MAMIDI SAI REDDY Vs. M SHIVA REDDY

JUDGEMENT

(1.) The unsuccessful plaintiffs in O.S. No.433 of 1989 on the file of II Additional Senior, Civil Judge, Ranga Reddy at Saroornagar, Hyderabad had preferred this appeal. The appellants- plaintiffs filed suit for partition and separate possession of their 1/3rd share in the total extent of Ac. 19.01 cents covered by Survey Nos.185, 186, 187, 188 and 189 of Lothukunta, Alwal Village of Malkajgiri Mandal and for costs. On the respective pleadings of the parties, the learned Judge settled the issues. But further, by an order in I.A.No.504 of 1993 certain issues were framed. The learned Judge on the strength of the evidence of P.Ws.1 and 2, D.Ws.1 to 4, Exs.A1, to All and Exs.Bl to B27 ultimately dismissed the suit and aggrieved by the same, the present appeal is preferred by the un-successful plaintiffs.

(2.) Respondent No.4 died and R.19 to R.21 were brought on record as the legal representatives of R.4. A.S.M.P.No. 1946 of 2005 was filed by the proposed parties on the ground that they are also entitled to their respective shares in the share of their father-Ram Reddy. It appears the sons of Ram Reddy filed the present suit for partition. The litigation appears to be between three branches, Buchi Reddy, Ram Reddy and Laxma Reddy. This Court by an order dated 3.11.2005 allowed the said application impleading them as respondents 22 and 23 making it clear that the entitlement or disentitlement to the respective shares of the proposed parties now being impleaded also to be decided at the time of disposal of the main appeal. Contentions of Sri Pulla Reddy:

(3.) Sri Pulla Reddy, the learned Counsel representing the appellants had drawn the attention of this Court to the respective pleadings of the parties, the evidence available on record and the issues originally settled and the issues which had been framed by virtue of an order made in LA. No.504 of 1993 and how the learned Judge erred in not deciding the issues framed by virtue of the order in I.A.No.504 of 1993. The learned Counsel would contend that this, in fact, had caused serious prejudice. The learned Counsel also had drawn the attention of this Court to Order XIV Rule 2 of the Code of Civil Procedure (hereinafter, in short, referred to as 'the Code') and would maintain that the general rule is that the matter may have to be decided on all issues. The Counsel also had explained that it cannot be said that the issues which had been left over are unnecessary issues and there are other comprehensive issues covering all the left over issues also hence, serious prejudice is caused. The learned Counsel also had explained the difference in the language introduced in Order XIV Rule 2 of the Code by virtue of 1976 Amendment Act. While further elaborating the submissions the Counsel would maintain that the respective stands taken by the parties also may have to be looked into. It is a suit for partition filed by one branch and no doubt the same is resisted on the ground that there was prior partition. This is a case where a suit for partition was instituted after the re-grant and hence, the stand taken that a suit for partition itself is not maintainable for the reason that these properties being mam properties such action cannot be maintained, also cannot be sustained. At any rate, the learned Counsel would maintain that this is a matter, which may have to be gone into at the appropriate stage. Incidentally, the learned Counsel also had referred to the order made in A.S.M.P.No.1946 of 2005 and would contend that all other aspects relating to the occupancy rights, the occupancy certificate, the orders passed by the hierarchy of revenue authorities and the writ Court, these are all matters which may have to be decided afresh by the learned Judge after giving due consideration to the issues which had been framed in LA. No.504 of 1993 also and in the absence of the same, the judgment made cannot be said to be in accordance with the Order XX Rule 5 of the Code. The learned Counsel also would contend that in a case of this nature the other side cannot take advantage of even Order XLI Rule 24 of the Code for the reason that this is a case where there is total non-consideration of the issues which had been framed in LA. No.504 of 1993 and inasmuch as the approach of the learned Judge itself being not in accordance with law, this is a fit matter to be remanded. Contentions of Sri Narender Reddy: