IN THE COURT OF THE XXVII ADDITIONAL CHIEF JUDGE,
CITY CIVIL COURT, AT SECUNDERABAD.
Present : Sri. CH.A.N.Murthy,
XXVII Addl. Chief Judge
DATED THIS THE 07th DAY OF AUGUST, 2024
A.S. NO. 4 OF 2021
Between:
1. Mohammed Ali, S/o.Mohd. Shahabuddin, aged 50 years, Occ:Business.
2. Ahmed Ali, S/o.Mohd.Shahabuddin, aged 48 years, Occ:Business.-- Appellants
And
1.Smt.Sabera Begum, W/o.Mohd.Moulana, aged 52 years, Occ:Business. -- Respondent/Petitioner/Plaintiff
2. Mohd.Shahabuddin, S/o.Late Mohd. Imran Saheb (Died)
3. Imam Ali, S/o.Mohd.Shahabuddin, aged 46 years, Occ:Business.
4. Ibrahim Ali, S/o.Mohd.Shahabuddin, aged 44 years, Occ:Business.
5. Smt.Bismilla Begum, W/o.Chota Shahabuddin, aged 52 years, Occ:Housewife.
6. Smt.Hazira Begum, W/o.Jehangir, aged 40 years, Occ:Housewife.
7. Smt.Sakina Bee, W/o.Late Shahbuddin, aged 60 years, Occ:Household
8. Smt.P.Hymavathi, W/o.Late Sitarama Raju, aged 51 years, Occ:Household.
9. Smt.K.Madhavi, W/o.K.S.S.V.Kamaraju, aged:Major, Occ:Housewife.
10. P.Murali Krishna, S/o.Late Sitarama Raju, aged:Major, Occ:Business.
11. Sri.Balaji Real Estates, Rep., by its Managing Partners.
12. P.Venkateshwar Rao, S/o.Late Bhagwan Rao, aged 47 years, Occ:Business.
13. J.Venu Gopala Rao, S/o.J.Madhava Rao, aged 49 years, Occ:Business.
14. R.Madhava Rao, S/o.Purushotham Rao, aged 76 years, Occ:Retd. Employee, GPA holder of R.Vinitha, W/o.R.Anil Kumar, aged 45 years, Occ:Housewife.
15.Smt.E.Sreedevi, W/o.E.Madan Mohan Rao, aged 48 years. --Respondents
On Appeal against the Order passed in IA.No.57 of 2017 in
OS.No.243 of 1994, 02.11.2020 passed by the III Senior Civil
Judge, City Civil Court, Secunderabad.
IA. NO. 57 OF 2017
in
OS.NO. 243 OF 1994
Between:-
Smt.Sabera Begum, W/o.Mohd.Moulana, aged 52 years, Occ:Business. -- Petitioner/Plaintiff
And
1. Mohd.Shahabuddin, S/o.Late Mohd. Imran Saheb (Died)
2. Mohammed Ali
3. Ahmed Ali
4. Imam Ali
5. Ibrahim Ali
6. Smt.Bismilla Begum
7. Smt.Hazira Begum
8. Smt.Sakina Bee
9. Smt.P.Hymavathi 10.Smt.K.Madhavi.
11. P.Murali Krishna
12. Sri.Balaji Real Estates.
13. P.Venkateshwar Rao.
14. J.Venu Gopala Rao
15. R.Madhava Rao
16. Smt.E.Sreedevi.--Respondents
This appeal coming before me for final hearing and disposal in the presence of Sri A.Raju, Advocate for the Appellants and of Sri K.Madhava Rao, Advocate for Respondent No.1, respondent No.2 is abated, respondent Nos.3 to 6 and respondent Nos.8 to 11 & 13 remained exparte, Sri. P.Ramchander, Advocate for respndent No.12 and Sri M.Srinivas, Advocate for respondent Nos.14 & 15 and the matter having been heard and stood over for consideration till this day, this Court delivered the following:
J U D G M E N T
1. This is an Appeal preferred by the Appellants/Petitioners/Plaintiffs challenging the Judgment and Decree dated 02.11.2020 in IA.No.57 of 2017 in OS.NO.243 of 1994 passed by the III Senior Civil Judge,
City Civil Court, Secunderabad.
