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2025 DIGILAW 246 (TS)

T. Usha Rani v. Meera Sinha

2025-04-04

N.TUKARAMJI, P.SAM KOSHY

body2025
JUDGMENT : N.Tukaramji, J. We have heard Sri Vedula Srinivas, learned Senior Counsel, on behalf of Sri Thakur Nitender Singh, learned counsel for the appellant/petitioner, Sri A.Venkatesh, learned Senior Counsel, on behalf of Sri M.S.Achyuth Bharatwaj, learned counsel for the respondent No.1 and Ms.Bhagya Laxmi Rathor, respondent No.2 appeared as party-in-person. 2. C.M.A.No.474 of 2022 has been filed challenging the order dated 22.08.2022 in I.A.No.548 of 2021 and C.M.A.No.478 of 2022 has been directed against the order dated 22.08.2022 in I.A.No.545 of 2021 in O.S.No.73 of 2021. Both these Interlocutory Applications were adjudged by a common order dated 22.08.2022, passed by the learned III Additional District Judge, FAC IV Additional District Judge, Sangareddy. 3. The impugned order being common and prayers in the Interlocutory Applications being similar, both the appeals are heard together and are being decided by this common order. 4. The appellant/plaintiff, who is sister of the respondents/defendants filed the suit vide O.S.No.73 of 2021 seeking partition and separate possession of agricultural land admeasuring Ac.6-00 gts., in Sy.Nos.1007, 1010, 1011 and 1012, situated at Ameenpur Village, Sangareddy District (hereinafter be referred to as ‘the suit schedule property’). 5.(i) Briefly stated the relevant facts are that, the suit schedule property and other properties are originally owned by one C.D.Dhankoti Mudaliar and after his demise, the properties were devolved on his three sons. One among them is the father of the appellant, respondents and four brothers. 5.(ii) Previously, a suit vide O.S.No.219 of 1982, on the file of the learned Additional Chief Judge, City Civil Court, Hyderabad, was filed by C.J.Shyam Sundar Mudaliar, who is brother of the appellant/plaintiff, against his father and paternal uncles namely C.D.Jayaram Mudaliar, C.D.Hemanth and C.D.Ramchander seeking partition of house and agricultural properties shown in suit schedule ‘A’ to ‘C’ properties, wherein a preliminary decree was passed on settlement and the properties were shared among themselves, wherein ‘C’ schedule agricultural land was partitioned among the father of the appellant, who was defendant No.1, defendant Nos.2 and 7, the plaintiff and defendant No.3 therein in 20:20:26.66:33.34 and accordingly, the shares were distributed. As the father of the appellant died, the other sons, appellant and defendants were brought on record as respondents. As the father of the appellant died, the other sons, appellant and defendants were brought on record as respondents. Thereafter, a final decree was passed on 08.04.2008 and delivery of possession of the respective shares took place upon the legal heirs of the deceased parties and the appellant, respondents and the brothers got Ac.14-00 gts., in the suit ‘C’ Schedule agricultural land. Out of it, four brothers of the appellant were allotted Ac.8-00 gts., and the appellant and respondents herein were given Ac.6-00 gts. 5.(iii) Subsequently, the sisters of the appellant i.e. respondents filed writ petitions before this Court seeking direction to the revenue authorities to mutate their names in respect of the land fell to their respective shares. On the directions in the Writ Petitions, the portion up to the extent of Ac.2-00 gts., was mutated in the names of respondent Nos.1 and 2. 6. The appellant’s contention is that, there was no partition of the suit schedule property, inter se between herself and respondents and filed the suit seeking partition. Wherein filed I.A.No.545 of 2021 seeking relief of temporary injunction against the respondents from alienating, transferring or otherwise encumbering the suit schedule property pending disposal of the suit and I.A.No.548 of 2021 seeking temporary injunction against the respondents from altering the nature of the suit schedule property by raising constructions, pending the suit. 7. Before the trial Court, the respondents contested that after passing a final decree, there was family settlement/partition of the properties assigning respective shares in June, 2009. Basing on it, the respondents filed Writ Petitions in 2011 and 2017 vide W.P.Nos.27365 of 2011 and 10461 of 2017 respectively and got transferred the property in their names. Further asserted that the appellant in the writ proceedings did not raise any objection and thereby impliedly admitted their plea of inter se partition. Thus, the suit for partition is baseless and the prayer for interim direction of injunction would be of nature of injunction against the true owner. Thus, the petitions do not merit consideration. 8. The Court below by observing that the alienations of devolved share by the brothers without making the appellant and respondents as parties is establishing the Family Settlement of June, 2009 and if at all there was requirement of partition, the appellant should have filed an application in the Final Decree proceedings for proper consideration of the issue. 8. The Court below by observing that the alienations of devolved share by the brothers without making the appellant and respondents as parties is establishing the Family Settlement of June, 2009 and if at all there was requirement of partition, the appellant should have filed an application in the Final Decree proceedings for proper consideration of the issue. Further, by observing that the contest as to proper notice on the appellant in the writ petition proceedings is not acceptable, dismissed the petitions. 