Sri V.Vara Prasad

I.A.No.864/2015 in O.S.No.1463/20141

IN THE COURT OF THE V ADDITIONAL DISTRICT & SESSIONS JUDGE

RANGAREDDY DISTRICT AT L.B.NAGAR, HYDERABAD, TELANGANA

PRESENT: Sri.N.SOLOMON RAJU,

V ADDITIONAL DISTRICT & SESSIONS JUDGE,

RANGAREDDY DISTRICT AT LB NAGAR

Wednesday, the Twenty Fourth day of October, Two Thousand Eighteen

INTERLOCUTORY APPLICATION No.864/2015 IN ORIGINAL SUIT No.1463/2014 Between: G.Madhavareddy, S/o.G.Chandrareddy, Age: 53 yrs, Occ: Agriculture, R/o.Enkepally Village, Moinabad Mandal, Rangareddy District …Petitioner/Defendant No.1 AND

01.K.Nagabhushanam, S/o.late.K.Narsimha, Age: 51 yrs, Occ: Business, R/o.Plot No.1-47, Peermcherla Village, Rajendranagar Mandal, Rangareddy District

02.M.R.Khuddus, S/o.Mohd.Mansoor Ali, Age: 50 yrs, Occ: Business, R/o.H.No.6-3-1177/A/32, Begumpet, Hyderabad

...Respondents No.1 & 2/Plaintiffs

03.Narsimhulu, S/o.Narsimha, Age: 57 yrs, Occ: Business, R/o.H.No.9-1-364/B/62, Gandhi Nagar, Langer House,

Hyderabad ...Respondent No.3/Defendant No.2

Respondent No.3/Defendant No.2 is not necessary party to this petition

This Interlocutory Application is came before me for final hearing in the presence of M/s.C.Damodarreddy, Counsel for the Petitioner and M/s.Deekonda Ravinder, Counsel for the Respondents and upon perusal of the material papers on record and the matter stood over for consideration till this day, this Court delivered the following: :: O R D E R ::

01.This Interlocutory Application is filed by the defendant

No.1 Under Order 7 Rule 11 (a) r/w. Section 151 CPC to reject the plaint in O.S.No.1463/2014 on the ground that the plaint does not disclose any cause of action and is not maintainable.

02.As per the petitioner/defendant No.1 the suit filed by

I.A.No.864/2015 in O.S.No.1463/20142 the plaintiff is highly deplorable and ought to not have been numbered at threshold and the suit does not disclose any cause of action and not maintainable under law and liable to be dismissed with exemplary costs.

03.The petitioner/defendant No.1 is the absolute owner and possessor of the land admeasuring 2-10 guntas in Sy.No.63 situated at Bandlaguda Village described as suit schedule property having purchased the same from S.V.Ramachandra Raju vide document No.5190/2003 for valid sale consideration and since then he was in continuous possession and enjoyment of the same and he executed several gift deeds and registered sale deeds. The plaintiff filed present suit for specific performance of Agreement of

Sale dt.04-06-2003 alleging that the defendant No.2 executed the said Agreement of Sale as General Power of Attorney Holder of the first defendant and in fact he has not executed any such General

Power of Attorney and the suit is filed in collusion between the plaintiffs and the defendant No.2.

04.The plaintiffs filed counter-affidavit of second plaintiff contending that the petition filed by the defendant No.1 is not maintainable either in law or on facts and that the petitioner has not made out any grounds to reject the plaint as envisaged under

Order 7 rule 11 (a) CPC. The second defendant represented to them that he is the General Power of Attorney Holder of the defendant No.1 who was absolute owner and possessor of the suit schedule property and offered to sell the said suit schedule property for Rs.11,25,000/- and the second defendant on behalf of

I.A.No.864/2015 in O.S.No.1463/20143 the first defendant received the advance sale consideration of

Rs.3,00,000/- and subsequently received Rs.3,10,000/- on different dates under separate receipts and the plaintiffs have to pay the balance of sale consideration of Rs.5,15,000/- and the plaintiffs demanded the second defendant several times and he postponed the issue and finally gave evasive reply and the plaintiffs have always been ready and willing to pay the balance of sale consideration and to obtain the registered sale deed and the plaintiffs got issued legal notice to both the defendants and second defendant received the said notice and the notice sent to the defendant No.1 returned with an endorsement not claimed.

Hence this suit is filed.

05.The respondents/plaintiffs further contended that earlier the defendant No.2 filed O.S.No.414/1996 on the file of the learned I Additional Senior Civil Judge, Rangareddy District at LB

Nagar claiming as General Power of Attorney Holder of the second defendant and the said suit was settled out of the Court and the said suit was withdrawn and dismissed on 28-07-1998. Later the registered sale deed was executed in favor of the defendant No.1 vide document No.5190/2003 and the present Interlocutory

Application is filed to delay the proceedings and prays the Court to dismiss the petition with costs, in the interests of Justice.