2.For the sake of convenience and for better understanding of facts, the parties to this appeal will herein after be referred to as arrayed in the case before the trial court.
3.The petitioner/plaintiff filed the petition in IA.No.57/2017 in
OS.No.243/1994 on the file of III Senior Civil Judge, City Civil Court,
Secunderabad U/Order XX Rule 18 CPC to pass a final decree in terms of the preliminary decree by dividing the suit schedule-I property into 6 equal shares and also one such share i.e. 1/6th share in the schedule property viz., land admeasuring 3.36 acres in the schedule property viz., land admeasuring 3.36 acres in
Sy.Nos.177/B and 178/C and 0.37 guntas in Sy.No.177 (part) situated at Kompally village, Qutubullapur Mandal, Ranga Reddy
District, to the petitioner by metes and bounds and deliver possession thereof to the petitioner.
4.The brief contentions of the petitioner/plaintiff in the petition are as follows:-
The petitioner is the plaintiff in the main suit; that the above suit is filed against the respondents herein for partition, separate possession and for rendition of accounts; that the court was pleased to pass a preliminary decree which was partly decreed on 30.06.2003; that the respondent No.2 herein preferred an appeal in
CCCA.No.115/2005 pending on the file of Hon’ble High Court of
Judicature of A.P., at Hyderabad; that there is no stay as against enquiry regarding division of property and rendition of accounts in pursuance of preliminary decree. Hence prayed to pass final decree in terms of preliminary decree by dividing the suit schedule property into 6 equal shares and allot one such share i.e. 1/6th share to the petitioner/plaintiff by metes and bounds and deliver possession thereof to the petitioner.
5.Respondent No.2 filed counter opposing the petition and contended that originally item No.1 of the schedule property belongs to his father and two co-owners and they have mortgaged the property with State Bank of Hyderabad, Chikkadpally branch,
Hyderabad (for short SBH) and obtained loan on it in the year 1986 and since the loan could not be cleared the SBH proposed to sell the item No.1 property in the market towards clearance of loan amount whereupon his father himself entered into agreement of sale dt.19.08.1995 with the respondent Nos.9 to 14 to sell only 3 acres 10 guntas and the respondent Nos.9 to 14 at the time of agreement of sale with the knowledge and consent of the petitioner/plaintiff, they have paid advance sale consideration directly to SBH,
Chikkadpally, Hyderabad; that later on his father died and thereafter the respondent Nos.9 to 14 have filed suit for specific performance and all other joint owners discussed the complications and in pursuance of the said agreement, he and all other respondents have executed registered sale deeds in favour of the respondent Nos.9 to 14 herein to clear the loan amount of Rs.25 lakhs approximately which includes the liability of the petitioner/plaintiff as per settlement deed dt.18.02.1989 in the year 2002 and also with the sole intention of giving respect to his father and his decision and to avoid bad name on his father and also to save the bad situation of attachment of the property; that what ever excess amount received were divided equally and the share amount of the petitioner/plaintiff was kept in the name of his mother and which is still available which would be paid to the petitioner/plaintiff.
It is the further contention of respondent No.2 that in fact, the respondent Nos.9 to 14 before purchase of the property gave paper publication and sought objections from the concerned persons, but the petitioner/plaintiff inspite of aware of the same and as she is liable to pay the loan amount of Rs.1,85,000/- which is attached her under the family settlement deed, she did not raise any objection for sale; that after sale of 3 acres 10 guntas in item No.1, the remaining land has been divided into 12 plots and each share holder received two plots and accordingly the petitioner/plaintiff was allotted plot No.4 admeasuring 325 sq.yards in Sy.No.177/B and another plot of land admeasuring 192 sq.yards bearing H.No.5-84 in
Sy.Nos.177/B & 178/C situated at Kompally Vilage, Quthbullapur
Mandal, R.R.District; that the petitioner/plaintiff herein having received the two plots, executed one gift settlement deed dt.11.12.1998 in respect of plot No.4 in favour of her husband
Mohd. Moulana under registered gift settlement deed dt.11.12.1998 who in turn sold to Mohd. Abdul Rahman under registered sale deed
dt 22.04.1999 for valid sale amount and another plot of land bearing
H.No.5-84 in favour of her sister Smt.Hajra Fathima under registered gift settlement deed dt.12.12.2003.
