MOLUGU RAM REDDY Vs. MOLUGU VITTAL REDDY

JUDGEMENT

(1.) THE following question is referred to this Full Bench: "whether an appeal against order as Civil Miscellaneous Appeal under Section 104 read with Order XLIII Rule 1 of the Code of Civil Procedure, 1908 (CPC, for brevity) or a regular appeal under Section 96 of the CPC, is maintainable against the judgment/order passed under Rule 11 of Order VII of the CPC?"

(2.) THE plaintiffs 1 to 4 (hereafter referred to as such) are the appellants in the Appeal suit as well as Civil Miscellaneous Appeal. THEy instituted O.S.No. 42 of 2001 on the file of the Court of the I Additional District Judge, Ranga Reddy District, for partition and separate possession of plaint A, B and C properties. It was claimed that plaintiffs and defendants Nos.1 to 18 (hereinafter referred to as such) are descendants of one Molugu Ram Reddy, who died leaving behind six sons. THE fifth and sixth sons died issueless, and plaintiffs and defendant Nos.1 to 18 are the respective legal representatives of other four sons, who had 1/4th share in the property left behind by Molugu Ram Reddy. THEy averred that the suit schedule properties are undivided Hindu joint family properties in which plaintiffs and defendant Nos.1 to 18 have share. After the death of the original ancestor, Narasimha Reddy and Malla Reddy, two of the four surviving sons, filed O.S.N0. 295 of 1984 on the file of the Court of the Additional Sub Judge, Ranga Reddy District, for partition of Acs. 107.17 guntas situated at Kushaiguda, Hamlet of Khapra Village of Ranga Reddy District. THE suit was compromised in 1988 under which all the properties were partitioned, divided and allotted to each individual. However, the suit lands abutting the road were not divided. THEy were kept for development purposes and remain joint. In September 2000, plaintiffs came to know that Smt. Sunitha, daughter-in-law of Ram Reddy, was given pattadar pass books in respect of plaint 'A' schedule property. An appeal was filed before the Revenue Divisional Officer, Ranga Reddy District. When the orders of stay were vacated, a revision was filed before the Joint Collector, who ordered status quo. In spite of the same, the defendants made attempts to raise constructions ignoring objections by the plaintiffs.

(3.) BEING aggrieved by the order of the lower Court in LA. No. 2962 of 2001 rejecting the plaint, plaintiffs filed Civil Miscellaneous Appeal under XLIII Rule l(r) of the CPC, being CMA. No. 3214 of 2003 on 21-4-2003. A day thereafter, they also filed regular appeal suit under Section 96, being A.S.No. 2265 of 2003. These appeals were listed on 6-1-2004 before the referring Bench comprising one of us (Hon'ble Sri Justice B. Praksh Rao). An objection was raised on behalf of the defendants that the plaintiffs are precluded from filing two appeals against the order rejecting the plaint. The plaintiffs, however, contended that a Civil Miscellaneous Appeal is not barred. They relied on the decision of the learned single Judge of this Court in Ragam Yellaiah v. Chintha Shankaraiah (1) 2003 (5) ALT 403 = 2003 (2) An.W.R. 480 (A.P.) = 2003 (1) Decisions Today (AP) 78. Therein the learned single Judge of this Court held that an order rejecting the plaint being the "deemed decree" under Section 2(2), Civil Miscellaneous appeal would lie. The learned single Judge distinguished the decision of the Supreme Court in Shamsher Singh v. Rajinder Prashad (2) AIR 1973 SC 2384, and followed the decision of the Division Bench in B. Nookaraju v. M.S.N. Charities (3) 1994 (2) ALT 125 (D.B.) = AIR 1994 AP 334, wherein it was held that a Civil Miscellaneous Appeal is maintainable against the order under Order XXI Rule 58(3). Disagreeing with Ragam Yellaiah and Nookaraju (1 and 3 supra), the Division Bench referred the question to the Full Bench.