Telangana High Court
Noorul Qamar 2 Others vs Rahatunnisa Begum 15 Others on 4 June, 2018
THE HON'BLE SRI JUSTICE D.V.S.S. SOMAYAJULU
CCCA No. 226 OF 2017
Judgment:
This CCCA is filed against the judgment and decree dated
03.08.2017 passed in O.S.No.248 of 2006 by the learned X Additional
Chief Judge, City Civil Court, Hyderabad.
2. The said suit was filed for partition and separate possession of the
suit schedule property and for grant of perpetual injunction restraining the
defendants from creating a charge or dealing with the property in any
manner. The property in question in the suit is a site admeasuring 558
sq. yards along with building bearing Door No.16-7-784, situated at
Chadargath, Azampura, Hyderabad. The claim of the plaintiffs in the suit
is that they are the children of one late Quddus Ahmed and his first wife.
Defendants 5 and 7 are the sons of Quddus Ahmed and the first wife.
Defendant No.1 is the second wife of late Quddus Ahmed and defendants
2 to 4 are the children of late Quddus Ahmed and defendant No.1. The
suit is filed for partition of the property.
3. Before the trial Court, PW.1 was examined and Exs.A1 to A6 were
marked on behalf of the plaintiffs. No oral or documentary evidence was
adduced on behalf of the defendants.
4. During the course of trial, it came out that apart from the suit
schedule property there is another property bearing Door No.16-7-783
belonging to late Quddus Ahmed. Therefore, the lower Court on
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appreciation of evidence came to the conclusion in Issue No.1 that the
suit for partial partition is not maintainable and, accordingly, dismissed the
suit vide its impugned judgment and decree.
5. In the course of CCCA which was filed to set aside the said
judgment and decree, a counter affidavit along with material papers was
filed by the contesting respondents, wherein they have pleaded in
paragraph 12 that another suit in O.S.No.349 of 2006 was filed for
partition of the very same property in which the appellants herein are also
parties. Initially, the said suit in O.S.No.349 of 2006 was dismissed and
later the same was restored to file by virtue of the orders of this Court
dated 18.06.2013 passed in C.R.P.No.6030 of 2010. According to the
averments of the counter affidavit, the suit in O.S.No.349 of 2006 is
stayed. Learned counsel for the respondents submits that the stay was
obtained by them under Section 10 of the Civil Procedure Code in view of
the pendency of both the suits.
6. In view of the fact that O.S.No.248 of 2006 has been dismissed, it
is for the lower Court to decide on the said application.
7. Coming to the averments made in the present CCCA, learned
counsel for the appellants urged that the matter should be remanded to
the lower Court to be tried along with the said O.S.No.349 of 2006. This
Court is of the opinion that remand cannot be ordered in the facts and
circumstances of the case, as the observation of the lower Court that a
suit for partial partition is not maintainable is correct and as per law. In
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the circumstances, this Court finds that there are no merits in the present
CCCA and the same is liable to be dismissed.
8. The CCCA is, accordingly, dismissed. There shall be no order as to
costs. However, as the suit in O.S.No.349 of 2006 is pending and the
appellants herein are also parties to the said suit, they are at liberty to set
out their defences in the said suit since the said suit is also for partition of
the very same property.
9. As a sequel thereto, the miscellaneous petitions, if any, pending in
this appeal shall stand closed.
________________________
D.V.S.S. SOMAYAJULU, J.
Date: 04.06.2018 Nsr 4 THE HON'BLE SRI JUSTICE D.V.S.S. SOMAYAJULU CCCA No. 226 OF 2017 Date: 04.06.2018 Nsr