KALKONDA PANDU RANGAIAH Vs. KALKONDA KRISHNAIAH

JUDGEMENT

(1.) This is an application for direction to amend the decree in A. S. No. 462 of 1963 arising out of O. S. 18 of 1957 in the following circumstances. The petitioner herein filed the suit O. S. No. 18 of 1957 on the file of the Sub Court. Mahaboobnagar for partition of joint family properties into two shares and for allotment of one such share to him. He appended to his plaint details of properties mentioned in A. B. and C. Schedules. On 23-4-1959 in preliminary decree was passed in his favour for half the suit properties and for past mesne profits for six years and an enquiry into future mesne profits was directed. Defendants 1 and 2 carried the matter in a appeal A. S. No. 257 of 1959. The said appeal was dismissed except to the extent of past mesne profits for six years and only future profits were granted in that appeal.

(2.) Thereafter the plaintiff filed an application I. A. No. 112 of 1963 in the lower Court for passing final decree. By that time it was discovered that some mistakes have crept into the schedule of lands appended to the plaint. Schedule. A comprises of 10 survey number. Item No. 5 therein was shown as survey No. 265 measuring Ac. 5-23 Guntas. Item No. 10 was also shown as survey No. 265 measuring Ac. 2-02 guntas. According to the petitioner item 5 related to survey No. 264 and not 265. Item No. 6 of A Schedule was mentioned as survey No. 277/1 measuring Ac. 6-15 guntas. In the B Schedule 9 survey numbers were shown. of a total extent of Ac. 40-11 guntas. The extent of each of the survey numbers was not separately mentioned.

(3.) The petitioner-plaintiff filed I. A. 156/70 to amend the plaint schedules. That application appears to have been dismissed. Thereafter he filed I. A. 178 of 1971 to amend the plaint schedule to show the correct survey numbers in A Schedule and also a give the separate extent of each survey number in B. Schedule. On 19th August, 1971, I. A. 178 of 1971 was dismissed by the lower court holding that as the preliminary decree was confirmed in appeal by the High Court. the lower court had no jurisdiction to entertain that application. In the lower court a commissioner was appointed originally in I. A. 112/63 for dividing the suit items. The lower court asked the collector to partition the land as required by S. 54 and Order 20 Rule 18 C. P. C. An advocate Commissioner was appointed to partition the two houses and the sites attached therewith shown in the plaint C Schedule. The Commissioner filed his report about the same. The lower Court passed a decree on 5-8-1963 effecting the division of the Schedule C properties. Thereupon the defendants carried the matter in appeal in A. S. No. 462 of 1963 once again. The said appeal was allowed on 7-10-1968 holding that as the suit property is not situated in an estate, the lower Court was not justified in referring the matter to the Collector for partition, under Section 54 C. P. C. The matter was, therefore, remanded. Thereupon the lower Court appointed another advocate as commissioner to effect partition of the lands comprised in A and B Schedules and to submit a report. The Commissioner submitted his report and the respondents filed their objections. The lower court has by its order dated 19-1-1973 remitted back the report to the Commissioner for a fresh report. After re-partitioning the properties. excepting items 5, 6, 8 and 9 of A. Schedule. The lower Court directed a stay in regard to items 5 to 6 of A schedule in order to enable the plaintiff to get the decree suitably rectified.