THE HON’BLE MR JUSTICE B.PRAKASH RAO AND THE HON’BLE MR JUSTICE R. KANTHA RAO C.C.C.A.No.48 of 2003 DATED: 20.10.2010 BETWEEN: Smt P.Kalyani .. Appellant/D2 And Sri K.S.Vijaya Kumar and another .. Respondents/Plf./D1 THE HON’BLE MR JUSTICE B.PRAKASH RAO AND THE HON’BLE MR JUSTICE R. KANTHA RAO C.C.C.A.No.48 of 2003 JUDMENT: (Per RKR,J) This is an appeal from the judgment dated 15.11.2002passed by the VII Senior Civil Judge, City Civil Court, Hyderabad in O.S.No.1077 of 1997. The suit is for partition of two items of properties viz. item No.1 i.e. a plot bearing No.1045 admeasuring 1268 square yards and item No.2 i.e. Ac.2.17 cents of wet land in Gottukukkala village of Kanchikacharla mandal of Krishna District. The first respondent is the plaintiff. He filed the suit for partition of schedule mentioned properties in to three equal shares and to allot one such share to him. The appellant is the sister of the first respondent and she is the second defendant in the suit. The second respondent is the father of the appellant and first respondent and he is the first defendant in the suit. The learned trial Court decreed the suit in favour of the plaintiff partitioning the ‘A’ and ‘B’ properties into three shares and allotting one such share to the first respondent. For the sake of convenience the parties will be referred as ‘plaintiff and defendants’ as they were arrayed in the original suit. The brief facts relevant for considering the appeal as per the contentions of the parties to the suit may be stated as follows: According to the plaintiffs the joint family consisting of the first defendant and his brother late Tiruvengala Charyulu was having landed property of an extent of Ac.8.00 cents of wet land in Kuntamukkala village,Mylavaram taluk, Krishna District, presently G.Konduru Mandalam, Krishna Distrit and an extent of Ac.6.08 cents of dry land in Vellaturu village and Ac.04-00 acres of dry land in Kuntamukkala village and Ac.9.44 cents of land in Sy.No.486-487 at Gottumukkala village of Krishna District. Most of the properties were sold away and in the year 1977 the remaining properties were partitioned. Under the partition, the first respondent got Ac.2.17 cents wet land in Gottumukkala village which is shown as item No.1 in the plaint schedule. With his income from the said land and also with the income of his wife late Smt.P.Venkatamma Purushotham who was a post-graduate and was working as a lecturer, the first defendant purchased plot bearing No.1045 measuring 1268 square yards from Jubilee Hills Co-operative House Building Society, Hyderabad. The sale deed dated 21.08.1987 was also executed in his favour by the society. Therefore, the plaintiff contends that the said property as well as Ac.2.17 cents are joint family properties. However, he admits that the first defendant transferred his membership in the Jubilee Hills Co-operative House Building Society,Hyderabad in favour of the second defendant. The first defendant supported the version of the plaintiffs and his version is that he never intended to settle the property in favour of the second respondent, he only transferred the membership in her name, the title had never been transferred in her favour and therefore, the property still continues to be joint family property and all the three have equal shares in the said property, so also in the landed property of an extent of Ac.2.17 cents which is shown as item No.2. Whereas, the contention of the second defendant is that the originally the item No.1 which is the house site of an extent of 1268 square yards is the property purchased from the salary o her father (first defendant) and her mother and it is not the joint family property. In fact, according to her, Ac.2.17 cents of landed property which is shown as item No.2 in the schedule is also not the joint family property and only for the purpose of filing partition suit, the said property is mentioned as joint family property. It is also her contention that subsequent to the transfer of membership, she became absolute owner of the property and the municipality also gave permission to construct the house and electricity connection was provided, but with a view to have wrongful gain, the plaintiff is claiming it to be the joint family property and the first defendant is acceding to the contention of the plaintiff only with a view to do some favour to him. It is also the version of the second defendant that the land of extent of Ac.2.17 cents in Gottumukkula village has not been yielding any income and if at all there is a meager income from the said land, it is not sufficient to purchase the item No.1 of the schedule mentioned property. She further contended that there is a plot in which the plaintiff is residing at Delhi and also another house at Methodist colony near ESI Hospital, Hyderabad which are in fact, the joint family properties but they are not included in the schedule by the plaintiffs and therefore the suit is not maintainable. Basing on the above contentions, the trial Court framed the following issues: 1) Whether the item No.1 of the plaint schedule properties is acquired with income on the ancestral properties? 2) Whether item No.1 of the schedule properties is self-acquired property of D-1? 3) Whether there are other joint family properties liable for partition and if so, whether the suit for partial partition of the properties is maintainable? 4) Whether the plaintiff is entitled for partition and if so, in which properties? 5) To what result? Before the learned trial Court PW-1 is examined and Exs.A-1 to A-14 were marked on behalf of the plaintiff and DWs.1 and 2 were examined and Exs.B-1 to B-5 were marked on behalf of the second defendant. The learned trial Court answered all the issues in favour of the plaintiff and against the second defendant and passed a preliminary decree in favour of the plaintiff and against the second defendant allocating 1/3rd share to the plaintiff as prayed for, as against the same, the present appeal is preferred. We have heard both sides. The trial Court in the process of passing a preliminary decree did not address the contentious issues involved in the suit. Absolutely there was no evidence before the trial Court except the oral testimony of PW-1 in proof of the fact that item No.1 of the schedule mentioned property was purchased with the income from joint family properties. Further, there is no specific denial by the plaintiff as to the existence of a plot in Delhi and also a house in Methodist colony nears ESI Hospital, Hyderabad and moreover, there is no evidence showing as to whether those properties are joint family properties or self-acquired properties of the plaintiff. The contention of the second defendant is that the first plaintiff gave the house in the Methodist Colony to the plaintiff and transferred the house site in item No.1 of the schedule mentioned properties in her favour and only with a view to have wrongful gain and harass the second defendant, the plaintiff filed the present suit. The learned trial Court also did not consider the crucial issues as to whether item No.2 which is a landed property of an extent of Ac.2.17 cents is not the joint family property and as to whether the house plot in Delhi and house in Methodist Colony, Hyderabad are the joint family properties and whether the suit is bad for partial partition. Only basing on some admissions in the evidence of the second defendant the trial Court by its judgment passed a preliminary decree. Since the trial Court did not frame proper issues and did not apply its mind to the contentious questions of fact and law involved in the suit, the preliminary decree passed by the trial Court is not sustainable and is liable to be set aside in this appeal. Further, in our opinion to arrive at a just decision of the case, the parties have to be afforded sufficient opportunity to adduce enough evidence to substantiate their respective contentions. We accordingly, set aside the preliminary decree passed by the learned trial Court and remand the matter back, with a direction to the trial Court to frame appropriate issues, afford opportunity to both parties to lead evidence and to dispose of the suit within a period of six months by delivering a reasoned judgment. The appeal is disposed of with the directions indicated above by setting aside the decree and judgment passed by the trial Court. There shall be no order as to costs. _______________ B. PRAKASH RAO,J _______________ R. KANTHA RAO, J Date: 20.10.2010. ccm THE HON’BLE MR JUSTICE B.PRAKASH RAO AND THE HON’BLE MR JUSTICE R. KANTHA RAO C.C.C.A.No.48 of 2003 Date: 20-10-2010