*THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY + Second Appeal No.109 of 2010 % 16-08-2011 # Syed Ismail died per LRs ..Appellants And $ Syed Sha Fakheer died per LRs ..Respondents !Counsel for the appellants: Sri Nisar Ahmed Baig ^Counsel for respondents . : Sri Nimmagadda Satyanarayana < Gist: > Head Note: Citations: THE HON’BLE MR JUSTICE L. NARASIMHA REDDY Second Appeal No.109 of 2010 JUDGMENT: The plaintiffs in O.S.No.14 of 1995 on the file of the Court of Senior Civil Judge, Markapur, are the appellants. The suit was filed by the deceased, 1st appellant, against the 1st respondent herein, for the relief of declaration of title, recovery of possession of the suit schedule property and mandatory injunction in respect of some of the structures thereon. During the pendency of the suit, the sole plaintiff and the sole defendant died and their legal representatives are brought on record. It was stated in the plaint that the suit schedule property was acquired by the father of the 1st appellant, by name, Mahaboobmia through purchase, and after the death of Mahaboobmia, the 1st appellant and his mother inherited the property. It was pleaded that the property is situated in a village, near Markapur and his mother was residing in the house, till she died, in the year 1967. The 1st appellant, being a practicing advocate at Markapur, is said to have given the property on lease, to one, Sha Fakheer, the husband of the 1st respondent and father of respondents 2 to 8, on lease, for Rs.100/- per month, and that in the year 1977, a document, being Ex.A-8 was also executed. According to the appellants, Sha Fakheer purchased the property on the western side of the suit schedule property and made constructions therein. He is said to have died on 01-10-1991. Alleging that the respondents have not only refused to vacate the premises, on demand, but also made certain alterations in the premises, the suit was filed for the reliefs, referred to above. On behalf of the respondents 1 to 8, written-statements were filed. It was pleaded that Sha Fakheer is none other than one of the sons of the sister of the appellant, by name, Saheb Bee, and that the suit was filed as though, Sha Fakheer was stranger to the appellants. The plea as to lease of the property was denied. They have also narrated the manner in which they have enjoyed the property. Reference was made to the proceedings under A.P. Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 and the manner in which the rights were claimed by the various branches of the family. The respondents 1 to 8 have also raised the plea of adverse possession. The trial Court dismissed the suit through judgment dated 04- 12-2006. It did not record any finding on the question of adverse possession. The appellants filed A.S.No.18 of 2007 in the Court of Principal District Judge, Ongole, against the decree and judgment in the suit. The respondents 1 to 8, on the other hand, filed cross-objections, feeling aggrieved by the rejection of their plea of adverse possession by the trial Court. The lower Appellate Court partly allowed the appeal by setting aside the decree of the trial Court, and holding that the appellants have title to the extent of two-thirds of undivided share in the suit schedule property. It also passed a preliminary decree to that effect, and left it open to the parties to work out equities in the sub- divisions. Cross-objections filed by the respondents were rejected. Hence, this Second Appeal. Heard Sri Nisar Ahmed Baig, learned counsel for the appellant and Sri Nimmagadda Satyanarayana, learned counsel for the respondents. The suit was filed for three-fold relief of, i) declaration of title, ii) recovery of possession and iii) mandatory injunction. The 1st appellant pleaded, as though his parents have no other children, except himself, and that after their death, he has succeeded to the property. Respondents 1 to 8, on the other hand, stated that Sha Fakheer is none other than the son of the sister of the 1st respondent. Initially, the trial Court framed seven issues. After the legal representatives of the sole plaintiff came on record, issues were recast at their instance. Thereafter, I.A.No.210 of 2005 was filed with a prayer to recast the issues and to frame certain additional issues. That in turn resulted in framing of, as many as nine issues. In the process, the central and core issue was given almost secondary treatment. On behalf of the appellants, PWs 1 to 12 were examined and Exs.A-1 to A-18 were filed. On behalf of the respondents DWs 1 to 8 were examined and Exs.B-1 to B-16 were file. Considerable number of documents in X and C series were also taken on record. The tenacity, with which the litigation was fought, is evident from the fact that even the lower Appellate Court had to frame the points, that run into 1 ½ pages. The appeal was partly allowed, and a preliminary decree was passed. Cross-objections were rejected. The suit was filed, as though Sha Fakheer was stranger to the sole plaintiff in the suit and that the property was given on lease. The legal heirs of Sha Fakheer, who were directly made as parties to the suit; flatly denied these allegations. Their plea that Sha Fakheer is none other than one of the sons of Saheb Bee, and that she is the sister of the deceased, 1st appellant, is not denied by the appellants. Therefore, the whole complexion of the suit gets changed and the relief of declaration became untenable. At the most, the appellants could have instituted proceedings, for partition of the property. No such efforts were made. After discussing the evidence on record thoroughly, the trial Court dismissed the suit. The lower Appellate Court, however, proceeded as though the adjudication as to determination of shares of parties can be undertaken in a suit for declaration of title and recovery of possession. That approach is incorrect. The title in respect of an item of immovable property can be declared in favour of the plaintiff, if only he possesses exclusive rights over it. The suits of that nature must end up, in granting the relief or refusal of it. It case it emerges that the plaintiff does not hold title, and that he is entitled for a share in it, the matter must be left at that, leaving it open to him, to file a suit for partition. The relief of partition cannot be granted in suit, other than the one, filed for that very purpose. The reason is that, a preliminary decree can be passed only when all the persons interested in the subject-matter, or entitled to share; are present before the Court. This is particularly so, when the claims are made by the lineal descendants of the common ancestors. In the instant case, the deceased, 1st appellant approached the trial Court by stating that he is the absolute owner, and that Sha Fakheer, the husband of the 1st respondent and father of respondents 2 to 8; is almost a stranger to him. The evidence on record discloses that the deceased, 1st appellant had a sister, by name, Mahaboob bi, and that she had three sons, by name, Syed Ahmed Hussain, Syed Sha Fakheer, and Hizazi. It was only the wife and children of Sha Fakkheer, that figured as defendants 1 to 8. Partition of the property can be made, if only the other two sons, of Saheb Bi, or their lineal descendants are impleaded. Therefore, the Second Appeal is partly allowed, and the judgment and preliminary decree passed by the lower Appellate Court, to the extent it has determined the shares to the parties, are set aside. The decree passed by the trial Court shall remain. That, however, shall be subject to the right of the parties to seek the relief of partition. It shall also be open to the parties to put forward their contention, as to the relationship inter se, or their rights vis-à-vis the properties, as and when proceedings are instituted. There shall be no order as to costs. _______________________ L. NARASIMHA REDDY, J. Dt.16-08-2011. Note: LR copy to be marked. (B?O) KO