06.Heard on either side.

07.The learned counsel for the petitioner and respondents putforth their respective contentions during the course of hearing.

In support of their contention the respondents, relies on the

I.A.No.864/2015 in O.S.No.1463/20144 following decision:

01.Mayar (H.K.) Limited and others Vs. Onwers and parties,

Vessel M.V. Fortune Express and others reported in 2006 (2) ALD 36 SC.

02.Mohan Singh and others Vs. R.Venkataramana and others reported in 2014 (2) ALD 1 (DB).

03.Kasani Narsimulu Vs. Sathagowni Srinivas Goud and others reported in 2014 (2) ALD 149.

08.On hearing both the sides, the point that would arise for consideration herein is: Whether the plaint in O.S.No.1463/2014 is liable to be rejected under order 7 rule 11 (a) of CPC ?

DISCUSSION ON POINT:

09.The first defendant filed present Interlocutory

Application for rejection of plaint in O.S.No.1463/2014 on the ground that the plaint does not disclose any cause of action which is covered under Order 7 Rule 11 (a) CPC. As seen from the plaint, the plaintiffs No.1 and 2 filed the suit in O.S.No.1463/2014 against the defendant No.1 and 2 for specific performance of Agreement of Sale dt.14-06-2003 said to have been executed by the defendant No.2 as General Power of Attorney Holder of the defendant No.1, and alternatively for return of Rs.6,10,000/- along with interest @ 24 % per annum from the date of Agreement till the date of payment and for such other reliefs.

10.The main contention of the petitioner/defendant No.1 is that he has not executed any General Power of Attorney in favor of the defendant No.2 or in favor of anybody and the present suit is

I.A.No.864/2015 in O.S.No.1463/20145 filed in collusion between the plaintiffs and the defendant No.2.

11.As per the settled law, and as held in Mayar (H.K.)

Limited and others's case and Kasani Narsimulu's case cited supra

for the respondents, while dealing with the provisions of Order 7

Rule 11 CPC, the Court has to take the pleadings in the plaint and the plaint cannot be rejected on the basis of averments made in the written statement filed by the defendants, or in the application filed for rejection of plaint. Further the Court has to read entire plaint to see whether it discloses the cause of action. It is further held in all the three rulings filed on behalf of the respondents that the cause of action is bundle of facts which are required to be proved for obtaining the relief. For the said purpose, material facts are required to be stated but not the evidence. So long as the plaint discloses some cause of action which requires determination by the Court, the plaint cannot be rejected with the opinion of the

Judge that the plaintiff may not succeed in the suit. It is not in

dispute that the first defendant is the absolute owner and possessor of the suit schedule property. The Agreement of Sale filed by the plaintiffs/respondents reveals that the second defendant executed the said Agreement of Sale claiming himself as General Power of Attorney Holder of the first defendant. The fact whether the defendant No.2 was General Power of Attorney

Holder for the defendant No.1 as on the date of execution of the

Agreement of Sale is required to be determined during the course of trial, with reference to the contentions raised by the first defendant in his written statement to be filed by the first

I.A.No.864/2015 in O.S.No.1463/20146 defendant.

12.On reading the entire plaint it discloses cause of action and basing on such cause of action the plaintiffs sought the above said reliefs in the present suit. Since the plaint discloses the cause of action to file the present suit and the contentions raised by the first defendant in the present Interlocutory Application are required to be determined after filing written statement and during the course of trial. The plaint in O.S.No.1463/2014 is not liable to be rejected at threshold and the Interlocutory Application filed by the first defendant is not maintainable and the same is liable to be dismissed.

13.In the result, this Interlocutory Application is dismissed, no Order as to costs.

Dictated to the Personal Assistant, typed by him, corrected

and pronounced by me in the Open Court on this Wednesday, the Twenty Fourth day of October, Two Thousand Eighteen.

V ADDITIONAL DISTRICT & SESSIONS JUDGE

RANGA REDDY DISTRICT AT LB NAGAR

APPENDIX OF EVIDENCE

EXHIBITS MARKED

NIL

V ADDITIONAL DISTRICT & SESSIONS JUDGE

RANGA REDDY DISTRICT AT LB NAGAR

Compared by me:

I.A.No.810/2017 in O.S.No.874/20161

IN THE COURT OF THE V ADDITIONAL DISTRICT & SESSIONS JUDGE

RANGAREDDY DISTRICT AT L.B.NAGAR, HYDERABAD, TELANGANA

PRESENT: Sri.N.SOLOMON RAJU,

V ADDITIONAL DISTRICT & SESSIONS JUDGE,

RANGAREDDY DISTRICT AT LB NAGAR

Monday, the Nineteenth day of November, Two Thousand Eighteen

INTERLOCUTORY APPLICATION No.810/2017 IN ORIGINAL SUIT No.874 / 2016 Between: Dr.Ravanth Jaiswal, S/o.Dr.Surya Prakash Jaiswal, Age: 34 yrs, Occ: Medical Practitioner, R/o.H.No.14-4-319, Sadhabhavana Heights,

