KUSAMPUDI SUBBA RAJU Vs. MASTER PENUMATSA SAYI RAJU

JUDGEMENT

(1.) The unsuccessful plaintiff in a suit for partition and separate possession in O.S. No. 174/84 on the file of Subordinate Judge, Tadepalligudem (old O.S. No. 248/83 ESC) had preferred the present Appeal. Respondents 2, 3, 7 and 16 died and it was stated that respondents 4,8,9 to 15, the legal representatives of the aforesaid respondents already on record. The appellant herein/ plaintiff prayed for division of plaintiff schedule properties into three equal shares and allot him 1/3rd share and also prayed for the relief of mesne profits. The suit claim was resisted by respondents/defendants by filing a separate written statement and the trial Court after settling the issues had examined P.W. 1 and P.W. 2 and D.W. 1 to D.W. 11, marked Exs. A-1 and Exs. B-1 to B-26 and ultimately by Judgment dated 25-2-1998 dismissed the suit directing each party to bear their own costs. Aggrieved by the same, the present Appeal is preferred.

(2.) Sri C.C.S. Sastry, the learned Counsel representing the appellant/plaintiff would submit that even in the light of the findings which had been recorded by the trial Court the appellant/plaintiff is entitled to the decree of partition. The learned Counsel also would submit that the prior suit filed by him had been dismissed on the strength of a memo filed by him and the said dismissal recorded by the Court on the strength of the memo filed by the appellant/plaintiff in the prior suit would not come in the way in maintaining the present suit for partition. The learned Counsel also would submit that in view of the fact that it is a suit for partition, the sister of the appellant/ plaintiff also is a necessary party, but however she was not impleaded as a party and hence in the interest of justice an opportunity to be given to the appellant/plaintiff to implead her as a party and to agitate his rights by remanding the matter. The learned Counsel also had taken this Court through the respective pleadings of the parties and also the findings recorded by the trial Court and would maintain that having expressed serious doubt about the so-called arbitration award on the strength of which rights are being claimed by the respondents/defendants dismissal of the suit despite the fact that Ex. A-1 was proved in accordance with law definitely cannot be sustained.

(3.) Per contra Sri T.S. Anand, the learned Counsel representing the respondents/ defendants would submit that the view expressed by the trial Court that a second suit for partition can be maintained though the prior suit for the self-same relief had been withdrawn even though liberty or leave was not prayed for while withdrawing the prior suit cannot be sustained in the light of the clear language of Order 23 Rule 1 of the Code of Civil Procedure. The learned Counsel also would maintain that the said finding was recorded on the strength of the legal position in the light of the provisions of the Code of Civil Procedure prior to the amendment Act of the Code of Civil Procedure. The learned Counsel also would further contend that it is true that certain findings adverse to the respondents/defendants also had been recorded but the same would not alter the situation in any way since the party who approached the Court for the relief may have to establish his legal right to claim the relief of partition. Even otherwise the Counsel would maintain that the sister is definitely a necessary party to a partition action and the said objection was taken at the earliest point of time but despite the same no steps had been taken to implead the necessary party to the suit and hence the trial Court rightly dismissed the suit on this ground too.