IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWETNY FIRST DAY OF JANAUARY TWO THOUSAND AND FOURTEEN PRESENT THE HON'BLE SRI JUSTICE R.KANTHA RAO
CIVIL REVISION PETITION No.5218 of 2011
Between: Smt.P.Moula Bee . PETITIONER/PLAINTIFF And Pinjari Gudu Saheb and another . RESPONDENTS/DEFENDANTS The Court made the following:
THE HON’BLE SRI JUSTICE R.KANTHA RAO CIVIL REVISION PETITION No.5218 of 2011
ORDER:
This Civil Revision Petition is filed under Section 227 of the Constitution of India against the order dated 01.11.2011 passed in I.A.No.720/2011 in O.S.No.570/2010 on the file of the Court of the II Additional Junior Civil Judge, Kurnool.
2. I have heard Sri B.Nagi Reddy, learned counsel appearing for the petitioner/plaintiff and Sri A.Jayashankar Reddy, learned counsel appearing for the respondents/defendants.
3. The revision petitioner is the plaintiff and the respondents are the defendants in the suit. For the sake convenience, the parties are referred to as “plaintiff and defendants” herein.
4. The plaintiff filed the suit for partition of the plaint schedule property and for separate possession of her 1/3rd share. The plaintiff filed a petition under Order VII Rule-14(3) CPC to receive partition deed dated 26.06.1989 allegedly executed between her father and her brother which was in the possession of her brother Dastagiri (PW 2). The petition was objected by the defendants on the ground that it is filed one year after filing of the suit and there is abnormal delay in filing the document. It was also contended by the defendants that it was not stated in the affidavit filed in support of the petition as to how the document is essential for deciding the suit.
5. The trial Court dismissed the petition on the ground that in the entire plaint, the plaintiff has not taken the plea of earlier partition between her father and her brother dated 26.06.1999, but only referred to a gift deed dated 22.02.2007. The plaintiff, however, stated that she was unable to secure the partition deed and on coming to know that the said partition deed was in possession of her brother (PW 2), she filed the present petition to receive the said document.
6. The trial Court taking the view that there was no reference of the partition deed dated 26.06.1999 in the plaint, dismissed the petition filed by the plaintiff.
7. As rightly contended by the learned counsel appearing for the petitioner/plaintiff that the crucial question before the trial Court in the suit for partition is whether the suit schedule properties are ancestral properties as pleaded by the plaintiff or self-acquired properties of the 1st defendant as pleaded by the defendants. Therefore, the document is very much relevant for the purpose of deciding the crucial issue in the partition suit. The trial Court, in my view, by adopting hyper technical view, dismissed the petition.
8. Since the document is crucial one and the plaintiff came to the notice of the partition deed in possession of PW 2 subsequent to filing of the suit, the trial Court ought to have allowed the petition filed by the plaintiff. Merely because the document was in possession of the brother of the plaintiff, it cannot be said that the petitioner/plaintiff must have knowledge about the said document. The order passed by the trial Court dated 01.11.2011 in I.A.No.720/2011 in O.S.No.570/2010 is therefore liable to be set aside and accordingly the same is set aside.
9. Accordingly, the Civil Revision Petition succeeds and the same is allowed. No order as to costs.
Pending miscellaneous applications, if any, shall stand closed in consequence.
R.KANTHA RAO,J Date: 21. 01.2014 Dsr