This appeal challenged a trial court's partition decree. The High Court dismissed the appeal, holding that while the parties were legal heirs, the appellants failed to prove an oral partition of the ancestral property by acceptable evidence.
The appeal was dismissed and there was no order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
[32s8 ]
IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD
MONDAY,THE FOURTEENTH DAY OF AUGUST TWO THOUSAND AND TWENTY THREE
RESENT
THE HONOURABLE SRI JUSTICE SAMBASIVARAO NAIDU
CITY CIVIL COURT APPEAL NO: 1 OF 2019
Appeal Under Section 96 of C.p.C against the Judgment and Decree Dated 13-12-2017 made in o.s. No. 11\l2oo9 on the fire of the court of the Learned XX Additional Chief Judge at Secunderabad.
Between:
...APPELLANTS/DEFENDANTS
AND
...RESPONDENTS/DEFENDANTNo' 1, 5,7 to 14
IA NO : 2OF 2019
Petition underSection 151CPC prayingthat in the circumstancesstated in the affidavitfiled in support of the peiitio;,the High Court may be pleasedTo. .irv ,[ frttn",proceedings includingfinal decree^ proceedingsin pursuance.of ir|l!'irasr""irnddecree-dated.13-i2-2o17lN os No'118/2009passed by the i.;l;; XX Additionatchief Judge, ccc, at Hyderabad pending disposal of the above appeal.
Counsel forthe Appellants :SRl' K' ANNAPURNAREDDY
Counsel for theRespondent No' 1 : Mr'GANTA RAMAKRISHNA
Counsel forthe Respondent No' 2: SRI K' VENUMADHAV
Counsel for theRespondent No' 11 : Mr K' GIRIDHAR RAJU
Counsel for theRespondent Nos' 3' To 1o: Noneappeared'
The Court madethe following:ORDER
HONOURABLE SRI JUSTICE SAMBASIVA RAO NAIDU
C.C.C.A.NO.1 of 2019
JUDGMENT
This first Civil Appeal has been filed under Section 96 of C.P.C. by the aggrievedparty namely defendants No.2,3,4 and 6 in OS.No.11B of 2009 on the file of XX Addl. Chief Judge, Secunderabad, in the above said suit dated 13-12-2017, where under, the trial Court passed a preliminary decree forpartition of the suit scheduleproperties and allotting 1/3'd share in favour of the respondent/plaintiFf. This appeal has been filed on the following grounds.
2 S5RN,] C.C C.aNo 1ol2019
oF the property but there isno documentin support of the said contention. Even though, therespondentclaimed that he had possession over the property through PW.2, he could notproduce any document insuppoft ofthe alleged tenancy. Therefore,the statement of PW.2 would not bea sufficientproof to prove the possession of respondent. The Court belowfailed toobserve that the respondentproducedEx.A1-propertyTax receipt of the premises bearing No.1-19-55, that itself shows theproperty was orallypartitioned and enjoyed bythe respectiveshareholders. The Court below failed to considerthat Ex.A2-encumbrance certificatepertains to theperiodfrom 01-01-1958 to 3l-72-L976 for the property bearing No.1-19-37,which exclusivelybelongsto the defendants.The Court below ought to have consideredEx.A4- electricity bill was inrespect ofthepremises ofthe appellants/defendants.The Court below oughtto have considered that Ex.A7 which is marketvalue certificatewere the property bearing No.1-19-37,whereas, the respondent/plaintiff is claiming partition in respect ofproperty bearingNos.1-19-37 to 39 and 1-19-55. Ex.ABfiledby the respondentclearly shows the partition between legalheirs oflate GangaRao as the said document was registered on 24-04-2006.The legal heirs of Muni Rao, who are
3
55RN,I C.C C.A No 1of 2019
residing in the samepremises, did not have any objection to the registration of the said document.
4 SSRN,] C C C.A N0.1o12019
schedule in respect oF property bearing No.1-9-37 to 39, but there is no such property in existence and no such property is shown in the plaint schedule. They have also contended that the Court below could not show any reason for passing a preliminary decree and failed to frame any ground with regard to the observation about miss-joinder of parties to the suit since defendants No.2, 3, 4 and 6 are the only necessary parties. Therefore, according to the appellants, the Court below failed to observe that the construction raised by defendant No.5 cannot be a ground for cause of action and failed to appreciate the contention of the defendants, as such, sought for setting aside the judgment and decree dated 13-12-2017 andprayed for dismissal of the suit.
SSRN,] C.C.C.A.No.1of 2019
and he was blessed with three sonsnamely Tata Rao, GangaRao and Muni Rao. Theplaintiff is the son of late Tata Rao who died on 02-11-1969. The defendants are legal heirs ofGanga Rao and Muni Rao. TheplaintiFf by claiming that himself and all the defendants constitutesjoint Hindu family and contented that the suit schedule property stands in the name of late Appala Swamy and sought for apreliminary decree ofpartitionand for allotment of his 1/3'd share.
