Dismissed

Arakala Gali Reddy and another v. Karla Parmeela and 2 others

Telangana HC16 Mar 2023CRP/1563/2022

Case brief

AI extract

What is this about?

This judgment relates to a Civil Revision Petition challenging the dismissal of an application under Order VII Rule 11 of the CPC to reject a plaint for partition. The High Court held that the trial Court correctly dismissed the application because factual defenses regarding partition and limitation must be tried on evidence and cannot be the basis for rejecting the plaint before trial.

What did the court decide?

The Civil Revision Petition filed under Article 227 of the Constitution of India was dismissed.

Arakala Gali Reddy and another Vs Karla Parmeela and 2 others — Partition | Telangana HC (2023)

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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THURSDAY,THE SIXTEENTH DAY OF IVIARCH TWO THOUSAND AND TWENTY THREE

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PRESENT

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THE HONOURABLE SRI JUSTICE SAMBASIVA RAO NAIDU

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CIVIL REVISION PETITION NO: 1563 OF 2022

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Petition Under Article 227 of the Constitution of lndia arlgrreved by the Order dated23.06.2022inl.A.No.59Bof 201BinO.S.No. 116of 201r-onthefileof theLd Principal District Judge, at Bhongir.

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Between:

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Arakala Gali Reddy, S/o. Late Sathi Reddy, aged 53 yr:; Occ Business, R/o Challur Village, Rajapet Mandal, Yadadri Bhuvanagtrt D strrct

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Arakula Buchi Reddy, S/o. Late Sathi Reddy, aged 5ti yrs, Occ Agrrculture, R/o. Challur Village, Rajapet Mandal, Yadadri Bhuvanaqrrr District.

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..,PETITIONERS/DEFENDANTS 1 & 3

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AND

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'1- Karla Parmeela, Wo. K. Jagath Reddy, aged. 70 yrs. Or:c Housewrfe, R/o. H.No. 1-80, Chowdaram Village, Chitakodur Mandal, Wirrangal District,

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Anumula Janamma, Wo. Laxma Reddy, aged. 65 yrs, Occ. Housewife, R/o H.No. 5-37i 1, Kolanpak Village, Yadadri Bhuvanagiri District

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Tirupathi Reddy, S/o. Late Sathi Reddy, Aged 45 yrs. Occ Agriculture, R/o Challur Village, Rajapet Mandal, Yadadri Bhuvanagiri Drstrict

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...RESPONDENTS/PLAINTIFF S/DEFENDANT NO.2

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lA NO: 1 OF 2022

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Petition under Section 15'1 of CPC praying that rn the^{:rrrcumstances} slated in the affidavit filed in support of the petition, the High Cor i rnay be pleased to stay all further proceedings in O.S.No. 116 of 2017 bel.,re the Ld Pnncrpal District Judge, at Bhongir till disposal of the present Revrsion Petitron

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lA NO: 1 OF 2023

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Petition under Section 151 of CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to vacate Stay of all further proceedings in O.S.No.1 16 of 2011 on the frle of Hon'ble Principal District Judge, Yadadri Bhuvanagiri District at Bhongir, order passed in C.R.P. No.1563 o'f 2022 in l.A.No.1 of 2022 on 15-07 -2022 and pleased to pass

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any other order or orders as this^{Hon'bleCourt maydeem fit and proper in the} circumstances of the case.

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Counset for the Petitioners :Sri NARESH^{REDDY CHINNOLLA}

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Counsel for the Respondents 1 & 2 : Sri^{A. KESHAVAREDDY}

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Counsel for the Respondent No.3 : Sri^{M. KRISHNA REDDY}

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The Court delivered the following:^JUDGMENT

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HONOURABLE SRI JUSTICE SAMBASIVA RAO NAIDU

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C.R.P.NO.1563 of 2022

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JUDGMENT :

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Being aggrieved by the orders in I.A.No.59B of 2018ⁱⁿ O.S.No.116 of 2017 on the file of^{PrincipalDistrict Judge,Bhongir} dated 23-06-2022, which herein after will be^{referred as} 'trial Court', dismissed the^petitions filed by the^petitioners herein under Order VII Rule 11(b) and^(d) C.P.C , the^{petitionershave} filed the present Civil Revrsion Petition under^{Article 227 of} Constitution of India.

