Dismissed

P.Bala Mani v. S.Mohan Reddy

Telangana HC30 Sept 2011CMA/995/2009

Case brief

AI extract

What is this about?

Held that the trial court's observations on cause of action and partition feasibility prejudiced the appellant's rights as a coparcener. Directed the trial court to decide the suit expeditiously, preferably within six months, free from prior observations, while dismissing the immediate appeal against the ad interim injunction order.

What did the court decide?

The appeal was dismissed; the trial court was directed to dispose of the suit within six months.

P.Bala Mani Vs S.Mohan Reddy — Partition | Telangana HC (2011)

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THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE B.N.RAO NALLA

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CIVIL MISCELLANEOUS APPEAL No.995 of 2009

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Dated:19.10.2009

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Between: P.Bala Mani. And S.Mohan Reddy, And others.

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….Appellant

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…Respondents

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THE HON’BLE SRI JUSTICE V.V.S.RAO AND

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THE HON’BLE SRI JUSTICE B.N.RAO NALLA

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CIVIL MISCELLANEOUS APPEAL No.995 of 2009

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ORDER: (per Hon’ble Sri Justice V.V.S.Rao)

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The appellant is the plaintiff. She filed a suit, being O.S.No.418 of 2008, on the file of the Court of the II Additional District Judge, Ranga Reddy District, for partition. Be it noted, respondent Nos.1 and 2 are the parents of the appellant, respondent No.3 is the sister and respondent No.4 is the brother of the appellant, whereas respondent No.5 purchased a portion of the suit schedule property. The main allegation made by the appellant is that she is a coparcener entitled to a due share in the suit schedule property, that in spite of demand made by her, respondent Nos.1 to 4 refused to partition the property and that they sold Ac.0.38½ guntas in favour of respondent No.5.

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The appellant filed I.A.No.906 of 2008 under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908, seeking ad interim injunction restraining the respondents from alienating the suit schedule property in favour of third parties pending the suit. The said application was dismissed by the learned trial Judge on 27.01.2009. Aggrieved thereby, the present appeal is filed.

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Learned Counsel for the appellant though raised various contentions challenging the impugned order of the trial Court submits that the observations made by the learned trial Judge in paragraphs 8 and 9 would prejudice the contentions of the appellant.

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We have been taken through these observations made by the learned trial Judge, which are as under.

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…Thus the petitioner utterly failed to establish that she had made any demand on 1^st respondent to provide her share. Thus there is absolutely no cause of action to file a suit for partition and separate possession against the respondents…

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…In case the suit schedule property is divided into piece and allotted in favour of each of the petitioner and respondent Nos.1 to 4 the 1^st respondent cannot discharge the obligation and responsibility on him. Therefore, partition and separate possession of suit schedule property till the settlement of respondent Nos.3 and 4 is not permissible and not acceptable. Therefore, there is absolutely no prima facie case in favour of the petitioner.

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Insofar as the question of cause of action is concerned, it is a matter of law and no provision of law has been brought to our notice that a notice of demand must precede partition suit. Secondly, when the appellant/plaintiff claims a share in the suit schedule property as a coparcener by reason of amendments made by Parliament to Section 6 of the Hindu Succession Act, 2005, any observations as is made by the learned trial Judge in paragraph 9 would certainly prejudice her right.

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Therefore, we are convinced that the trial Judge should decide the suit without in any manner influenced by the observations extracted hereinabove. It shall be open to the parties including respondent No.5 herein to raise all their contentions at the time of final hearing as well as at the time of leading evidence. Both the learned Counsel agreed to cooperate with the trial Court for expeditious disposal. Therefore, we direct the trial Court to dispose of the suit itself as expeditiously as possible, preferably, within a period of six months from the date of receipt of a copy of this order excluding Court vacation period and without seeking further extension.

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The Civil Miscellaneous Appeal, with the above observations and directions, is accordingly dismissed. There shall be no order as to costs.

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_______________ (V.V.S.RAO, J)

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________________ (B.N.RAO NALLA, J)

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19.10.2009 vs

P.Bala Mani v. S.Mohan Reddy

Case brief

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P.Bala Mani v. S.Mohan Reddy

Case brief

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