AITHA DUBBA RAJAM ALIAS RAJU Vs. AITHA POCHAIAH

JUDGEMENT

(1.) This Revision Petition is filed by the plaintiff in O.S.No.29 of 2002 on the file of the Senior Civil Judge, Siddipet. The respondents are the defendants in the said suit. The suit was filed for partition of the suit schedule lands into four equal shares and to allot one such share to the plaintiff.

(2.) A preliminary decree was passed on 30-8-2003 declaring that the petitioner is entitled to 1/4th share and a Commissionera was appointed in the final decree petition and the Commissioner divided the properties into four equal shares and the petitioner has to be allotted one such share. The defendants 1 to 11 remained ex parte and respondent No.12 was impleaded by order in I.A.No.239 of 2005. She filed a counter in the final decree petition stating that part of the suit property was purchased by her under a sale deed of the year 1995 and she was also inducted into possession thereof and she is in possession and enjoyment of the property. The plaintiff behind her back obtained an ex parte decree against the other respondents including her property also for partition. The plaintiff filed I.A.No.280 of 2003 for passing a final decree and in pursuance of that, the lands were divided by allotting shares to the respective sharers as per the preliminary decree and the lower Court passed a final order. In the order, the lower Court observed that the suit was filed in the year 2002 by the petitioner against respondents 1 to 9 for partition and separate possession of the suit schedule lands and the petitioner herein is not a party to the suit.

(3.) The 12th respondent contended that she is the owner and possessor of the land to an extent of Ac.2-24 guntas in all forming part of Sy.Nos.2179 and 2183 in respect of 0-03 guntas, 0-07 guntas, 0-03 guntas, 0-29 guntas and Ac.1-02 guntas in Sy.Nos.2183 to 2187 respectively which was owned by her under a registered sale deed which was included in the plaint schedule without impleading her as one of the defendants in the suit. The lower court observed that no property of a third party can be involved in any suit for partition without notice to such party depriving the right of such party to put forth her claim in respect of the property. Despite the fact that respondent No.12 has purchased the property under a valid registered sale deed previously, she was not made a party to the suit. One Byri Raja Mallu was the pattedar of the property purchased by the 12th respondent and he is competent for alienation of the property in respect of the 12th respondent. Suspecting the said fact, the decree was obtained behind the back for all the schedule properties including the property purchased by the 12th respondent. The husband of the 12th respondent who was 9th defendant in the suit also remained ex parte, therefore, it cannot be said that the 12th respondent is aware of the proceedings. The rights of the 12th respondent over the property cannot be affected in any manner. The properties owned and possessed by the 12th respondent cannot be made part of such division for passing any final decree. The only remedy left to the petitioner is to seek fresh division of the property under the decree for partition excluding the lands of the 12th respondent. The 12th respondent came on record to explain her rights to avoid multiplicity of litigation. The petitioner also could not make out a case that the properties mentioned by the 12th respondent are also liable for partition. The lower Court, accordingly, dismissed the final decree petition by observing that without prejudice to the rights of the petitioner for claiming the final decree by appointing a Commissioner for division of the suit property after excluding the property of the 12th respondent in terms of the preliminary decree. Being aggrieved by the dismissal of the final decree petition covered by I.A.No.280 of 2003, the plaintiff-petitioner filed the present Revision contending that in the preliminary decree in a partition suit, where the rights of the parties are decided finally, they can be set aside only in the appropriate first appeal.