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The petitioners herein are defendants No.1 and 3ⁱⁿ O.S.No.116 of 2077 before the trial^{Court.The respondent/plaintiff} has flled the main suit for^preliminary decree, for^partition of^the suit schedule properties.^{-lhe petitioners} herein have^filed LA.No.59B of 2018 under Order VII Rule 11(b) and^(d) C.P.C.^and sought For rejection ot the plaint. 1n support of the said^petition, the first petitioner/defendant No.1 filed hrs afridavit and submitted that the respondents/plaintifts frled the main suit only to extract money from the^petitioners herein. The respondents/plaintiffs^have got knowledge that suit schedule'A'to'C'properties were already

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5SRN,] C R P. No.1563 of 2022

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partitioned during the rifetime of their father Late Sathi Reddy and since then the parties were in actual physical possession of the property, thereby, the question of respondents/plaintiffs remaining in joint possession of the suit schedule property does not arise. The marriages of the respondents/plaintiffs were performed during the lifetime of their father, arienated an extent of 50 acres of rand. thereby, the question of partition of the suit schedule properties and allotment of land to the respondents/plaintiffs does not arise. The petitioner/defendant No.1 has further stated that in view of the death of their father which occurred prior to amendment of Hindu succession Act, the respondents/praintiffs are not entiued to any share in the suit schedule property, thereby, they prayed for rejection of the pta^jn t.

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The respondents/plaintiffs opposed the petition. Respondent No.1/plaintiff No.1 filed her counter affidavit and submitted that there was no such partition as alleged by the petitioners herein. While denying and disputing other averments of the petition and affidavit filed by the first petitioner, they have further- craimed that the praintiffs are entifled to have equar share in the plaint schedure properties by virtue of Section 29-A and Section 6 of Hindu Succession Act because the first plaintiff was

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55RN,] C.R.P. No.l563 of 2022

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minor and unmarrled when Section 29-A came into force and in view of the amendment to Section 6 of Hindu Succession Act which provides equal right to Hindu female in the joint and ancestral properties and as there is no such partition of the joint family property, the respondents/plaintiffs have got share, thereby, they have sought for dismissal of the petition

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The learned trial ludge having considered the above affidavit and counter affidavit and after hearing the counsel of the parties, came to the conclusion that the petition filed by the petitioners herein is untenable and there are no merits in the petition, thereby, dismissed the petition. The petitioner/defendants No.1 and 3 have filed the present Revision on the following gr ounds.

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The order impugned in the present revision is against the well-settled principles of law, the Court below ought to have considered that the respondents/plaintiffs have filed the main suit without having any right over PIaint "A" to "C" schedule properties. The Court below failed to consider that the suit schedule property is not ancestral property but it is a self-acquired property of father of the plaintiffs. They said self-acquired property of their father was already partitioned during his liFetime but the Court below

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5S RN,] C.R P No 1561of 2022

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failed to consider this fact and came to an incorrect concrusion. They have arso craimed that the Court berow faired to consider that the suit schedule property being a self_acquired property, being governed by Section B of Hindu Succession Act, the suit is barred by limitatlon. The father of the plaintiffs passed away during 2001. Since the property is being governed by Section g of Hindu Succession Act, if the plaintiffs have got any right, it could have accrued in 2001 but the suit is filed after a long unexplained delay of 16 years, thereby, the suit is barred by limitation.

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While questioning the court fees paid by the petitioners/plaintiffs, the petitioners further pleaded that the Court below committed an error by holding that the suit schedule properties are governed by Section 6 of Hindu Succession Act, whereas, in the present case, as per the averments of the plaint, the properties are governed by Section B of Hindu Succession Act, 1956. They have also claimed that the trral Court failed to consider the correct purport of the decision of Hon,ble Apex Court in "Vineeta Sharma Vs. Rakesh Sharma,,, the Hon,ble Apex Court was pleased to observe that the properties that have been orally partitioned before 09-09-2005 could still be exctuded from the applicabilrty of amended Section 6 of Hindu Successron Act. The

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(

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5SRN,] C.R P. No.156l of 2022

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Court below failed in considering that the cause of action having taken in 2001 and the suit is liable to be rejected since it is barred by limitation. They have also claimed that as per the plaint averments, plaintiffs failed to show any vested right in the suit schedule property. Therefore, there is no cause of action for filing the suit, as such, they sought for setting aside the order of the trial Court and prayed for rejection of the plaint in O.S.No.116 of 2077

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/. Heard both pa rties.

