False suits for partition = The recent escalation of the prices of land has given rise to almost a new type of litigation that is evolved, mostly by fraudulent persons. The sales, which have taken place long back, are sought to be set at naught by invoking the facilities, such as succession, partition.= The Supreme Court in Balraj Taneja Vs. Sunil Madan -AIR 1999 SC 3381 held so. The suit being the one for partition, the trial Court was under obligation to verify whether there existed (a) a joint family; and (b) joint family properties. It is only when the Court is satisfied on these two aspects that a preliminary decree can be passed in a suit for partition.= without framing the issues and shall not pass a preliminary decree unless it is satisfied about the existence of a joint family and joint family properties.

AS 290 / 2013

ASSR 3629 / 2013
PETITIONERRESPONDENT
M/S. R.V. NIRMAAN & ANOTHER  VSSMT. POTIACHERUVU HYMAVATHI & 12 OTHERS
PET.ADV. : SURESH KUMARRESP.ADV. : HARI HARAN
SUBJECT: PARTITIONDISTRICT:  RANGA REDDY
PUBLISHED IN http://164.100.12.10/hcorders/orders/2013/as/as_290_2013.html

THE HON’BLE SRI JUSTICE L. NARASIMHA REDDY
and
THE HON’BLE SRI JUSTICE  K.G.SHANKAR

 

A.S.No.290 of 2013


JUDGMENT: (per the Hon’ble Sri Justice L.Narasimha Reddy)

This appeal presents a typical litigation for which the Courts in Ranga Reddy District, particularly at L.B.Nagar have acquired notoriety. The recent escalation of the prices of land has given rise to almost a new type of litigation that is evolved, mostly by fraudulent persons.  The sales, which have taken place long back, are sought to be set at naught by invoking the facilities, such as succession, partition.

 Respondents 1 to 3 are sisters of the 4th respondent.  They filed the suit against the 4th respondent and others for the relief of partition and separation possession of the suit schedule properties, which is about Acs.2.50 guntas of land in Jeedimetla Village, Qutbullapur Mandal, Ranga Reddy District.  
All the defendants in the suit remained ex parte and an ex parte preliminary decree was passed on 02.02.2009.  The only basis on which the trial Court decreed the suit was the evidence of P.W.1 that too in chief and Exs.A1 to A4, which are in fact the sale deeds executed by the 1st defendant in the suit i.e. 4th respondent herein.
The appellants, who are not parties to the suit and filed this appeal with leave, state that they have purchased substantial extent of suit schedule property from defendants 7 to 10 and their vendors, in turn, purchased the land from the 4th respondent and without impleading the persons, who are in enjoyment of the land, the suit was filed.

Sri M.V.S. Suresh Kumar, learned counsel for the appellants, submits that the very filing of the suit was an act of collusion between the parties to the suit and the effort was only to get the suit land, without notice and intimation to the persons, who are enjoying the rights of ownership and possession.

Sri V.Hariharan, learned counsel for respondents 1 to 3, on the other hand, submits that his clients are conferred with rights of succession under the Hindu Succession Act as amended in the recent past and to enforce such rights, they have filed the suit for partition. He contends that the trial Court cannot be blamed if all the defendants in the suit remained ex parte.

The decree passed by the trial Court is ex parte in nature.  The suit came to be decreed even before issues were framed therein.  It is rather curious that out of 10 defendants, who were all the residents of the places in and around Hyderabad, none has entered appearance. The judgment passed by the trial Court reads as under:
          “From the evidence of P.W.1 and from the recitals mentioned in Exs.A1 to A4, suit claim is proved.
            In the result, the suit is decreed with costs by passing a preliminary decree for partition of suit schedule property in favour of the plaintiffs are entitled to 1/5th share each and 1/5th share to defendant No.1 and 1/5th share to defendants 2 to 6.  As far as the final decree is concerned, the plaintiffs are directed to file separate petition for passing of final decree. With regard to 2nd prayer, the plaintiffs are entitled for perpetual injunction in their favour and against the defendants as prayed for.  Since the plaintiffs have not produced any evidence with regard to the future mesne profits, the Court considers that they are not entitled for any such future mesne profits.”

The fact that the defendants remained ex parte or no written statements are filed, by itself, does not relieve a Court, of its obligation to verify the legality and genuinity of the claim in any suit.  
The Supreme Court in Balraj Taneja Vs. Sunil Madan[1] held so.

The suit being the one for partition, the trial Court was under obligation to verify whether there existed (a) a joint family; and (b) joint family properties.  It is only when the Court is satisfied on these two aspects that a preliminary decree can be passed in a suit for partition. 
An unverified statement of one of the plaintiffs cannot constitute the basis.  
Further, Exs.A1 to A3, the sale deeds, executed by the 4threspondent, were placed before this Court.  
It is just un-understandable as to how the sale deeds can prove the existence of joint family or the fact that family is holding or continuing to enjoy the said properties. In fact, it is the other way. The whole episode is rather unfortunate. 

The curious part of the matter is that quite a large number of suits of this nature are filed, and day in and day out, similar decrees are emerging.  Instead of being cautious and careful, some of the learned Presiding Officers are finding this to be devise to dispose of a suit. On account of the decrees of this nature, the innocent and gullible citizens are put to hardship.

Hence, the appeal is allowed and the judgment and decree passed by the trial Court is set aside. The matter is remanded to the trial Court for fresh consideration and disposal.  The appellants herein shall be entitled to file an application to implead them in the suit and the trial Court shall not proceed with the matter, without framing the issues and shall not pass a preliminary decree unless it is satisfied about the existence of a joint family and joint family properties.

The miscellaneous petitions filed in this appeal shall also stand disposed of.  There shall be no order as to costs.

The learned Principal District Judge, Ranga Reddy District is requested to circulate the copy of this order to the other judges in the District, who are entrusted with the civil matters. 


 

______________________                                                                                            
                                                                    L. NARASIMHA REDDY,J
                                                                   
                                     
                      

______________________                                                                                        

                                                                      K.G.SHANKAR,J

Dt:21.03.2013
kdl



                                                                  





[1] AIR 1999 SC 3381

Comments

Popular posts from this blog

Article 54 of the Limitation Act, 1963 (36 of 1963) reads as follows: “For Specific performance of a contract: Three years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.”= the apex Court in Ahmmadsahb Abdul Mila vs. Bibijan[1], wherein it was held that the date fixed for the performance of the contract should be a specified date in the calendar, and submitted that since no specified date in the calendar for performance of the contract is mentioned in the agreement of sale, the second limb of Article 54 of the Limitation Act is applicable. ; whether the suit is barred by limitation or not becomes a tribal issue and when there is a tribal issue, the lower Court ought not to have rejected the plaint at the threshold. In view of the same, order, dated 27-01-2012, in CFR.No.90 of 2012, passed by the Additional Senior Civil Judge, Ongole, (FAC) Senior Civil Judge, Darsi, is, hereby, set aside. The Appeal is allowed accordingly.

Or.18, rule 17 and sec.151 C.P.C - petition filed for reopen and examination of the executant of Ex.A1 the sale deed to fill up the lacuna in evidence pointed out at the time of arguments not maintainable = Shaik Gousiya Begum. ..Petitioner Shaik Hussan and others.... Respondents = Published in http://judis.nic.in/judis_andhra/qrydisp.aspx?filename=10515

Order 39 Rules 1 and 2 CPC. plaintiff has to prove his title and possession how he came into possession prima faice , in the absence of the same, not entitled for interim injunction = The questions as to whether the lease deed was properly stamped and whether the stamp paper on which it was typed can be said to have been procured through proper source, need to be dealt with at the stage of trial.; The suit filed by the 1st respondent, is the one for injunction simplicitor in respect of an item of immovable property. He has also filed an application under Order 39 Rules 1 and 2 CPC. Basically, it was for the 1st respondent to establish that he is in possession and enjoyment of the property and that he derived the same through lawful means, particularly when he did not contend that he encroached upon the property.= assumptions of facts against to the contents of crucial third party by misreading the same- it is just un-understandable as to how the trial Court gathered the impression that Anuradha stated that there was a meeting of Board of Directors, where it was decided to lease the property to the appellants. - the trial Court itself was not clear as to whether the appellant is the lessee or a Manager or is working under any other arrangement. - The important findings that have a bearing upon the valuable rights of the parties cannot be based upon such uncertain and unverified facts. One of the cardinal principles in the matter of examining the applications filed under Order 39 Rules 1 and 2 CPC is that a party claiming that relief must come to the Court with clean hands. Prima facie, we find that there are no bona fides, much less consistency on the part of the 1st respondent, in his effort to get the order of temporary injunction. The trial Court has misread the evidence and misinterpreted the facts borne out by the record.