CHIKKATHAMMANNA AND MUNIAKKAMMA Vs. DODDATHAMMANNA

JUDGEMENT

(1.) THE appellants have challenged the Judgment and Decree of dismissal of the suit filed for partition and separate possession of their share in the joint family properties and also dismissal of their appeal by the first appellate Court. The facts reveal that the plaintiffs and the defendant are brothers and sisters. It was the contention of the plaintiffs that the suit properties are joint family properties and as their share in the joint family properties was not given, they approached the trial Court for partition and separate possession of their share. The defendant contended that there was an oral partition in the year 1970 and the question of partition again does not arise for consideration. It was also their contention that Sy. No. 63/3 which was a joint family property partitioned in the year 1970 has not been included in the suit and hence a contention was raised that the suit itself is not maintainable in the absence of inclusion of the said property as the suit property. On the basis of the pleadings, the trial Court framed the issues. After recording the evidence of the parties and on appreciation of the material, the suit was dismissed holding that there was an oral partition in the year 1970 and it was also the finding of the trial Court that the property bearing Sy. No. 63/3 was not included as the subject matter of the suit. It was also a ground for dismissal of the suit instituted. Aggrieved by the Judgment and Decree, the plaintiff preferred an appeal in R.A. No. 167/2006. During the pendency of the appeal, the appellants filed I.A. No. 2 under Order VI Rule 17 CPC., to include Sy. No. 63/3 in the suit properties. Later, the appeal was heard by the first appellate Court and the impugned Judgment and Decree dismissing the appeal was passed, but there was no Order by the first appellate Court on I.A. No. 2 filed under the provisions of Order VI Rule 17 CPC. Aggrieved by the Judgment and Decree of the first appellate Court, the present appeal is filed.

(2.) AT the time of admission, the following substantial question of law is framed by this Court.

(3.) I have heard learned counsel for the parties. The perusal of the Judgments and Decrees of the Courts below would reveal that there is a finding that there was an oral partition between the parties in the year 1970. Learned counsel for the appellants would contend that the share of the 2nd plaintiff was admittedly not given in the alleged oral partition of the year 1970 and therefore a case to the extent of share of the 2nd plaintiff the Court should have granted the decree. Secondly, it is contended that I.A. No. 2 was filed under Order VI Rule 17 CPC to include Sy. No. 63/3 in the suit properties as the subject matter of the suit by amending the plaint. Though the interim application was filed and later posted for objections, I think the first appellate Court has lost sight off the fact that such an application was filed and without passing any order on I.A. No. 2, the appeal has been disposed of by dismissing the appeal filed by the appellants. Whenever, an interim application is filed, it is the duty of the Court to either accept or reject it while granting a decree, particularly so far as the application is filed by the appellants under Order VI Rule 17 of CPC to include Sy. No. 63/3 in the suit properties. In the light of the objections raised by the respondent the first appellate Court has not included the said property though it was a joint family property prior to 1970. It was the duty of the first appellate Court to hear the parties on the application and dispose of the same in accordance with law. Keeping the application pending and disposing of the appeal on merits is erroneous and illegal. For these reasons, the Judgment and Decree of the first appellate Court is liable to be set aside. So far as the other substantial questions of law raised in this appeal, as the Judgment and Decree of the first appellate Court are being set aside solely on the aforesaid additional substantial question of law, I do not think it is necessary to answer the other issue. The lower appellate Court shall pass appropriate Orders on I.A. No. 2 and consider the rival contentions of the parties and dispose of the appeal in accordance with law. For the aforesaid reasons, the appeal is allowed. The. Judgment and Decree of the first appellate Court is set aside and the matter is remitted back to the first appellate Court with a direction to dispose of I.A. No. 2 and then dispose of the appeal in accordance with law and in the light of the observations made above. As the matter is of the year 2006 before the first appellate Court, to avoid further delay, both the parties are directed to appear before the first appellate Court on 10.10.2013 and the fist appellate Court is directed to dispose of the appeal within a period of 4 [four] months from the date of communication of this Order. Office to send the records back to the lower appellate Court forthwith.