Begum Bazar, Hyderabad ...Petitioner/Plaintiff

AND

Mr.S.Srinivasareddy, S/o.S.Ramreddy, Occ: Business, R/o.Flat No.104, Nandavanam Apartments, Beside Raja Pushpa Apartments, Pillar No.118, Attapur, Hyderabad-48 …Respondent/Defendant

This Interlocutory Application came before me for final hearing in the presence of Sri.Pawan Kumar Agarwal, Counsel for the Petitioner and Sri.M.Vishwanathreddy, Counsel for the Respondent and upon perusal of the material papers on record and the matter stood over for consideration till this day, this Court delivered the following:

:: O R D E R ::

01.The plaintiff filed this Interlocutory Application Under

Order 6 Rule 17 r/w. Section 151 CPC to amend the plaint as sought in the affidavit and the petition, in the interests of Justice.

02.As per the petitioner/plaintiff he filed suit for specific performance of Agreement of Sale dt.27-12-2014 and by the date of filing of the suit he paid total amount of Rs.65,00,000/- to the defendant towards part of sale consideration and when the settlement initiated for the settling the matter during the pendency of the suit he paid further amount of Rs.3,00,000/- to the defendant through cheque bearing No.000037 dt.18-10-2016

I.A.No.810/2017 in O.S.No.874/20162 drawn on HDFC bank, Begum Bazar Branch, Hyderabad and the same was duly got encashed by the respondent/defendant.

03.In pursuance of the settlement even a sale deed was also got prepared and he even paid stamp duty of the sale deed through Challan dt.10-11-2016, but the defendant illegally refused to complete the sale transaction and he even got issued notices to his tenants and in the notices issued to one of his tenant the respondent illegally claimed that the amount of Rs.3,00,000/- was paid by his tenant towards security deposit and as such the allegations are made with malafide intention and it is just and necessary that the plaint is to be amended by adding paragraph

No.4 (a) and paragraph No.13 (a), in view of the subsequent events and developments that took place after filing of the suit.

04.The respondent/defendant filed counter-affidavit denying the material averments of the Interlocutory Application, it is contended that in fact, the alleged cheque bearing No.000037 dt.18-10-2016 was issued by Nandalal Jaiswal towards six months rent for duplex i.e., first and second floor of the suit schedule property, who occupied the said premises as tenant and that this respondent has caused legal notice dt.20-06-2017 for Nandalal

Jaiswal for eviction and arrears of rent who has replied by denial of the jural relationship.

05.In fact this respondent do not know that the said tenant who is relative of the petitioner who occupied as a tenant issued the said cheque, but this respondent being not educated person had not observed the cheque who had issued and encashed the

I.A.No.810/2017 in O.S.No.874/20163 same. Now after eight months after encashment the petitioner came with new version as if the said cheque amount was paid for the settlement, which is absolutely false. This respondent has not received any part of sale consideration, during the pendency of the suit. No new cause of action can be permitted which will definitely cause injury to the respondent and prays this Court to dismiss the petition with costs.

06.Heard on either side.

07.The point that would arise for determination is: Whether the amendment of the plaint as sought by the petitioner / plaintiff can be allowed ?

DISCUSSION ON POINT:

08.Before dwelving into the facts of the present matter, it is felt proper to note the position of the law on amendment of the pleadings. As per the ratio laid down by the Hon'ble Division

Bench of Andhra Pradesh High Court in Jangili Venkateswarlu

and others Vs., Bandaru Omkaraiah and another reported

in 2003 (3) ALT 612, where the relief is barred by limitation, where prejudice is caused to the other side and where it alters the character of the suit, where it introduces a new cause of action, an amendment cannot be allowed. Further as per the ratio laid down in B.Lakshmi Vs. M.Prakash reported in 2003 (2) Andhra

Weekly Reporter 123 (A.P.), where proposed amendment has effect of withdrawing admission made in the pleadings it would certainly result in prejudice to the other side and the same is not permissible. As per the ratio laid down in E.Prasad Goud Vs.

I.A.No.810/2017 in O.S.No.874/20164

B.Laxman Goud reported in 2003 (3) ALD 386 AP, the amendment taken in respect of the subsequent facts and events that are taken place subsequent to the filing of the suit can be allowed irrespective of the fact that the same is sought after commencement of the trial.

09.Coming to the facts of the present matter the proposed amendment is sought in relation to the facts said to have been occurred subsequent to the filing of the suit. As seen from the record, the suit is filed for specific performance of Agreement of sale dt.27-12-2014 and as on the date of filing of the suit the plaintiff paid a sum of Rs.65,00,000/- to the defendant towards part sale consideration and the suit is at the stage of framing issues.

