TUMMALAPALLI ANASUYA Vs. YENDURI PARVATHI

JUDGEMENT

(1.) This C.M.S.A. is filed under Section 100 C.P.C., against the judgment dated 27-4-2005 passed by the VI Additional District & Sessions Judge (Fast Track Court), Krishna at Machilipatnam,in C.M.A.No.28 of 2004. The C.M.A. was filed against the judgment and decree in O.S.No.12 of 2002 on the file of the I AdditionalJuniorCivilJudge, Machilipatnam.

(2.) The appellant herein filed the suit for the relief of declaration of title in respect of the suit schedule property. That very property was one of the items of the Schedule, in O.S.No.84 of 2002 (sic. 1992) filed by the 1st respondent herein in the Court of Senior Civil Judge, Machilipatnam, for the relief of partition. The appellant figured as defendant No.1 in that suit. A preliminary decree was passed on 13-11-1998 in that suit, and the appellant is said to have filed A.S.No.770 of 1998 in this Court against the preliminary decree.

(3.) The appellant filed O.S.No.12 of 2002 on 12-11-2001. The 1st respondent filed I.A.No.757 of 2003, with a prayer to try the issue of limitation as a preliminary issue. The contention was that she filed the suit for partition, way back in the year 1992, in respect of the subject-matter in O.S.No.12 of 2002 and certain other property, and that the appellant was very much a party to that suit. She pleaded that with the inclusion of the said item in O.S.No.84 of 1992, the title of the appellant stood challenged; the limitation for seeking a declaratory relief expired in the year 1995, and that the present suit was barred by limitation. The trial Court allowed the I.A., on 28-8-2003, and has taken the same as a preliminary issue. It recorded afindingthatthe suit was barred by limitation and dismissed O.S.No.12 of 2002 on 5-7-2004.C.M.A.No.28 of 2004 filed by the petitioner was dismissed.