SYED MAQDOOM SHAH Vs. BASHEER KHATOON

JUDGEMENT

(1.) This common order shall dispose of these miscellaneous applications filed in an appeal suit, which was allowed by this Court by judgment dated 25-1-1996 while reversing the judgment and decree of the Court of Additional Subordinate Judge, Ranga Reddy District in O.S. No. 471 of 1987. A.S.M.P. No. 11880 of 2004 is filed under Section 152 of Code of Civil Procedure, 1908 (CPC) praying this Court to amend the decree dated 25-1-1996 by granting the relief of partition and separate possession of V2 share in suit schedule property in favour of the petitioners. A.S.M.P. (S.R.) No. 55622 of 2004 is filed praying this Court to amend the provisions of law in miscellaneous application being A.S.M.P. No. 11880 of 2004 as one under Sections 151,152 and 153 of CPC whereas the other miscellaneous application being A.S.M.P. (SR) No. 55623 of 2004 is filed praying this Court to permit the petitioner to amend the prayer by adding the words" or in the alternative to pass a supplemental preliminary decree declaring the half share of the petitioners in the suit schedule property inO.S. No. 471 of 1987 on the file of the Court of the Senior Civil Judge, R.R. District and direct partition and separate possession of their half share.".

(2.) In support of these applications, the second petitioner filed affidavit along with the said applications. It is stated that Khader Nawaz Khan, the predecessor-in-title of respondents 1 to 6 herein filed suit being O.S. 471 of 1987 on the file of the Court of the Additional Senior Civil Judge, R.R. District for partition and separate possession of the plaint schedule property. The suit was dismissed by judgment and decree dated 16-10-1990 against which he filed A.S. No. 734 of 1991. By a judgment and decree dated 25-1-1996, the learned Single Judge of this Court allowed the appeal. Aggrieved by the same, respondent No. 16 filed L.P.A. No. 72 of 1996, which was dismissed by a Division Bench on 29-12-1998. The review petition being Review C.M.P. No. 3830 of 1999 filed by the 16th respondent was allowed by the Division Bench by an order dated 30-8-2001. Feeling aggrieved by the said order, respondents 1 to 6 herein; the legal representatives of the original appellant- plaintiff filed S.L.P. (Civil) No. 22591 of 2001 before the Supreme Court. The Supreme Court by an order dated 10-2-2003 allowed the Civil Appeal arising from the S.L.P. setting aside the order of the Division Bench dated 30-8-2001 in Review C.M.P. No. 3830 of 1999. Again the respondent No. 16 filed S.L.P. (Civil) No. 2962 of 2003 and the same was dismissed by the Supreme Court by an order dated 7-4-2003.

(3.) The respondents 1 to 6, thereafter, filed LA. Nos. 505 and 507 of 2004 under Order XX Rule 12(2) of CPC for passing of final decree and also for determination of mesne profits. In the said application, they asked for division and allotment of 1/4th share, which the original plaintiff claimed in the suit. Being the legal representatives of Shahzadi Bi (Mother of first petitioner and grand mother of second petitioner), the petitioners are entitled to share in the property. Though the decree in A.S. No. 734 of 1991 directs division of suit schedule property into four equal shares and allotment of one such share to the plaintiff there is no decree in favour of the petitioners. The petitioners were not aware of the legal position and if decree is not granted in their favour, they would suffer grave and irreparable loss and injury. Therefore the present petition is filed seeking amendment of the decree.