Adusumalli Srinivasa Rao S/o Late Chalapati Rao v. Adusumalli Subba Rao S/o Late Chalapati Rao
2022-11-16
SUBBA REDDY SATTI
body2022
DigiLaw.ai
ORDER : 1. 1st Defendant in the suit filed the above revision against the order dated 12.07.2022 in I.A. No. 267 of 2021 in O.S. No. 22 of 2014 on the file of XI Additional District Judge, Tenali. 2. 1st Respondent, being the plaintiff filed suit O.S. No. 22 of 2014 against the revision petitioner and 2nd respondent herein seeking partition of plaint schedule properties. 3. As per the averments in the plaint, plaintiff and defendants are the children of Adusumalli Chalapathi Rao and Annapurnamma; that plaint A schedule property is the ancestral property of Chalapathi Rao; that plaint B schedule property was purchased by Chalapathi Rao under a registered sale deed dated 13.10.1983 and plaint C schedule property belonged to A. Annapurnamma and she purchased the same under a registered sale deed dated 31.12.1971; that brother of Chalapati Rao, by name Ramamohana Rao died intestate; that even after death of Ramamohana Rao, his heirs and Chalapathi Rao are jointly enjoying the joint family properties; that Chalapathi Rao and children of Ramamohana Rao partitioned the joint family properties under a registered partition deed dated 10.12.2018; that in the said partition, ‘A’ schedule property i.e. plaint ‘A’ schedule properties fell to the share of Chalapathi Rao and his children i.e. plaintiff and defendants 1 and 2; that Chalapathi Rao died intestateon 22.03.2009 and plaintiff, defendants 1 and 2 succeeded to item Nos. 1 to 4 of plaint A and B schedule properties; that mother of plaintiff, defendants 1 and 2 purchased house site and constructed RCC building in the C schedule property; that Annapurnamma died on 27.05.2013 and that the plaintiff is entitled to 1/3rd share in plaint A, B and C schedule properties and filed the suit seeking partition. 4. 1st Defendant filed written statement and contended interalia that plaintiff was separated from his father Chalapathi Rao about 30 years back and has been living separately; that plaintiff orally took Ac. 1.00 cents of wet land towards his share and orally relinquished his share from the joint family of his father Chalapathi Rao; that plaintiff sold Ac.
4. 1st Defendant filed written statement and contended interalia that plaintiff was separated from his father Chalapathi Rao about 30 years back and has been living separately; that plaintiff orally took Ac. 1.00 cents of wet land towards his share and orally relinquished his share from the joint family of his father Chalapathi Rao; that plaintiff sold Ac. 1.00 cents of land and received entire consideration, however his father executed sale deed; that during the marriage of 2nd defendant, Annapurnamma gifted plaint B schedule property and an extent of 311 square yards of site in T.S. No. 31 and 32 bearing Plot No. 291 of Zillelagudem of Rangareddy District towards pasupukunkuma; that 311 square yards of site was purchased by Annapurnamma under a registered sale deed dated 20.08.1985; that 2nd defendant accepted the gift and took possession of B schedule property along with 311 square yards; that later father died without executing any document in respect of ‘B’ schedule property in favour of 2nd defendant; that on 11.02.2011, mother of plaintiff and 1st defendant Annapurnamma bequeathed plaint B schedule property along with 311 square yards to 2nd defendant under a registered Will bearing No. 24/BK/2011; that during her lifetime, Annapurnamma bequeathed plaint C schedule property to 1st defendant in a sound and disposing state of mind under an unregistered Will dated 02.08.2012, which was attested and notarized by Mekala Ravi, Advocate; thus, 1st defendant who is legatee, became the absolute owner of plaint C schedule property after the death of Annapurnamma; that plaintiff is not the co-sharer in respect of plaint A, B and C schedule properties and hence, not entitled to 1/3rd share and prayed to dismiss the suit. 5. 2nd Defendant filed separate written statement and pleaded oral gift in respect of plaint B schedule property and 311 square yards of site and later execution of registered Will dated 14.02.2011 and thus, prayed to dismiss the suit. 6. During the trial, 1st defendant filed I.A. No. 267 of 2021 under Order XVI Rule 7 of CPC to issue summons to the District Registrar, Rangareddy (East), L.B. Nagar, Hyderabad to cause production of Index Register in respect of sale transaction dated 02.06.2011 for the purpose of sending the same along with disputed documents to the expert. 7.
