of PW1
and his filing of O.S.No.209 of 1978 without including the
present suit schedule property are viewed in the context of the
legal principles, the irresistible conclusion that would emerge is
that plaintiff filed O.S.No.209 of 1978 without making the suit
schedule property herein, on his own volition and with full
knowledge admitting and acknowledging that he has no right in
suit schedule property. This is one dimension of the matter. The
approach of Plaintiff in filing the second suit is by design. This
court is taking serious view of the said conduct of Plaintiff.
Plaintiff is guilty of deliberate suppression of facts which are
material in adjudicating the lis. The suit of Plaintiff is hit by
Order II, Rule 2 and 3 of CPC and trial Court had rightly held
the suit is not maintainable and had rightly dismissed the suit.
24. Plaintiff had approached the Court seeking partition
of suit schedule property and burden of proof is on Plaintiff to
prove his case that suit schedule property is Matruka property
of Abdul Rasool. Plaintiff cannot rely upon the weakness of
defense setup by Defendants. Once again, the role, conduct and
approach of Plaintiff plays a crucial role. In view of suppression
of the fact of earlier suit, Plaintiff cannot explain as to the
reasons why suit schedule property was not included in the
earlier suit schedule properties. Plaintiff by not including suit
schedule property in the earlier suit by his conduct had waived
off his right if any over the suit schedule property. The said
conduct of Plaintiff is hit by Doctrine of estoppel. Thereby
Plaintiff is barred from filing a second suit for partition.
Furthermore, it is settled principle of law that there cannot be
partial partition or multiple partitions between the same parties.
25. Now coming to the first ground which is principle
ground of attack of Plaintiff in this Appeal is the contention in
the Plaint filed by Defendant No. 2 against the other Defendants
therein and third parties being O.S.No. 220 of 1991 on the file of
the Junior Civil Judge at Siddipet. Plaint of O.S.No.220 of 1991
is marked as Ex A23, wherein, it is mentioned that Suit
Schedule Property is Matruka property of Abdul Rasool. This
suit is filed after the decree was passed in O.S.No. 209 of 1978,
dated 30.12.1978, Ex.B21 and so after the final decree passed
on 24.07.1979, ExB22. From the said sequence of events, it can
be understood that Plaintiff having come to know of the Pleading
made in O.S.No.220 of 1991 taking advantage of the same, had
filed the present suit for partition overlooking his own claim
made in O.S.No.209 of 1978. This Court deprecates the conduct
and approach of Plaintiff and neither is ready to observe the
submission of Plaintiff that Defendant No.2 having pleaded that
suit schedule property as Matruka property of Plaintiff and that
of Defendants now cannot deny the same. This Court is not
inclined to receive the said line of argument. Plaintiff in filing
the present suit has not approached the Court with clean
hands.
26. Ex.A23 cannot be termed as conclusive in terms of
Sections 17, 58, 91 and 92 of the Indian Evidence Act. Plaintiff
nor his son PW2 are parties to OS No.220 of 1991 as such, no
inference can be made that Ex.A23 is conclusive proof and
would not operate as estoppel against Defendants. Relying on
the settled principles of law, this Court is of the view that
plaintiff has failed to prove that suit lands are
ancestral/Mathruka property of Plaintiff and Defendants and
more so for the reason that suit schedule property was not
included in the earlier suit O.S.No.209 of 1978.
27. In the case on hand, admittedly, the proceedings of
Land Reform Tribunal plays very important role. The
observations and findings of the Land Reforms Tribunal were
confirmed by the Appellant Tribunal in the Appeal filed by the
Government. Admittedly, Plaintiff did not have any grievance as
against the Order of Land Reforms Tribunal, thereby the said
proceedings are binding on Plaintiff, for the reason that third
party rights were created over suit schedule property and
Plaintiff did not challenge the same. These circumstances and
order of the Land Reform Tribunal proves that suit schedule
property is not Matruka property of Abdul Rasool and thereby
Plaintiff is not entitled for any relief.
28. As discussed supra, the observation and
conclusion of trial Court that Judgment of the Land Reform
Tribunal is not binding on Plaintiff is erroneous. Judgment of
the Land Reforms Tribunal is passed under a statute after
following the due procedure. Plaintiff, if is aggrieved by the
same, should have taken steps as against the same. Neither
there is any whisper in the Plaint, more so, when his wife claims
to have purchased the land in Survey No.53/A. Reliance is
placed by Defendants on the Declaration given by Hyder
Moinuddin as well as the objection filed. This Court accepts the
Declaration of the Hyder Moinuddin made before the Tribunal
as conclusive. Accordingly, the finding of the judgment of the
Trail Court on this aspect is negatived.
29. A careful consideration of the submissions made on
behalf of Plaintiff, what is deducible is that an admission made
by a party in other suit cannot be regarded as conclusive and
can be shown to be wrong. If the factual matrix of the present
case is analysed with reference to these principles, it is apparent
that suit under Ex.A23 which is OS No. 220 of 1991 is not filed
against plaintiff, at this stage, coming to the recitals under Ex.
A23 and the testimony of PW1 in this suit, it is evident that
plaintiff has not satisfactorily offered any explanation as to why
he has not referred the suit lands in his earlier suit being
O.S.No.209 of 1978, in the present suit. If really the suit lands
were ancestral property, plaintiff would have certainly
mentioned the suit lands in O.S.No.209 of 1978 and would have
challenged the Order of the Land Reforms Tribunal contending
that Suit schedule property belongs to his family holding.
30. Therefore, plaintiff is estopped from making a turn
around with reference to filing of O.S.No.209 of 1978 which is
binding on him. Plaintiff has not discharged his initial burden to
establish that suit lands are Matruka.
31. Having regard to the aforesaid discussion and on a
careful consideration of the factual matrix of the present case
with reference to the principles of law, this Court has no
hesitation to hold that plaintiff on whom the initial burden lies
to prove that suit lands are Matruka property, has failed to
discharge the same and therefore, it cannot be said that plaintiff
is entitled for suit relief. The trial Court on appreciation of the
facts and material on record, had rightly dismissed the suit. In
view of the matter, this Court has no hesitation to hold that
judgment and decree of trial Court is sustainable and is
confirmed by dismissing the Appeal of Plaintiff. These points are
answered accordingly.
32. Point No.5: In the result, this Appeal is dismissed
by confirming the judgment and decree passed in OS No. 123 of
2007 dated 06.01.2012 by the learned Senior Civil Judge,
Siddipet. No costs.
33. Consequently, miscellaneous Applications, if any
shall stand closed.
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NAGESH BHEEMAPAKA, J
28th May 2025
ksld