9. Learned Senior Counsel appearing for the appellant vehemently contested that though the respondents pleaded settlement deed/partition deed among themselves, except pleading not even a copy of that document was placed on record. Further, the respondent No.1 in her Writ Petition vide W.P.No.10461 of 2017 has not shown the appellant as a party. Likewise, in the writ petition filed by the respondent No.2 i.e. W.P.No.27365 of 2011, though the appellant was shown as the 14 th respondent, the opportunity was not properly availed. However, the appellant in her Writ Petition vide W.P.No.29423 of 2017 had categorically pleaded for mutation of her name in respect of 1/3 rd share out of the suit schedule property. However, this Court, by admitting the respondents’ pleadings, without determining the veracity of such pleadings, directed the revenue authority for mutation and accordingly, the Tahsildar, Ameenpur Mandal, Sangareddy District, had passed orders of mutation to the extent of Ac.2-00 gts. Ac.1-20 gts., in favour of respondent Nos.1 and 2 respectively. However, the contest of the appellant that there was no partition has not been determined, therefore, the orders in Writ Petitions in any way defeat the rights of the appellant for proper partition. That apart, pleaded that as the final decree has already been passed and to consider the dispute of inter se partition, apart from filing I.A. in the final decree proceedings of O.S.No.219 of 1982, the suit is perfectly maintainable under Section 9 of the Code of Civil Procedure. Thus, the Court below, to avoid the complications, should have considered and granted interim injunction pending the suit, as prayed for. Hence, sought for intervention. 10. Learned Senior Counsel for respondent No.1 has pleaded that the appellant by filing this suit has raised dispute in regard to inter se partition, though the respondents claimed that the property was already partitioned among themselves in the Writ Petitions, the appellant never contested that fact. Hence, sought for intervention. 10. Learned Senior Counsel for respondent No.1 has pleaded that the appellant by filing this suit has raised dispute in regard to inter se partition, though the respondents claimed that the property was already partitioned among themselves in the Writ Petitions, the appellant never contested that fact. As per the appellant, in the final decree, the property devolved on the siblings is of Ac.14-00 gts., and the aspects that the brothers are not shown as parties and admittedly they had alienated their shares is substantiating the fact of inter se settlement among the sharers. Furthermore, all the parties are in agreement that in the final allotment, the appellant and her siblings got Ac.14.00 gts. The respondent No.1 after settlement got filed writ petition and by the directions, the respective share has been mutated by the revenue authorities in her name. Thereafter, she got fenced her property and even entered into agreements with the third parties. The course of events are substantiating the inter se partition among the appellant and the respondents, however, without there being any tenable ground and for the reasons best known to the appellant, filed the suit to cause loss to her. Hence, prayed for dismissal of the appeals. 11. The respondent No.2 in person reiterated that there was partition and the agricultural land admeasuring Ac.6-00 gts., allotted to them. A public road was laid by the authorities cutting across the share allotted to her, for which she contested and the acquisition proceedings reflect her name and the revenue authority after deleting the extent of road mutated the remaining extent of Ac.1-20 gts., in her name. Further, pleaded that the contention of the appellant against the internal settlement among themselves is unsustainable and after the partition as there was encroachment by the third parties in the portion allotted to the appellant and those encroachers also got favourable decree, raised the present dispute to mitigate her loss. As the appellant and respondents have already acted upon the settlement and taken their respective shares, re-opening the issue is impermissible and would be detrimental to their interests. Thus, granting any injunction would prejudice their interest. Hence, prayed for dismissal of the appeals. 12. As the appellant and respondents have already acted upon the settlement and taken their respective shares, re-opening the issue is impermissible and would be detrimental to their interests. Thus, granting any injunction would prejudice their interest. Hence, prayed for dismissal of the appeals. 12. The respondents cited the following authorities: (i) Burugupally Shiva Rama Krishna and others vs. M/s. Cyrus Investments Limited and others , [ 2011 (3) ALT 634 ] (ii) Arjun Mahto and others vs. Monda Mahatain and others , [AIR 1971 Pat 2015] (iii) Pitambar Kar and others vs. Trilochan Kar and others , [ AIR 2003 Ori 104 ] 13. We have carefully considered the submissions of the learned Senior Counsel appearing for the appellant, respondent No.1 and the respondent No.2, who appeared in person and perused the materials on record. 