10.According to the petitioner / plaintiff there was an attempt for settlement before the elders between the parties, in pursuance of which he paid a sum of Rs.3,00,000/- through cheque bearing No.000037 dt.18-10-2016 drawn on HDFC Bank and the same was encashed by the respondent/defendant. In spite of the preparation of the sale deed and payment of required stamp duty, the respondent / defendant refused to complete the sale transaction. Therefore, the said subsequent events are to be added in the plaint as paragraph No.4 (a) and 13 (a) of plaint.

11.On the other hand, it is the contention of the respondent / defendant that he did not receive any part of sale consideration during the pendency of the suit, though he encashed the cheque bearing No.000037 dt.18-10-2016 he did not

I.A.No.810/2017 in O.S.No.874/20165 specifically observe who issued the said cheque and he was under the impression that one of the tenants had issued the said cheque towards payment of six months rent.

12.It is an admitted fact from reading the contents of the petition and counter that the petitioner / plaintiff during the pendency of the suit issued cheque bearing No.000037 dt.18-10- 2016 for Rs.3,00,000/- and the defendant had encashed the said cheque. Whether the said cheque was issued by the plaintiff towards part of sale consideration in pursuance to the settlement arrived before the elders as pleaded by the plaintiff / petitioner, or whether the same was paid by tenant through the plaintiff towards six months rent as pleaded by the respondent / defendant, is required to be determined after full-fledged trial by giving sufficient opportunity to both parties.

13.Admittedly, the proposed amendment relates to the events that are taken place subsequent to the filing of the suit.

Even if the amendment is allowed, the respondent / defendant gets an opportunity to file additional written statement and put up contest on the said facts. The proposed amendment does not alter the character of the suit but is in consonance to the facts of the plaint already averred and no new cause of action is being introduced by the said amendment.

14.In the light of the facts discussed supra, it cannot be said that prejudice would be caused to the defendant especially where no admission is taken away by way of proposed amendment. In the light of the aforesaid discussion, and in view

I.A.No.810/2017 in O.S.No.874/20166 of the ratio in E.Prasad Goud's case, I hold that the amendment sought by the plaintiff can be allowed as prayed for. Accordingly, this point is answered.

15.In the result, this Interlocutory Application is allowed, there is no Order as to costs.

Dictated to the Personal Assistant, typed by him, corrected

and pronounced by me in the Open Court on this Monday, the Nineteenth day of November, Two Thousand Eighteen.

V ADDITIONAL DISTRICT & SESSIONS JUDGE

RANGAREDDY DISTRICT AT LB NAGAR

APPENDIX OF EVIDENCE: NIL

V ADDITIONAL DISTRICT & SESSIONS JUDGE

RANGAREDDY DISTRICT AT LB NAGAR

Compared by me:

1

IN THE COURT OF SPL. SESSIONS JUDGE FOR TRIAL OF CASES

UNDER SC/ST(POA) ACT-CUM-VII ADDITIONAL DISTRICT &

SESSIONS JUDGE: AT L B NAGAR :RANGA REDDY DISTRICT

PRESENT: - SMT. A.BHARATHI

SPL. SESSIONS JUDGE FOR TRIAL

OF CASES UNDER SC&ST (POA) ACT

CUM VII ADDL. DIST. & SESSIONS JUDGE,

RANGA REDDY DISTRICT AT L.B.NAGAR

Dated this the 30th day of August, 2017

O.S.No.445 of 2017

BETWEEN:- V. Vinod Kumar, S/o. V.S. Shekar, Aged 32 years, Occ: Business, R/o.H.No.Plot No.252, Hema Nagar Colony, Nacharam, Hyderabad.….Plaintiff

AND

K. Harish Reddy, S/o. K. Sri Ram Reddy, Aged 37 years, Occ: Business, R/o. H.No.3-62, Nadergul village, Saroornagar Mandal, Ranga Reddy District.…Defendant

This Suit coming before me for final hearing on 23-08-2017 in the presence of Sri B. Sudhakar Reddy, Advocate for the plaintiff and defendant remained exparte and having stood over for consideration, the Court delivered the following:

J U D G M E N T

1.This suit is filed seeking specific performance of agreement of sale directing the defendant to execute registered sale deed in favour of the plaintiff.

