IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTY FIRST DAY OF JANUARY TWO THOUSAND AND ELEVEN :PRESENT: THE HON'BLE SRI JUSTICE P. DURGA PRASAD APPEAL SUIT NO.1330 of 1994 Between: Sardar Roop Singh,S/o Sardar Kishan Singh, R/o.H.No.2-6-83, Sikhwadi, Karimnagar and others ..... PETITIONER(S) AND Sardar Baswanth Singh,s/o Sardar Kishan Singh, H.No.8-3- 318/6/3/10, Maruthinagar, Yellareddyguda, Hyderabad and other .....RESPONDENT(S)) The Court made the following: JUDGMENT: This appeal is arising out of the judgment and decree passed in O.S.No.127 of 1987 by the Subordinate Judge, Karimnagar, on 27-06-1994. 2. The appellants herein are defendants 1 to 9 in the said suit. Respondents 1 and 2 herein are the plaintiffs and respondent No.3 is defendant No.10 in the said suit. Respondents 1 and 2 are the plaintiffs in the said suit and filed the said suit for partition and separate possession of 1/3rd share in the suit schedule property. According to them plaintiff No.1 is the father of plaintiff No.2 and plaintiff No.1 and defendant No.1 are brothers. Defendants 2 to 7 are also brothers and children of defendant No.1. Defendants 8 and 9 are the children of late Sardar Raja Singh, elder brother of plaintiff No.1 and defendant No.1. Plaintiffs are the owners and possessors of 1/3rd share in the suit schedule land. Defendants 1 to 7 are jointly entitled to 1/3rd share and defendants 8 and 9 are also jointly entitled to 1/3rd share. The suit schedule land is an ancestral joint family property of the plaintiffs and defendants 1 to 9. Virtually the father of plaintiff No.1 was the owner and after his death plaintiff No.1, defendant No.1, defendant No.8 and defendant No.9 succeeded the said property. Taking advantage of the absence of plaintiff No.1, defendants 1 to 9 have negotiated sale of land to third parties and thereby requested defendant No.1 to divide the suit schedule property and deliver the possession of his 1/3rd share. Plaintiffs came to know that defendant No.10 has set up a claim to the suit schedule land and she is trying to occupy the same, and thereby it has been impossible for the plaintiff to continue in possession and ownership of the land jointly with the defendant. Therefore, prayed for partition and separate possession of their 1/3rd share. 3. The appellants herein who are defendants 1 to 9 remained ex parte in the said suit. Respondent No.3 who is defendant No.10 contested the said suit by filing the written statement, denying the allegations made in the plaint and according to him after the death of Sardar Kishan Singh, Sardar Raja Singh, father of defendants 8 and 9 had filed a suit for partition and separate possession of all the properties belonging to late Sardar Kishan Singh including the suit schedule property in Sy.No.964/B measuring Ac.3-19 gts., and the said land is item No.17 of the schedule of the properties in O.S.No.7 of 1984 on the file of the said Court. Plaintiff No.1 is defendant No.2 in the said suit and defendant No.1 in the said suit is defendant No.1 in this suit. Defendant No.1 has filed written statement in the said suit stating that the land in Sy.No.965/B was allotted to him. The said suit was compromised as per the compromise petition filed on 24-03-1972 in I.A.No.233 of 1972 and the said suit was decreed allotting the suit schedule property to the share of defendant No.1 and defendant No.1 has sold Ac.3-00 gts., of land out of Ac.3-19 gts., to the defendants on 02-06-1976 and executed registered sale deed and later on rectification instrument was executed by defendant No.1. Defendant No.1 was also sold his share of land in Sy.No.965 to an extent of Ac.4-00 gts., of land to United Teachers Federation, Karimnagar branch. The defendant has sold Ac.0-36 gts., of land out of Ac.3-00 gts., purchased by her in Sy.No.964/B to Agricultural Officer, Co-operative House Building Society Limited, Karimnagar, under a registered sale deed executed on 30- 06-1981. Thus, the plaintiffs have no manner of right or interest over the suit schedule land which fell to the share of defendant No.1 and the suit is not maintainable under law in view of the final decree passed in O.S.No.7 of 1964, dated 25-03-1972. Hence, the suit is liable to be dismissed. 4. The lower court has framed the following issues for consideration: 1. Whether the plaintiffs are in possession of the suit property ? 2. Whether the suit is within limitation ? 3. Whether the suit is properly valued and Court fee paid is correct ? 4. Whether the plaintiffs are entitled to grant of relief of partition and separate possession as prayed for ? 5. To what relief ? 5. On behalf of the plaintiffs PWs.1 and 2 were examined and Exs.A-1 to A-12 were marked. On behalf of defendant No.10 DWs.1 to 3 were examined and Exs.B-1 to B-18 were marked. 6. The lower Court by taking into consideration of both oral and documentary evidence dismissed the suit holding that the suit schedule property is not available for partition. Aggrieved by the judgment and decree, defendants 1 to 9 therein filed the present appeal claiming that they are all sold Ac.3-00 gts., of land in Sy.No.364/A and not sold any land in Sy.No.364/B, as such, they are entitled for the land in Sy.No.364/B. 7. Now the point for determination in this appeal is: Whether the appellants are entitled for the relief as prayed for ? 8. Admittedly, the appellants herein remained ex pare in the said suit. More over, the suit is filed by the plaintiffs claiming for partition of their 1/3rd share in the suit schedule property i.e., Ac.3-19 gts., in Sy.No.364/B and the said suit was dismissed holding that the plaintiffs are not entitled for the relief as the said property is not available for partition, in view of the earlier partition already taken place. The plaintiffs therein have not questioned the said judgment and decree. Since the suit is filed by plaintiffs, the defendants 1 to 9, who are the appellants by remaining exparte in the suit cannot claim for any relief in respect of right over the land in Sy.No.364/A in the present suit. Therefore, the appellants herein are not entitled for the relief in this appeal as prayed for. However, they are entitled to agitate their rights by filings separate suit if they choose to file. Accordingly, the point is answered. 9. In the result, the appeal is dismissed without costs. However, the appellants are at liberty to agitate their rights by filing a separate suit. _______________________ P. DURGA PRASAD, J January 21, 2011 PN THE HON'BLE SRI JUSTICE P. DURGA PRASAD APPEAL SUIT No.1330 of 1994 January 21, 2011