It is the further contention of respondent No.2 that his father had executed family settlement deed and before filing the suit by the petitioner/plaintiff itself, sold 5 acres 20 guntas to Smt.Bussa Sri
Lakshmi under registered sale deed dt.18.11.1993 and the plot covered under the sale deed was allotted to another member in the family settlement deed, but in order to clear the loan amount his father was left with no option except to sell the same and accordingly sold the property; that after sale transactions towards clearance of bank loan amount and no land have been left over in item No.1;that the petitioner/plaintiff inspite of having knowledge and receipt of the land after its division in item No.1 property, she deliberately not disclosed either during the trial or after the preliminary decree passed and atleast at the time of filing
IA.No.1102/2007 and other applications; that the Hon’ble High
Court of AP clearly stated that family settlement deed dt.21.02.1989 is binding on all the parties for allotment of the properties as well as clearing the liability attached to the said properties and the petitioner/plaintiff filed the main suit for partition of the properties as per family settlement deed; that the properties mentioned in the settlement deed shall be enjoyed by the parties concerned and also states that each individual party has to clear loan amount of
Rs.1,85,000/- as on 21.02.1989 by accepting the said individual liability, without allowing the other co-sharers to clear the loan amount; that the petitioner/plaintiff and others are entitled to 1/6th share in item No.1 property subject to clearance of liability as per settlement deed; that as per the preliminary decree only the parties have already divided the property after leaving the property sold for clearance of bank loan amount; that there is absolutely no land is available in order to divide the property as per preliminary decree passed in the main suit.
6.Respondent No.13 filed his counter denying all the averments made in the petition and contended that the respondent Nos.1 to 3 are claiming to be the absolute owners of land situated at Kompally village, Qutbullapur Mandal, R.R.District under registered sale deed offered the property for sale for total consideration of Rs.19 lakhs and an agreement of sale dt.19.08.1995 was executed; that on the date of agreement of sale, respondent No.11 and his father paid an amount of Rs.5 lakhs to the bank towards part payment of the loan amount and thereafter respondent No.1 died on 13.10.1995 and differences arose between the parties and the respondent No.11 and his father were constrained to file the suit for specific performance vide OS.No.132/1998 on the file of Principal District Judge,
R.R.District; that the father of respondent No.11 died on 27.11.2001 leaving the respondent Nos.9 to 11 as his legal heirs later the matter was settled and the respondent Nos.2 to 5 and 8 conveyed their undivided share in the land in favour of respondent No.11 vide registered sale deed in favour of the father of respondent No.11.
It is the further case of respondent No.13 that the respondent
Nos.9 to 14 were not aware of the proceedings pending in
OS.No.243/1994 before this court while negotiating the deal and
while obtaining conveyance deeds from respondent Nos. 1 to 5 & 8; that the respondent Nos.9 to 14 are the bonafide purchasers of the property and purchased the same after clearing outstanding loan amount with the bank and thereafter obtained layout sanction from
Grampanchayat and converted the land into plots and conveyed the same to third parties; that the respondents in collusion with each other and sole intention to cause wrongful loss have not raised the issue of non availability of land to the extent of 3 acres 10 guntas in item No.1 of the plaint schedule property; that the respondent Nos.
1 to 5 and 8 have sold the item No.1 of the suit schedule property to the respondent Nos.9 to 11; that this court has conducted enquiry with respect to the availability of item No.1 of the suit property for partition or to work out equities.
7. Basing on the rival contentions the Trial Court has framed the following points :-
1. Whether the petitioner/plaintiff is entitled for passing of a final decree, as prayed for by him ?
2. Whether the respondent Nos.9 to 16 are entitled for apportionment their claim in the final decree as claimed ?
8.Before the trial court, CW1 is examined and Ex.C1 to Ex.C3 are marked on behalf of the petitioner/plaintiff and whereas on behalf of the respondents/defendants no documents are marked.