2. Brief averments of the plaint are that the defendant is absolute owner and possessor of agricultural land admeasuring Ac.4.00 gts situated at Shivaraj

Bahadur Bagyat Durga Bavi village, Saroornagar Mandal, RR District by virtue of Registered sale deed, vide Doc.No.1209 of 1997, Dt.28-01-1997 and approached the plaintiff to sell part of his agriculture land i.e., an extend of

Ac.2.00 gts out of Ac.4.00 gts in Sy.No.71 for a total sale consideration of

Rs.1,28,50,000/- and he agreed to purchase the same. The defendant executed an agreement of sale Dt.23-02-2015 in favour of the plaintiff and the plaintiff 2 paid an amount of Rs.1,08,50,000/- towards part sale consideration and the defendant executed separate receipt acknowledging the same. The defendant promised the plaintiff that he would execute registered sale deed in his favour or his nominee as and when demanded by the plaintiff. It is further provided in the agreement that the plaintiff should pay the balance of sale consideration of

Rs.20,00,000/- at the time of registration of sale deed in respect of the suit schedule property on or before 30th April, 2015. On the contrary to the above understanding, Defendant demanded and received Rs.9,00,000/- on 11-03- 2015 through cheque No.150793 and drawn on ICICI Bank, Nallakunta

Branch, Hyderabad and demanded and received Rs.3,00,000/- on 13-03-2015 through transfer from ICICI bank account to his account and further demanded and received an amount of Rs.3,00,000/- by way of cash on 25-03-2015 and again demanded and received an amount of Rs.4,00,000/- by way of cash on 30-03-2015 and the defendant received part of balance sale consideration of

Rs.1,27,50,000/- from the plaintiff and the defendant acknowledged the same and executed separate receipts.

3. Plaintiff further submitted that he made several requests and demands to the defendant to execute and register the sale deed in his favour in respect of suit schedule property, but the defendant postponed the same on one pretext or the other, due to escalation the process in viscidity in the recent past and the defendant violating the terms and conditions in agreement of sale as agreed upon. The plaintiff learnt that the defendant is making clandestine attempts to sell away the schedule property in favour of 3rd parties with a malafied intention.

4. Plaintiff further submitted that the defendant have entered into agreement of sale and received substantial sale consideration of

Rs.1,27,50,000/- out of Rs.1,28,50,000/-, but dodging execution of sale deed on one pretext or the other and the plaintiff is always ready and willing to 3 perform his part of contract by paying remaining sale consideration of

Rs.1,00,000/- and by bearing necessary stamp duty and registration charges for registration of the sale deed.

5. The Plaintiff further submitted that he got issued legal notice Dt.06- 06-2015 along with draft sale deed calling upon the defendant to receive the balance sale consideration and to execute register sale deed in respect of suit schedule property in favour of the plaintiff, having received the notice by the defendant, neither issued any reply nor complied the demand made in the notice and he did not come forward to execute registered sale deed as per the agreement of sale Dt.23-02-2015 in favour of the plaintiff and the said agreement is still subsisting.

6. It is further submitted that after receipt of the notice, the defendant approached the plaintiff and requested not to initiate any action for execution of sale deed and he would execute sale deed within short period. Though the plaintiff waited considerable time, but the defendant did not come forward to execute register sale deed by receiving balance of consideration of

Rs.1,00,000/- and his intention is only to protract the litigation to harass the plaintiff. Hence the suit.

7. The Defendant remained exparte.

8. The plaintiff got examined himself as PW1 and got marked Exs.A1 to A11.

Ex.A1 is certified copy of register sale deed Doc.No.1209/1997, Dt.28-01-2015,

Ex.A2 is Original agreement of sale Dt.23-02-2015, Ex.A3 is Original cash receipt,

Dt.23-02-2015, Ex.A4 is Original cash receipt, Dt.11-03-2015, Ex.A5 is Original cash receipt, Dt.13-03-2015, Ex.A6 is Original cash receipt, Dt.25-02-2015, Ex.A7 is Original cash receipt, Dt.30-03-2015, Ex.A8 is Legal notice along with draft sale deed, Dt.06-06-2015, Ex.A9 is postal receipt 1 and 2, Dt.06-06-2015, Ex.A10 is 4 acknowledgment Dt.12-06-2015 and Ex.A11 is original encumbrance certificate

Dt.17-04-2017.

9. Heard arguments on behalf of plaintiffs.

10. Now, the point for consideration is whether the plaintiff is entitled for specific performance as prayed for?

11. PW1 reiterated in his chief evidence affidavit the same averments as mentioned in the plaint. The documents filed under Exs. A1 to A11 supports the case of Plaintiff. As there is no contra evidence, basing on the oral and documentary evidence adduced by the plaintiff, the point is held in favour of the plaintiff.

12. In the result, the suit is decreed with costs and the plaintiff is entitled for specific performance of suit schedule property i.e., agricultural land Ac.2.00 gts out of Ac.4.00 gts in Sy.No. 71, Shivaraj Bahadur Bagyat Durga Bavi village,

Saroornagar Mandal revenue against the Defendant. The Defendant is directed to execute the registered sale deed in favour of the plaintiff by receiving balance sale consideration of Rs.1,00,000/- on or before 30-10-2017. If fails, Plaintiff is entitled to get register the sale deed through Court of law by depositing

Rs.1,00,000/- within two months from the date of Judgment.