14. The final decree proceedings dated 08.04.2008 in I.A.No.3833 of 2007 in O.S.No.219 of 1982 are disclosing that the appellant herein filed a Memo showing preference of the shares of respondent Nos.12 to 14 (the appellant, respondent Nos.1 and 2 herein) for allotment of their share of land and as it is accepted by other parties, the same was allotted in the plan. However, it was observed that respondent No.2 herein has not stated as to how the plots recommended to the respondent Nos.8 to 14 (all the siblings of appellant) is disadvantageous and it is open to the defendant Nos.8 to 14 to make arrangement between themselves and to subdivide 20% of land allotted to the share of their father. Further, in the map appended to the final decree the allotted Ac.6-00 gts., was not contiguous. Further, the receipt of the Court dated 25.05.2009 is showing entire Ac.14-00 gts., has been delivered to the appellant and her siblings. However, in the above noted observation in the order is making out that the preferential share of land identified by the appellant has been allotted in the plan, though the delivery receipt is for entire portion. Thus, it is evident that the shares of the appellant and respondents have been allotted together in the plan. That being the position, the claim of the appellant that from the allotted portion, herself and the respondents got 1/3 rd of the land is acceptable. Therefore, the issue of sharing of Ac.6-00 gts., of land is between the appellant and respondent Nos.1 and 2 but not with their brothers. That being the position, the claim of the appellant that from the allotted portion, herself and the respondents got 1/3 rd of the land is acceptable. Therefore, the issue of sharing of Ac.6-00 gts., of land is between the appellant and respondent Nos.1 and 2 but not with their brothers. Resultantly, limiting the claim of partition among the three sisters i.e. appellant and respondent Nos.1 and 2 is perfectly justified and excluding their brothers cannot be regarded as non-joinder of necessary parties. 15. By the afore noted facts, allotment of Ac.6-00 gts., in favour of the appellant and respondents in the final decree can be concluded. In that status, the appellant and respondents became co-owners of the portion of agricultural land allotted to them. The assertion of respondent Nos.1 and 2 is that after allotment/after delivery of property, there was settlement/partition among them under a deed. Pertinently, the respondents have not pleaded that the brothers were also part of the settlement. As noted above, in the final decree, the properties allotted to brothers and sisters with separate demarcation and the fact that the brothers parted with their shares cannot be read as reflection of inter se partition between the appellant and respondents, unless material evidence clinches this fact. 16. Be that as it may, as per the respondents, the internal division/partition/understanding among themselves was under a deed but for the reasons best known to them, failed to bring that document on to record. Thus, the foundational pleading in support of settlement and allotment of shares among the appellant and the respondents has remained unsubstantiated. However, the respondents by citing the mutation proceedings in the revenue record claimed that these entries are evidencing the inter se partition among the appellant and the respondents is found unacceptable for the reason that the mutation entries were made upon the direction of this Court in the Writ Petitions filed with a plea that partition has been effected among them. Furthermore, it is clear by the record that in the Writ Petition No.10461 of 2017 filed by the respondent No.1, the appellant has not been shown as party and in the Writ Petition No.27365 of 2011 filed by the respondent No.2, though the appellant is shown as respondent No.14, as she did not come on record through counsel, the order directing the revenue authority to effect mutation cannot be read as the fact of inter se partition has been determined in the Writ Petitions. That apart, at the Interlocutory stage and in absence of the claimed partition deed, it shall be held that the material on record is not confirming the fact of inter se partition. In the absence of the respondents’ claimed partition, the appellant and the respondents would stand in the status of joint owners over the schedule property. Joint owner irrespective of the share will have equal right of enjoyment over every portion of the property. For that reason, if one of the joint owners alienates or creates third party interest, it would cause serious prejudice to the interest of the other co-owner, especially when the claim for partition is in deliberation. That being so, directing the respondents not to alienate or create third party interests over the suit schedule property to address unnecessary consequences and multiplicity of litigation, is found appropriate. Further, if the respondents proceeded with developmental activities, at a later date may claim equities to the disadvantage to the appellant, if she succeeds in the suit. Thus, weighing the balance of convenience, directing the respondents not to alter the nature of the suit schedule property would preserve the interests of the parties pending adjudication of the suit, is also found justified. 17. For the aforesaid reasons, it shall be held that the trial Court had failed to properly appreciate the materials on record in arriving at conclusions. Thus, we are of the considered view that intervention in the appeals would be just and proper in the interest of justice. 18. Resultantly, for the aforesaid reasons, both the Civil Miscellaneous Appeals are allowed and the respondents are directed not to alienate or create third party interests and shall not alter the nature of the suit schedule property, pending the suit. No order as to costs. As a sequel, pending miscellaneous petitions if any, stands closed.