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B. Now the point for consideration is

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Whether the trial Court committed any irregular ty in dismissing the application filed by the petrtioners/defendants, if so, whether the order is liable to be set aside:

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It is a settled proposition of law that to decide an

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application under Section VII Rule 11 C.P.C., the Court must always consider the averments made in the plaint and there is no necessity to look into the defense taken by the defendants in their written statement or the averments they made in the application filed under Order VII Rule 11 C.P.C. In the case on hand, the respondents/plaintiffs filed a suit for partition of the schedule mentioned properties. The petitioner filed the above petrtron under Order VII Rule 11 C.P.C. on the ground that there was an

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SSRN,] C.R.P. No_1563 of 2022

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earlier partition and the respondents/plaintiffs were not in joint possession of the suit schedule property, thereby, they cannot pay fixed Court fees and they are supposed to pay Court fees on the value of the property which they claimed.

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The learned trial Court keeping the above legal position in mind, considered the averments made in the affidavit fired by the petitioners and counter of the respondents/plaintiffs. As per the plaint filed before the trial Court, it was the specific case of the respondents/praintiffs that the father of the respondents/praintiFFs acqulred the suit schedule properties during his Iifetime. The respondents being daughters have got an equal share over the suit schedule properties. There was no reference about the alleged partition of the suit schedule properties. The contention of the petitioners that their Father disposed some properties for performing the marriages of the respondents cannot be considered while deciding the petition under Order VII Rute 11 C.p.C. The other contention of the petitioners with regard to Court fees is an issue that can be decided only after the parties adduce their evidence.. It is For the respondents/plaintifFs to estabtish thelr joint possession over the suit schedule properties. In case they failed to do so, the Court while concluding the trial can direct them to

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SSRN,' C.R.P. No.1563 ol 2022

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pay deficit Court fees if any, but unless the parties produce their respective evidence, and only on the basis of averments made by the petitioners in their affrdavit, rt cannot be concluded that the respondents are out of possessron of the property. The contentions raised by the petitioners ln their written statement or in the affidavit filed in support or the petition cannot be considered for disposing the petition under Order VII Rule 11 C.p.C. The trial court rightly herd that the craim oi' petitioners about cause of action and limitation has to be decided based on the plaint averments. The alleged partition of schedule properties raised in the affidavit of the petitioners and/or in the written statements cannot be accepted ror deciding the petition under order 7 Rure 11 C.P.C. Therefore, the Court below righfly dismissed their application, as such, the revision is liable to be dismissed.

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In the result, C,R.p. is dismissed.

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Consequently, Miscellaneous applrcations if any, ar:e closed.

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. l,,J*q^Ep,sts.

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Sd/- V. KAVITH ASSISTANT REGIS R //TRUE COPY//

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SECTION OFFICER

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To,

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The Principal District^{Judge.Bhongir.}

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One CC to Sri NARESH^{REDDY CHINNOLLA, Advocal.} [OPUC]

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One CC to Sri^{A. KESHAVA REDDY, Advocate} [OPUC]

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One CC to Sri M.^{KRISHNA REDDY, Advocate} [OPUC]

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Two CD CoPies\ v

NJB

HIGH COURT

SSRN,J

DATED:1610312023

it\ r-4l-
t
2 B IPR 208
?

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JUDGMENT

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CRP.No.1563 of 2022

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DISMISSING THE CIVIL REVISION PETITION.

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FN,
><

Arakala Gali Reddy and another v. Karla Parmeela and 2 others

Case brief

What is this about?

What did the court decide?

Arakala Gali Reddy and another v. Karla Parmeela and 2 others

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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