55RN,J C.C.C.A No.1ol 2019
No.1-19-55 and it cannot be subject matter for partition. According to the statement Filed by the defendants, they have categoricarry contended that there was an orar partition between the family members of the Appala Swamy. The plaintiff is not a member of the joint family. The property shown in the schedule is not available for partition, thereby, sought for dismissal of the suit. On the basis of the rival contentions of plaintiff and defendants, the trial Court framed the following issues.
3 Whether the plarntiFf is entrtled for partition to premises bearing No.1- 19-55 a lon e)
B. In the trial, the plaintiff has been examined as pW.1. One G.Shyamala was examined as pW.2. He has marked Exs.A1 to AB. The defendant No.6 is examined as DW.1. But the defendants did not file any documents in support of their contention. The Court below having appreciated the rival contentions and evidence adduced by the parties, came to the conclusion that all the parties constitute a joint family, the suit schedule property is their property and available for pa rtition,
7 5SRN,] c.c c.a.No.10l 2019
thereby,passed apreliminary decree for7/3'd share in favour of theplaintiFf along with the other legal heirs of GangaRao and
Muni Rao.
the followingpoints arose for consideration.
8
SSRN,I C.C C.a No 1 ol2019
decree for partition of the property into three shares and for allotment of 7/3'd share in his favour being son of Ganga Rao. Whereas, the defendants who are legal representatives of the other two sons of Appala Swamy @ Appa Swamy, specifically contended that there was oral partition of the property between the legal heirs of Appa Swamy about 35 years ago. The property was allotted and in pursuance of the alleged oral partition, registered document was also executed and that the plaintiFf is not in possession of the property and that he is not entitled to claim partition of the property because of the earlier partition.
9 55RN,I C C.C.a.No.1ol2019
the property. The defendants having claimed thatproperty bearing No.1-19-37 to 39 belongs toPrema Bai couldnot produce any oral or documentary evidence in support of thecontention. They are not in aposition to establish the oralpartition alleged to have been affected among the sons ofAppa Swamy orhis legal represen ta tives. Absolutely, there is no oral ordocumentary evidence to believe the alleged oralpartition.It may be true that one document was registered by showing thepartition of the property but the defendants could not establish the alleged partition by any acceptable evidence. During the cross examination, DW.1 admitted that they didnot fileany documents to prove the extent of theproperty and toshow thatpropefty bearing No.1-19-37 to 39 belongs toPremaBai.
SSRN,] C.C C.A.No 1 of 2019
10
Consequently, Miscellaneous applications if any, are closed No costs.
Sdi- K. SRINIVASA RAo, JOINT REGISTRAR
//TRUE COPY//
g
SECTION OFFICER
To, 1. The XX Additional Chief Judge atSecunderabad. (With records)
D \
HIGH COURT DATED:1410812023
JUDGMENT
CCCA.No.1 of 2019
ar-
ts- SiAf 1
4
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il 0 N0l itiZi
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DISMISSING THE APPEAL
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[32s8 ]
IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD
MONDAY,THE FOURTEENTH DAYOF AUGUST TWO THOUSAND AND TWENWTHREE
PRESENT
THE HONOURABLE SRI JUSTICE SAMBASIVARAONAIDU
CITY CIVIL CoURT APPEAL NO:1 OF 2019
Between:
...APPELLANTS/DEFENDANTS
...RESPONDENTS/DEFENDANT No. 1, 5,7 to 14
Appeal Under Section 96 of C.P.C against the Judgment and Decree Dated 13-12-2017 made in O.S. No. 11812009 on the file of the Court of the Learned XX Additional Chief Judge at Secunderabad.
ORDER : This appeal coming on for hearrng and upon perusing the grounds of appeal, the Judgment and Decree of the Lower Court and the material papers in the Suit and upon hearing the arguments of SRl. K. ANNAPURNA REDDY, for the Appellant and of Mr. GANTA RAMAKRISHNA, Advocate for the Respondent No. 1 Mr K. and of SRI K. VENUMADHAV, Advocate for the Respondent No.2 , GIRIDHAR RAJU, Advocate for the Respondent No.'l 1 and not appeared either in person or by Advocate for Respondent Nos. 3 ton 10
This Court doth Order and Decree as follows :
Sd/.K. SRINIVASA RAO JOINT REGIS
//TRUE COPY//
To,
sEcTtoN o FICER
rff^--
HIGH COURT DATED:14/08/2023
DECREE
CCCA.No.'I of 20'19
DISTVISSING THE APPEAL
\I )
i\r fi-
2 issues framed by the court
Whether the Court below failed to appreciate the appellants' contentions regarding oral partition and evidence of possession?
Whether the respondent/plaintiff is entitled to a preliminary decree for partition of the suit schedule properties?
G.Nirmala Devi
G. Thulasi rao
G. Venkat Rao
G Srinivas Reddy
L-Mable Rani
G Krishna Rao @ C.t_...
Sambasivarao Naidu
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