6. During the trial, 1st defendant filed I.A. No. 267 of 2021 under Order XVI Rule 7 of CPC to issue summons to the District Registrar, Rangareddy (East), L.B. Nagar, Hyderabad to cause production of Index Register in respect of sale transaction dated 02.06.2011 for the purpose of sending the same along with disputed documents to the expert. 7. In the affidavit filed in support of the petition, it was contended interalia that the suit is posted for arguments on 25.10.2021; that Annapurnamma during her lifetime executed a registered Will dated 14.02.2011 in favour of 2nd defendant regarding B schedule property and another unregistered Will dated 02.08.2012 in favour of 1st defendant in respect of C schedule property; that plaintiff denied the genuineness of said Wills and thus, he filed I.A. No. 70 of 2019 under Section 45 of the Indian Evidence Act to send the two Wills and also thumb impression register in respect of registered Will dated 14.02.2011; that I.A. No. 90 of 2019 was filed to summon the Sub Registrar, Tenali for production of thumb impression index register in respect of registered Will dated 14.02.2011; that the Court sent the two Wills along with thumb impression index register to the FSL, Hyderabad and later the expert returned the documents and opined another signature of Annapurnamma of the year 2011 is required for the purpose of giving opinion; that on efforts it came to light that Annapurnamma executed a sale deed in favour of Vankadothu Sujatha on 02.06.2011, resident of House No. 5-5-707/209, Devi Towers, Abhiyudaya Nagar, Chintalakunta, L.B. Nagar, Hyderabad and the said sale transaction took place at District Registrar Office, Ranga Reddy-East and hence, filed the application praying the relief referred supra. It was further contended that previously he filed I.A. No. 1356 of 2019 under Order XVI Rule 7 of CPC and the same was not pressed without his knowledge; that at the time of preparation of written arguments, the deponent came to know about that said I.A. was dismissed as it was not pressed by previous advocate and hence, filed the present application. 8.
8. Counter was filed by respondent/plaintiff and contended interalia that petitioner previously filed I.A. No. 1356 of 2019 and the same was not pressed and hence, the said petition was dismissed; that the petitioner has been attending the Court on every adjournment and he knows day to day proceedings and eventually, prayed the Court to dismiss the petition. 9. By order dated 12.07.2022, trial Court dismissed the petition. Against the said order, the above revision is filed. 10. Heard Ms. Nimmagadda Revathi, learned counsel for the petitioner and Sri V.V.L.N. Sarma, learned counsel for 1st respondent. 11. Learned counsel for revision petitioner would submit that summoning of the District Registrar to cause production of index register in respect of sale transaction dated 02.06.2011 for the purpose of sending the same along with disputed document is necessary, in view of the fact that plaintiff denied the genuineness of Will executed by mother. She would also submit that the earlier application filed for the same relief was not pressed by the previous advocate on 22.11.2019 without the knowledge of the petitioner and hence the present application was filed. She further submits that earlier documents sent to the expert were returned for want of contemporaneous signatures and thus prayed to set aside the order of the trial Court. 12. Learned counsel for 1st respondent would submit that having not pressed I.A. No. 1356 of 2019, petitioner cannot maintain another application. He also would submit that when the suit is coming for arguments, without advancing arguments, this application is filed to drag the proceedings and there are no merits in the application. 13. Trial Court in its order recorded finding that having not pressed I.A. No. 1356 of 2019, when the suit is coming for arguments, this application is filed and found no reason to order the application. 14. Earlier application I.A. No. 1356 of 2019 was dismissed as not pressed on 22.11.2019. According to the plaintiff, suit is coming for arguments from 2019 onwards. The present application was filed on 25.10.2021. Learned counsel for the petitioner would submit that due to Covid-19 pandemic, the application was not filed immediately. However, as noted supra, earlier application was not pressed on 22.11.2019 and the present application was filed during Covid-19 pandemic and the Courts are being functioning online.
The present application was filed on 25.10.2021. Learned counsel for the petitioner would submit that due to Covid-19 pandemic, the application was not filed immediately. However, as noted supra, earlier application was not pressed on 22.11.2019 and the present application was filed during Covid-19 pandemic and the Courts are being functioning online. Thus, the contention of learned counsel for petitioner that due to Covid-19 pandemic, application was not filed immediately, falls to ground. 15. In the affidavit filed in support of the petition, the other ground raised is that advocate did not inform the party regarding not pressing the earlier I.A. No. 1356 of 2019. In this connection, this Court is constrained to observe that whenever there is change of advocate, if any interlocutory application is filed, it becomes practice to make comment or throwing blame on the earlier advocate. This practice must be deprecated. When the expert returned the document with an endorsement to get the admitted signatures in the year 2019, petitioner having filed I.A. did not press for the same. After change of advocate another I.A is filed. The reasons assigned in the affidavit in not filing the application immediately are not convincing. Trial Court considered all these aspects and dismissed the application. 16. The scope of revision under Article 227 of the Constitution of India was considered by Hon’ble Apex Court in Surya Dev Rai vs. Ram Chander Rai and Others, (2003) 6 SCC 675 . The order of the lower is neither perverse nor amounts to failure to exercise jurisdiction vested with it. Hence, the order of the trial Court dismissing the petition does not call for interference of this Court under Article 227 of the Constitution of India. 17. Accordingly, the Civil Revision Petition is dismissed at the admission stage. No order as to costs. 18. As a sequel, all the pending miscellaneous applications shall stand closed.