Dictated to Personal Asst., transcribed by her, corrected and pronounced by me in open

Court on this 30th day of August, 2017.

Spl. Sessions Judge for Trial of cases under SCs & STs (POA) Act-cum- VII Addl. Dist. & Sessions Judge, RR. Dist

APPENDIX OF EVIDENCE

Witnesses Examined

On behalf of the Plaintiff: On behalf of the Defendant:

PW-1 : V.Vinod KumarDW-1: None 5

DOCUMENTS MARKED FOR

On behalf of the Plaintiff:

Ex.A1: Certified copy of registered sale deed Doc.No.1209/1997, Dt.28-01-1997 Ex.A2: Original agreement of sale Dt.23-02-2015 Ex.A3: Original cash receipt, Dt.23-02-2015 Ex.A4: Original cash receipt, Dt.11-03-2015 Ex.A5: Original cash receipt, Dt.13-03-2015 Ex.A6: Original cash receipt, Dt.25-03-2015 Ex.A7: Original cash receipt, Dt.30-03-2015 Ex.A8: Legal notice along with draft sale deed, Dt.06-06-2015 Ex.A9: Postal receipt 1 and 2, Dt.06-06-2015 Ex.A10: Acknowledgment Dt.12-06-2015 Ex.A11: Original encumbrance certificate Dt.17-04-2017. On behalf of the Defendants: -Nil-

Spl. Sessions Judge for Trial

of cases under SCs & STs (POA) Act-cum- VII Addl. Dist. & Sessions Judge, RR. Dist

Read by :

Compared by :

I.A.No.217/2010 in O.S.No.26/20061

IN THE COURT OF THE V ADDITIONAL DISTRICT & SESSIONS JUDGE

RANGAREDDY DISTRICT AT L.B.NAGAR, HYDERABAD, TELANGANA

STATE

PRESENT: Sri.N.SOLOMON RAJU,

V ADDITIONAL DISTRICT & SESSIONS JUDGE,

RANGAREDDY DISTRICT AT LB NAGAR

Thursday, the Twenty Ninth day of November, Two Thousand Eighteen

INTERLOCUTORY APPLICATION No.217/2010 IN ORIGINAL SUIT No.26/2006 Between:

K.Lakshmaiah ...Petitioner

AND

K.Ramachandraiah and others …Respondents/Defendants D.Nagendar Rao and others … Respondents/Proposed Defendants No.6 to 16

This Interlocutory Application came before me for final hearing in the presence of Sri.A.Venkatesh, Counsel for the

Petitioner and M/s.M.Govindreddy, Counsel for the

Respondents and upon perusal of the material papers on record and the matter stood over for consideration till this day, this Court delivered the following:

:: O R D E R ::

01.The plaintiff filed this Interlocutory Application Under

Order 1 Rule 10 (2) r/w. Section 151 CPC seeking permission to implead the respondents No.6 to 16 as the defendants, in the interests of Justice.

02.As per the petitioner and as seen from the affidavit appended to the petition, petition schedule property is the absolute property of his father late.K.Seetharamaiah and on his death the same was devolved upon his legal heirs and he and the defendant orally partitioned the same into two equal shares and

I.A.No.217/2010 in O.S.No.26/20062 are enjoying their respective shares and they are having two sisters namely Smt.Nagamani and late.Smt.Anasurya, being under bonafide impression that they are not entitled for the share they did not implead as parties and he is informed recently about the amendment made to Hindu Succession Act, the legal heirs of

Smt.Nagamani and late.Smt.Anasurya are proper and necessary parties to the suit as they are entitled to succeed the shares of their mothers. He is entitled for 1/4th share and the defendants

No.2 to 4 being legal heirs of the defendant No.1 are entitled for 1/4th share and legal heirs of Smt.Nagamani and late.Smt.Anasurya are entitled for ¼th share each. Smt.Nagamani diedon 10-01-2006 leaving behind respondents No.6 to 12 as legal heirs and late.Smt.Anasurya died on 08-09-2006 leaving behind respondents No.13 to 16 as legal heirs and on the death of their mothers they are entitled for the share along with the plaintiff and the defendants No.2 to 5 and they are proper and necessary parties.

03.Counter-affidavit of the fourth respondent is filed for the defendants No.2 to 5 and as per their contention the petition is not maintainable under law and the petitioner suppressed the material facts with regard to the order passed by the Joint Collector and it is repeatedly submitted that the suit schedule property is not ancestral property and it was owned and possessed by the defendant No.1 and his legal heirs and no others are entitled to it.