9.After considering the oral and documentary evidence on record, the Trial Court allowed the petition by its Order and
Decreetal order dated 02.11.2020. Being aggrieved by the same, the petitioner/plaintiff preferred the present Appeal by challenging the same on various grounds, which are urged as follows :-
1. That the order and decreetal order of the trial court in passing the final decree by allowing IA.No.742/2001 is against the law, facts and the case is opposed to all cannons of justice equity and good conscience.
2. That the lower court did not go through the pleadings and averments in proper manner and also the entire record of commissioner viz., preliminary decree, report and objections raised by the appellants in proper manner and hurried manner passed final decree.
3. That in fact from March, 2020 onwards Covid-19 pandemic existing and court did not function physically and the subject matter also not taken up virtually in
WEBEX or physically the courts SOP-I started only in the month of December, 2020 and when enquired in section it came to light that orders were passed on 02.11.2020 and immediately copy application was filed and obtained certified copy of the order and decreetal order.
4. That the lower court judge misconstrued the facts and passed irregular order.
5. That the lower court judge failed to observe in proper and cogent manner and failed to look into the documents filed by the appellant in support of the objections filed against to the commissioner report.
6. That the lower court judge failed to look into the family settlement deed dt.21.02.1989 in which it is clearly mentioned that the respondent No.1 would entitled for the property subject to the liability, which is already available in the court file and the said fact also not considered and passed erroneous order and decree which is liable to be set aside.
7. That the lower court Judge failed to observe that earlier
Advocate commissioner was appointed by name
Smt.K.Ramya Sudha and when she filed report, objections were raised by filing all the certified copies of the documents in support of the objections and the lower court after perusing all the documents set aside the commissioner report and against another advocate commissioner Mr.M.Roop Kumar was appointed by issuing warrant commission on 12.03.2013.
8. That the lower court Judge failed to note that there are huge apartments in the schedule property and the commissioner as per his whims and fancies excluded the existing roads, mosque and grave yard part from the apartments and that the commissioner increased the existing road width and gave report for which no party gave any consent and thus in several aspects the report is unsustainable and liable to be rejected.
9. That the lower court Judge sought to have dismissed the petition when there is no acceptance of the commissioner report on the record and when there is no report clearly allotting the portions to the parties and that to when objections are pending and without deciding the objections passing of final decree and that to without complying with the provisions of CPC, the order is unsustainable and liable to be set aside.
10. Heard the learned counsel on both sides. Written arguments filed for learned counsel for appellants as well as counsel for respondent No.12. Reply arguments of learned counsel for respondent No.1 as well as counsel for respondent Nos.14 & 15 are also heard.
11. Now the point that arises for determination in the present Appeal is :-
“Whether the impugned Order and Decreetal
order 02.11.2020 in IA.No.57/2017 in
O.S.NO.243/1994 passed by the III Senior Civil
Judge, City Civil Court, Secunderabad suffers from
any illegality and warrants any interference (or)
not?”
12. POINT :-
It is the grievance of the appellants that the learned trial
Judge without going through the pleadings and averments and also
the entire record of Advocate Commissioner i.e. preliminary decree, report and objections raised by the appellants in a proper manner had passed the final decree in a hurried manner, even though the learned counsel for the appellants and the other respondents did not advance any arguments at any point of time that too when the stage of the case was only to consider the objections raised by the parties against the Advocate Commissioner’s report in
IA.No.57/2017; that in fact due to Covid-19 pandemic, courts did
not function physically and the subject matter was also not taken up virtually and the courts actually started in December, 2020 and when the counsel for the appellants enquired about this matter, it came to light that the learned Judge passed orders in the above
IA.No.57/2017 on 02.11.2020.
