Andhra HC (Pre-Telangana)
Tummalapalli Anasuya vs Yenduri Parvathi And Ors. on 9 March, 2006
Equivalent citations: 2006(4)ALD266, AIR2006AP388, AIR 2006 ANDHRA PRADESH 388, 2006 (2) AJHAR (NOC) 517 (AP), 2007 AIHC NOC 116, (2006) 3 CIVILCOURTC 156, (2006) 4 ANDHLD 266, (2006) 4 ANDH LT 64, (2006) 1 ANDH LT 175
Author: L. Narasimha Reddy
Bench: L. Narasimha Reddy
ORDER L. Narasimha Reddy, J.
1. This C.M.S.A. is filed under Section 100 C.P.C., against the judgment dated 274-2005 passed by the VI Additional District and Sessions Judge (Fast Track Court), Krishna at Machilipatnam, in C.M.A. No. 28 of 2004. The C.M.S.A. was filed against the judgment and decree in O.S. No. 12 of 2002 on the file of the I Additional Junior Civil Judge, 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 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 LA. 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 a finding that the 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 present was dismissed.
4. Learned Counsel for the appellant submits that the relief claimed in O.S. No. 12 of 2002 is separate and independent, and the very fact that the suit schedule property in the present suit was included in O.S. No. 84 of 1992, cannot be a factor to contend that there was a dispute as to title of the property. Learned Counsel points out that the occasion to grant any declaratory relief in a partition suit does not arise. It is also his case that limitation at the most, can be said to have started from 13-11-1998, on which date the preliminary decree was passed in O.S. No. 84 of 1992.
5. It is a matter of record that the property in respect of which, the appellant seeks declaratory relief in O.S. No. 12 of 2002, was one of the items in O.S. No. 84 of 1992, and that the appellant herein is defendant No. 1 in that suit. In a partition suit, one of the important steps token by the Court is, to ascertain the properties that are available for partition. In that process, it undertakes the adjudication of title, vis-a-vis the said properties. The appellant did claim ownership, in respect of the said item, and it was adjudicated by the trial Court. At any rate, the inclusion of the property and claim for partition, vis-a-vis that item, brings about a change of exclusive title of the appellant. Therefore, the limitation can be said to have commenced with the presentation of O.S. No. 84 of 1992. The present suit was liable to be dismissed, not only on the ground of limitation, but also on the ground of res judicata. Viewed from any angle, the filing of O.S. No. 12 of 2002 cannot be sustained, and the trial Court has taken appropriate step in deciding the issue.
6. This Court does not find any basis to interfere with the order under appeal. The C.M.S.A. is accordingly dismissed.
7. It is however, made clear that the disposal of O.S. No. 12 of 2002 and subsequent proceedings shall be without prejudice to the right of the appellant herein, to prosecute A.S. No. 770 of 1998. There shall be no order as to costs.