Therefore, the question for entitlement to the shares to the daughters as per amended Hindu Succession Act may not apply in

I.A.No.217/2010 in O.S.No.26/20063 this case and the proposed parties are not necessary and proper parties to the suit and prays the Court to dismiss the petition, in the interest of Justice.

04.Heard on either side.

05.The point that would arise for determination is:

Whether the proposed parties can be impleaded as respondents No.6 to 16 as prayed for by the petitioner/plaintiff ?

DISCUSSION ON POINT:

06.As seen from the record, it is not in dispute that the plaintiff and the defendant No.1 are real brothers and sons of late.K.Seetharamaiah. The plaintiff filed the present suit for partition and separate possession of the suit schedule property for his ½ share. During the pendency of the suit the defendant No.1 died and his legal heirs are brought on record as the defendants

No.2 to 5.

07.As per the case of the plaintiff his father

K.Seetharamaiah was the absolute owner and possessor of the suit schedule property and after his death as per the tradition and custom, the lands were mutated in the name of the first defendant in revenue records, who is elder son of the plaintiff and subsequently the plaintiff and the defendant No.1 orally partitioned the property and they have been enjoying the suit schedule property and rythu passbooks are also issued. Taking advantage of the earlier revenue entries the defendant No.1 and his family members are trying to alienate the property to third parties and as such the suit is filed.

I.A.No.217/2010 in O.S.No.26/20064

08.As per the contention of the defendants the property was not ancestral property but it is the absolute property of the first defendant and his legal heirs. As seen from the issues framed, one of the issues is whether the suit schedule properties are available for the partition among the parties to the suit and another issue is whether the plaintiff is entitled for preliminary decree of the partition of the suit schedule property.

09.The fact of Smt.Nagamani and late.Smt.Anasurya are daughters of late.K.Seetharamaiah and sisters of the plaintiff and the defendant No.1 is not in dispute. As per the case of the plaintiff suit schedule property is the absolute property of their father K.Seetharamaiah whereas as per the contention of the defendants Nos.2 to 5, it is the absolute property of the defendant

No.1 and his legal heirs. Therefore the question as to the nature of the property is required to be determined on full-fledged trial.

Whether the proposed parties are entitled for share in the suit schedule property either by virtue of the succession as per Section 8 of Hindu Succession Act or as coparcenors by virtue of amended

Section 6 of Hindu Succession Act, is also required to be determined after full-fledged trial.

10.In view of the admitted relationship of the parties and nature of the suit in O.S.No.26/2006 and since the proposed parties can be said as proper and necessary parties to the present suit, it would be just and proper to permit the proposed parties to be impleaded as the defendants No.6 to 16 for proper and effective adjudication of the matter. Accordingly, this point is

I.A.No.217/2010 in O.S.No.26/20065 answered.

11.In the result, this Interlocutory Application is allowed on payment of costs of Rs.300/- to the other side.

Dictated to the Personal Assistant, typed by him, corrected

and pronounced by me in the Open Court on this Thursday, the Twenty Ninth day of November, Two Thousand Eighteen.

V ADDITIONAL DISTRICT & SESSIONS JUDGE

RANGAREDDY DISTRICT AT LB NAGAR

APPENDIX OF EVIDENCE: NIL

V ADDITIONAL DISTRICT & SESSIONS JUDGE

RANGAREDDY DISTRICT AT LB NAGAR

Compared by me:

I.A.No.217/2010 in O.S.No.26/20061

IN THE COURT OF THE V ADDITIONAL DISTRICT & SESSIONS JUDGE

RANGAREDDY DISTRICT AT L.B.NAGAR, HYDERABAD, TELANGANA

STATE

PRESENT: Sri.N.SOLOMON RAJU,

V ADDITIONAL DISTRICT & SESSIONS JUDGE,

RANGAREDDY DISTRICT AT LB NAGAR

Thursday, the Twenty Ninth day of November, Two Thousand Eighteen

INTERLOCUTORY APPLICATION No.217/2010 IN ORIGINAL SUIT No.26/2006 Between:

K.Lakshmaiah ...Petitioner

AND

K.Ramachandraiah and others …Respondents/Defendants D.Nagendar Rao and others … Respondents/Proposed Defendants No.6 to 16

This Interlocutory Application came before me for final hearing in the presence of Sri.A.Venkatesh, Counsel for the

Petitioner and M/s.M.Govindreddy, Counsel for the

Respondents and upon perusal of the material papers on record and the matter stood over for consideration till this day, this Court delivered the following:

:: O R D E R ::

01.The plaintiff filed this Interlocutory Application Under

Order 1 Rule 10 (2) r/w. Section 151 CPC seeking permission to implead the respondents No.6 to 16 as the defendants, in the interests of Justice.