13.The learned counsel for the respondent No.12 also contended by way of his written arguments that the trial court has passed orders in IA.No.57/2017 on 02.11.2020 during the Covid-19 pandemic without giving any opportunity to the respondents and other defendants in the suit and it appears that in pursuance of the orders passed in Crp.No.2351/2019, the Hon’ble Trial court without hearing the respondents and other defendants passed orders on 02.11.2020 and no virtual hearing proceedings had taken place and the trial court has passed the orders in a harried manner to comply the orders of the Hon’ble High Court and without giving any opportunity to the respondents.
14.The learned counsel for the respondent No.12 contended that the time frame fixed by the Hon’ble High Court does not mean that without following the procedure by hook or crook the application has to be disposed off and after receiving orders, no date was fixed by the trial court for physical hearing or virtual hearing the application and if opportunity was given to the respondents, they would have marked the documents relied on and filed by them on 18.12.2018 during the course of enquiry.
15.A perusal of the orders passed by the Hon’ble High Court in
CRP.No.2351/2019 dt.27.11.2019 which was preferred by the
petitioner/plaintiff therein and the respondent No.1 herein seeking for expeditious disposal of the final decree petition in
IA.No.57/2017 in OS.No.243/1994 wherein the Hon’ble High Court
passed the orders.
16.From a perusal of the directions given by the Hon’ble High
Court in CRP.No.2351/2019 dt.27.11.2019, it is crystal clear that the Hon’ble High Court has directed the Trial court, to dispose of the final decree petition in IA.No.57/2017 within a period of two weeks from the date of receipt of the said order and in compliance of such directions given by the Hon’ble High Court to the Trial court, the
Trial court is constrained to dispose of the final decree petition in
IA.No.57/2017 and it cannot be said that under the guise of such
directions of the Hon’ble High Court, the trial court has disposed of the final decree petition in a hurried manner.
17.The contention of the learned counsel for the respondent
No.12 that the time framed fixed by the Hon’ble High Court does not mean that without following the procedure the application has to be disposed of by hook or crook cannot be accepted and such a contention of the learned counsel is far fetched. In the said CRP, the directions given by the Hon’ble High Court are binding to the trial court as well as to all the parties concerned to the said ‘lis’ and it shall have to be borne in mind that such directions are very much binding to both parties to the final decree petition and under the guise of Covid-19 pandemic, the appellants and the respondent
No.12 cannot take shelter and cannot procrastinate the matter on that premise. Both the appellants and the respondent No.12 ought to have taken steps before the Trial court and ought to have cooperated with the Trial court in disposing of the final decree petition.
18. It is needless to mention that as per the SOP guidelines issued by the Hon’ble High Court, dt.16.03.2020 and the guidelines issued from time to time during the period of pandemic Covid, it is the duty of the parties to seek the online hearing of the matter from the trial court wherever it is necessary, but it appears, in the instant case the appellants as well as respondent No.12, inspite of such directions given by the Hon’ble High Court, did not make any efforts and did not make any representations before the Trial court, for fixation of online hearing and it appears that the appellant as well as respondent No.12 have observed tactful silence to throw the blame on to the court as if they were deprived of such an opportunity by taking shelter of Covid-19. But the instant orders have been passed by the Trial court on 02.11.2020 and the matter has been placed
before the Trial court on 15.10.2020. A perusal of the docket order
dt.15.10.2020 in the final decree petition evidences the same and such a stage can be noticed by both the parties from the online and in view of the orders passed by the Hon’ble High Court in the CRP by fixing a time limit of two weeks for disposal of the final decree petition, the appellants and the respondent No.12 are duty bound to cooperate with the trial court, but the appellant as well as respondent No.12 have slept over the matters under the guise of
Covid-19 pandemic. They ought to have been vigilant and ought to have knocked at the doors of the Trial court for fixation of online hearing in the absence of the physical hearing due to Covid-19 guidelines but they did not do so and throwing the blame on to the trial court that it did not give them an opportunity and passed the orders in a hurried manner cannot be accepted under any stretch of imagination.
19. Thus such contentions advanced by learned counsel for appellants as well as the learned counsel for respondent No.12 that they were deprived of the opportunity by the Trial court for advancing their arguments cannot be accepted.
20.It is the specific contention of the learned counsel for the appellants as well as the counsel for respondent No.12 that the Trial court did not consider the objections raised on the commissioners report and passed orders. In this case, the said Advocate
Commissioner, who has executed the commissioner warrant and filed his report has been examined as CW.1. Infact, the Advocate
Commissioner was appointed by the court for division of the petition schedule properties in terms of the preliminary decree passed by the
Trial court on 12.03.2013 and after execution of the commissioner warrant the Advocate commissioner has filed his report on 03.03.2014. A perusal of the commissioner’s report clearly reveals that the petitioner and respondent Nos.9 to 14 have submitted their work memos before the Advocate commissioner and after considering the work memos, the Advocate commissioner has made the proposed allottment of plots mentioned in para No.10 of the
Advocate commissioner’s report. Subsequent to filing of the
Advocate commissioners report, the Advocate commissioner was summoned and examined as CW.1 and the Advocate commissioner was also cross examined by the learned counsel for respondent
Nos.9 to 14 (counsel for respondent No.12 herein).
21. The Advocate commissioner who deposed as CW.1 stated that he has taken the assistance of surveyor for measuring the land and based on such measurements only, he has divided the entire property into “A to J” parts and basing on the decree, he suggested 6 equal shares clubbing some of them in smaller extents and according to him each sharer has got 3112.5 sq.yards and the extent of internal roads admeasuring 2983 sq.yards and mosque in an extent of 1062 sq.yards were left undivided and he has considered that the land can be divisible is 18,675 sq.yards our of total 22,720 sq.yards and thereby he prepared Ex.C1 report.
22.During the course of cross examination by the learned counsel
for respondent No.12, CW.1 stated that after 27.07.2013 he has not
fixed any meeting between the parties and he did not inform about the plan prepared under Ex.C2 based on Ex.C3 to all the parties
before his report and he has stated that the same is not required.
23.A perusal of the observations made by the Trial court in para
No.15 of its Judgment, it is crystal clear that respondent No.2 (appellant No.1 herein) has raised objection that they are entitled for 1/6th share to the item No.1 subject to the clearance of the liability as per the settlement deed and he has submitted that as per the preliminary decree, the property has already been divided leaving his properties sold for clearance to bank loan amount and even the property of the petitioner No.1 of item No.1 was already sold by her to the purchasers.
24.The Trial court has observed that except oral assertions, the respondent No.2 did not place any documents before the court and it was also observed that the respondent No.2 has not even placed any documents to show that the petitioner/plaintiff having received the said two plots executed one gift settlement deed dt.11.12.1998 in respect of plot No.4 in favour of her husband Mohd. Moulana under registered gift settlement deed dt.11.12.1998 who in turn sold to Mohd. Abdul Rahman under registered sale deed dt.22.04.1999.
25.The Trial court in para No.19 of its Judgment categorically held that the respondent No.9 to 14 are impleaded in the suit and respondent Nos.9 to 14 got marked Exs.A1 to A5 documents on which they relied that they are the purchasers of the part of the suit schedule property and respondent Nos.15 & 16 are the subsequent purchasers of the suit schedule property from respondent Nos.9 to 14.
26.In para No.21 of its Judgment the Trial court observed that the report of the Advocate commissioner shows that the total land available for partition with metes and bounds into six shares which includes the land for mosque, graveyard and road admeasuring 22,720 sq.yards, and in all the Advocate Commissioner has partitioned the land with metes and bounds for defendant Nos.2 to 8 of which defendant Nos.6 to 8 are the legal heirs of defendant No.1 and it was observed that respondent Nos.9 to 14 are seeking the land of 3 acres 10 guntas out of 3 acres 36 guntas as per preliminary decree and he placed reliance on Exs.A1 to A5 which are not disputed by other respondents as they were set exparte in the petition and they did not contest the final decree proceedings.
27.The Trial court in crystal clear terms at para No.22 has observed that regarding the plea of respondent Nos.9 to 14 who are seeking the share of 3 acres 10 guntas out of 3 acres 36 guntas when converted 3 acres 10 guntas comes to 15,730 sq.yards and the total extent of 3 acres 36 guntas is converted it comes to 18,876 sq.yards and after deducting the 1/6th share of the plaintiff i.e. 3112.50 sq.yards from 18,876 sq.yards the rest of the land has to be adjusted towards the share of the respondent Nos.9 to 14. The trial court held that basing on the documentary evidence placed
before it vide Exs.A1 to A5, the extent of 3 acres 10 guntas was
allotted to respondent No.9 to 14 and as per the Advocate commissioner’s report, plot No.B in an extent of 3112.5 was allotted to the plaintiff. The trial court has categorically observed that as the other respondents have already alienated the property to an extent of 3 acres 10 guntas in favour of respondent No.9 to 14, no land remains to other respondents for partition out of 177/B and 178/C.
28.As rightly contended by the learned counsel for the petitioners there is no infirmity or illegality in such findings rendered by the Trial court and admittedly after realization of the property to an extent of 3 acres 10 guntas there remains no land to the other respondents. The contentions of the learned counsel for appellants as well as the learned counsel for respondent No.12 that no opportunity was given to them and their objections to the commissioners report were not taken into consideration by the Trial court cannot be accepted and as rightly held by the Trial court, there is no ambiguity in the report filed by the Advocate commissioner and that he has executed the warrant entrusted to him for dividing the suit schedule property by metes and bounds in terms of the preliminary decree.
29.The objections canvased by the learned counsel for the appellants as well as learned counsel for the respondent No.12
before the appellate court ought to have been placed by them
before the Trial court and even a perusal of cross examination of
CW.1 reveals that he did not inform the memo of the plaintiff dt.01.09.2013 to other parties and it is evident that it is not necessary to inform each party separately because he is filing his full report before the court. CW.1 in crystal clear terms stated that he knows about drawing of lots procedure before allotment.
Admittedly CW.1 was cross examined on 24.04.2018 i.e. much subsequent to the commissioner’s report filed by the Advocate commissioner on 03.03.2014.
30.Even from a perusal of the preliminary decree passed by the
Trial court, it is clear that a preliminary decree was passed granting 1/6th share to the plaintiff and 1/6th share to the defendant Nos.2 to 5 and the legal representatives of defendant No.1 who are defendant Nos.6 to 8 in item No.1 of the plaint schedule and that the claim in respect of other properties was dismissed. Thus the
Advocate commissioner has rightly allotted 1/6th share to the plaintiff i.e. admeasuring 3112.50 sq.yards out of 18876 sq.yards and the Trial court based on such report of the Advocate commissioner has allotted 1/6th share to the plaintiff out of 3 acres 36 guntas which was converted, it comes to 18,876 sq.yards and allotted 3112.5 sq.yards to the respondent No.1/plaintiff being the 1/6th share of 18876 sq.yards and the Trial court clearly observed that the rest of the land has to be adjusted towards the share of other respondents.
31.Thus as stated by me earlier, there is no illegality or infirmity in the findings rendered by the Trial court based on the Advocate commissioners report and the evidence of the Advocate
Commissioner as CW.1 and the Trial court in compliance of the directions passed by the Hon’ble High Court in CRP.No.2351/2019 to dispose of the final decree petition within a period of two weeks from the date of the order, as per the time limit prescribed by the
Hon’ble High Court and the appellants as well as the respondent
No.12, having slept over the matters without obeying the orders of the Hon’ble High Court passed in the CRP and observed tactful silence at the relevant point of time and now came up with the present appeal by levelling bald and vague allegations against the
Trial court and hence such contentions of the learned counsel for the appellants as well as the learned counsel for respondent No.12 cannot be accepted.
32.In the result, the appeal is dismissed and the orders passed by the Trial court in IA.No.57/2017 in OS.No.243/1994 dt.02.11.2020 are hereby confirmed. No costs.
Partly typed to my dictation and partly dictated to the Personal Assistant, transcribed by her, corrected and pronounced by me in open Court on day the 07th day of August, 2024.
XXVII ADDITIONAL CHIEF JUDGE,
CITY CIVIL COURT, SECUNDERABAD.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED – NIL
XXVII ADDITIONAL CHIEF JUDGE,
CITY CIVIL COURT, SECUNDERABAD.