02.As per the petitioner and as seen from the affidavit appended to the petition, petition schedule property is the absolute property of his father late.K.Seetharamaiah and on his death the same was devolved upon his legal heirs and he and the defendant orally partitioned the same into two equal shares and

I.A.No.217/2010 in O.S.No.26/20062 are enjoying their respective shares and they are having two sisters namely Smt.Nagamani and late.Smt.Anasurya, being under bonafide impression that they are not entitled for the share they did not implead as parties and he is informed recently about the amendment made to Hindu Succession Act, the legal heirs of

Smt.Nagamani and late.Smt.Anasurya are proper and necessary parties to the suit as they are entitled to succeed the shares of their mothers. He is entitled for 1/4th share and the defendants

No.2 to 4 being legal heirs of the defendant No.1 are entitled for 1/4th share and legal heirs of Smt.Nagamani and late.Smt.Anasurya are entitled for ¼th share each. Smt.Nagamani diedon 10-01-2006 leaving behind respondents No.6 to 12 as legal heirs and late.Smt.Anasurya died on 08-09-2006 leaving behind respondents No.13 to 16 as legal heirs and on the death of their mothers they are entitled for the share along with the plaintiff and the defendants No.2 to 5 and they are proper and necessary parties.

03.Counter-affidavit of the fourth respondent is filed for the defendants No.2 to 5 and as per their contention the petition is not maintainable under law and the petitioner suppressed the material facts with regard to the order passed by the Joint Collector and it is repeatedly submitted that the suit schedule property is not ancestral property and it was owned and possessed by the defendant No.1 and his legal heirs and no others are entitled to it.

Therefore, the question for entitlement to the shares to the daughters as per amended Hindu Succession Act may not apply in

I.A.No.217/2010 in O.S.No.26/20063 this case and the proposed parties are not necessary and proper parties to the suit and prays the Court to dismiss the petition, in the interest of Justice.

04.Heard on either side.

05.The point that would arise for determination is:

Whether the proposed parties can be impleaded as respondents No.6 to 16 as prayed for by the petitioner/plaintiff ?

DISCUSSION ON POINT:

06.As seen from the record, it is not in dispute that the plaintiff and the defendant No.1 are real brothers and sons of late.K.Seetharamaiah. The plaintiff filed the present suit for partition and separate possession of the suit schedule property for his ½ share. During the pendency of the suit the defendant No.1 died and his legal heirs are brought on record as the defendants

No.2 to 5.

07.As per the case of the plaintiff his father

K.Seetharamaiah was the absolute owner and possessor of the suit schedule property and after his death as per the tradition and custom, the lands were mutated in the name of the first defendant in revenue records, who is elder son of the plaintiff and subsequently the plaintiff and the defendant No.1 orally partitioned the property and they have been enjoying the suit schedule property and rythu passbooks are also issued. Taking advantage of the earlier revenue entries the defendant No.1 and his family members are trying to alienate the property to third parties and as such the suit is filed.

I.A.No.217/2010 in O.S.No.26/20064

08.As per the contention of the defendants the property was not ancestral property but it is the absolute property of the first defendant and his legal heirs. As seen from the issues framed, one of the issues is whether the suit schedule properties are available for the partition among the parties to the suit and another issue is whether the plaintiff is entitled for preliminary decree of the partition of the suit schedule property.

09.The fact of Smt.Nagamani and late.Smt.Anasurya are daughters of late.K.Seetharamaiah and sisters of the plaintiff and the defendant No.1 is not in dispute. As per the case of the plaintiff suit schedule property is the absolute property of their father K.Seetharamaiah whereas as per the contention of the defendants Nos.2 to 5, it is the absolute property of the defendant

No.1 and his legal heirs. Therefore the question as to the nature of the property is required to be determined on full-fledged trial.

Whether the proposed parties are entitled for share in the suit schedule property either by virtue of the succession as per Section 8 of Hindu Succession Act or as coparcenors by virtue of amended

Section 6 of Hindu Succession Act, is also required to be determined after full-fledged trial.

10.In view of the admitted relationship of the parties and nature of the suit in O.S.No.26/2006 and since the proposed parties can be said as proper and necessary parties to the present suit, it would be just and proper to permit the proposed parties to be impleaded as the defendants No.6 to 16 for proper and effective adjudication of the matter. Accordingly, this point is

I.A.No.217/2010 in O.S.No.26/20065 answered.

11.In the result, this Interlocutory Application is allowed on payment of costs of Rs.300/- to the other side.

Dictated to the Personal Assistant, typed by him, corrected

and pronounced by me in the Open Court on this Thursday, the Twenty Ninth day of November, Two Thousand Eighteen.

V ADDITIONAL DISTRICT & SESSIONS JUDGE

RANGAREDDY DISTRICT AT LB NAGAR

APPENDIX OF EVIDENCE: NIL

V ADDITIONAL DISTRICT & SESSIONS JUDGE

RANGAREDDY DISTRICT AT LB NAGAR

Compared by me: