HON’BLE SRI JUSTICE V.SURI APPA RAO C.C.C.A. No.163 of 2000 Date: 01-4-2011 Between 1. Yogeshwar Bhatt and 5 others … Appellants/Plaintiffs and 1. Dineshwar Bhatt and 4 others … Respondents/Defendants HON’BLE SRI JUSTICE V.SURI APPA RAO C.C.C.A. No.163 of 2000 Judgment: This appeal is filed under Section 96 of CPC against the judgment and decree dated 24-4-2000 in O.S.No.183 of 1992 on the file of the IV Senior Civil Judge, City Civil Court, Hyderabad, whereunder the suit filed by the appellants-plaintiffs for partition of the suit schedule property was dismissed. 2. For the sake of convenience, the parties herein are referred to as they were arrayed in the trial Court. 3. The relevant facts leading to this appeal are as follows: The suit schedule property is the self-acquired property of Dr. B.K. Bhatt, who worked as Professor in Sanskrit, Osmania University. He died in the year 1981 after retirement. After his death the suit schedule property was devolved on the plaintiffs and the defendants and the wife of Dr. B.K. Bhatt who also expired on 19-5-1983. After her death her share devolved on the parties to the suit who are entitled to 1/8th share each. The 1st defendant is in occupation of a portion of the suit schedule property. Rest of the property is leased out and managing the same as co-heir and realizing the income thereon. Since 1986 the 1st defendant is not paying the plaintiffs’ share of income. Therefore, the plaintiffs are demanding the defendants for partition and possession of 1/8th share and they also got issued a legal notice dated 12-3-1991. The defendants kept quiet, therefore the plaintiffs filed the suit for partition. 4. In the written statement, the 1st defendant contended that his father Dr. B.K. Bhatt applied for allotment of two plots in the year 1945- 46 to Hyderabad Development Cooperative Housing Society. The Society allotted two plots to him and a house was constructed by the said Society in the year 1949-50 in the plinth area admeasuring about 950 square feet. Subsequently, the father of the plaintiffs and the defendants constructed a prayer hall “Shree Arubindo Circle” in the year 1965 by his own money and also by taking donations from the general public. The prayer hall was constructed adjacent to the residential building admeasuring 500 square feet. The prayer hall is meant for performing poojas and offering prayers by family members of Dr. B.K. Bhatt and also general public. The 1st defendant has been offering poojas regularly and looking after the maintenance of the same as per the will and wish of his father as his father entrusted the said responsibility and allotted the residential premises to him to reside therein as absolute owner. The plaintiffs and other defendants are aware of it. His father also wrote a letter to the Society to register the said two plots in the name of the 1st defendant as the registration was not done by the said Society in the name of his father. The 1st defendant joined in service in the year 1961 in Director of Settlement and Land Records and also in the year 1966 he joined in Deena Bank. He spent his entire earnings for the benefit and development of the family. He and his father purchased open land admeasuring 400 square yards at Bhagyalaxmi Nagar in Kavadiguda in his name and subsequently at the time of construction of the house, he has contributed substantial amount from his earnings. From the beginning, the 1st plaintiff did not take any interest for the family as his father retired in the year 1963 itself. The 1st plaintiff is residing in Kavadiguda for the last more than 20 years without taking responsibility of the family. The 1st defendant and his father purchased old house at Pondicherry in the year 1967 in the name of his mother and in the names of the defendants 3 and 4. Subsequently, a building was constructed after demolishing the old house in the year 1975. He contributed huge amounts in that regard by borrowing the amounts from the third parties and loans from his bank. The 1st defendant used to send monies to his sisters and 2nd defendant who were residing at Pondicherry for their expenses. Therefore, his father allotted the sit property towards his share and his father used to say orally that the said suit schedule property belongs to the 1st defendant as he has to enjoy the same with absolute rights. Late Dr. B.K. Bhatt performed the marriages of the plaintiffs 2 and 3 in the year 1952 itself. Subsequently amounts were given to them. The marriage of 4th defendant was performed in the year 1980 and the 1st defendant contributed substantial amount in that regard. His father gave entire cash and share in Pondicherry house to the 2nd defendant. There was lot of gold jewellery to his parents and it was given to defendants 3 to 5 besides share in Pondicherry house. Thus, the properties were already partitioned and the shares were allotted by the father during his life time. Hence, no joint family is in existence and as such the plaintiffs and other defendants are not entitled for partition. It is further contended that the suit property being comprised of prayer hall, which is a religious institution, cannot be partitioned. The 1st defendant is the absolute owner of the schedule property. He sacrificed his life for development of his family and has not saved any single pie. The suit is, therefore, liable to be dismissed. 5. The 2nd defendant filed a separate written statement supporting the claim of the plaintiffs and the same was adopted by the defendants 3 to 5. Thus, the defendants 2 to 5 also therefore contend that the suit schedule properties are liable for partition. 6. On the basis of the above pleadings, the trial Court framed the following issues: (1) Whether the plaintiffs are entitled for the preliminary decree for partition and separate possession in respect of suit schedule property as prayed for ? (2) Whether the suit properties are self acquired property of Dr. B.K. Bhatt are liable for partition ? (3) Whether the plaintiffs are entitled for the rendition of accounts from the 1st defendant in respect of the income of the suit property ? (4) To what relief ? 7. P.Ws.1 and 2 were examined on behalf of the plaintiffs and marked Exs.A-1 to A-6. D.Ws.1 to 5 were examined on behalf of the defendants and marked Exs.B-1 to B-32. 8. Considering the oral and documentary evidence adduced by both the parties, the trial Court dismissed the suit on the ground that there was prior partition between the parties and that the plaintiffs are not entitled to seek for partition of the schedule property. 9. The 1st plaintiff filed C.C.C.A.M.P.No.465 of 2008 under Order XLI, Rule 27 of CPC to receive the development agreement dated 24-12-2003 executed by the 1st defendant in favour of M/s. Anjana Builders in respect of the suit schedule property as additional evidence in the appeal, stating that the 1st defendant entered into a development agreement dated 24-12-2003 with M/s. Anjana Builders in respect of the suit schedule property and received an amount of Rs.2,00,000/- under the said document by way of a cheque drawn on Canara Bank, Kukatpally. The said development agreement entered into by the 1st defendant is contrary to the stand taken by him in the written statement. The 1st defendant taking advantage of dismissal of the suit entered into the said agreement. The 1st plaintiff made efforts to secure a copy of the said agreement dated 24-12-2003 but he could get a photocopy of the agreement. Therefore, he filed a photo copy of the development agreement dated 24-12-2003 as additional evidence to substantiate his contention in the appeal. Therefore, the photocopy of the development agreement dated 24-12-2003 executed by the 1st defendant may be taken as additional evidence in the above appeal. 10. The 1st defendant filed a counter contending that his late father Dr. B.K. Bhatt partitioned the properties under a family settlement and the plaintiffs and the defendants are living separately since 1975 onwards at the respective places as per the family settlement. The contention of the 1st plaintiff that the 1st defendant entered into an agreement with M/s. Anjana Builders is created and invented for the purpose of the miscellaneous petition. He is denying the execution of the development agreement dated 24-12-2003. The development agreement cannot be admitted into evidence and cannot be considered as additional evidence. The document is not admissible either on facts or under law. Therefore, the miscellaneous petition filed by the 1st plaintiff is liable to be dismissed. 11. The point for consideration is, whether the miscellaneous petition filed by the 1st plaintiff under Order XLI, Rule 27 of CPC is maintainable during the pendency of the appeal ? 12. Point:- The suit filed by the 1st plaintiff and others was dismissed by the trial Court on the ground that there was prior partition even during the life time of Dr. B.K. Bhatt who acquired the properties. So far as the partition of the suit schedule property is concerned, the 1st defendant has pleaded in the written statement that the schedule property is acquired by his father and he also contributed some amount for construction of the prayer hall etc., and residing in the house and further contended that the prayer hall and the property cannot be alienated and the prayer hall was constructed by the father of the parties in the year 1965 itself adjacent to the residential building by his own money and also by taking donations from the general public. The prayer hall is meant for offering poojas by the family members and also general public. The prayer hall was constructed in the name of “Sri Arabindo Circle”. 13. At paragraph 12 of the judgment, the trial Court observed that admittedly D.W.1 has been in possession of the residential house and has been looking after the prayer hall since 1975 onwards. Exs.B- 1 to B-10 photos of the suit property show that the prayer hall with the name of “Sri Arabindo Circle” is inscribed and public are attending the prayers. It was further observed that Exs.B-24 to B-32 receipts issued in respect of the donations from general public and on behalf of Sri Arabindo Circle, which establish and corroborate that late Dr. B.K. Bhatt has constructed prayer hall with his monies and with the funds collected from general public. At paragraph 15 of the judgment, it was observed by the trial Court that in the year 1950 the father of the parties constructed a house in the suit schedule property and a prayer hall in the year 1964. 14. The defendants thus contended that the suit schedule property, which includes prayer hall, also was meant for performing prayers by the family members and also by the general public from whom donations were also collected for construction of the prayer hall. 15. Considering the plea and the evidence of the defendants, the trial Court held that there was prior partition and the prayer hall “Sri Arabindo Circle” was meant for performing poojas by the family members and general public, and dismissed the suit. 16. The plaintiffs now contended that though the 1st defendant has taken a stand during trial that the 1st defendant entered into contract with M/s. Anjana Builders for development of the suit schedule property, contrary to the stand taken by him in the written statement. Of course, the 1st defendant denied execution of the development agreement in favour of M/s. Anjana Builders on the ground that the photocopy of the document filed by the 1st plaintiff is not admissible in evidence. The description of the 1st defendant is clearly mentioned in the photocopy of the development agreement and appears to have signed by the 1st defendant. Therefore, it is for the plaintiffs to prove that the 1st defendant entered into a development agreement with M/s. Anjana Builders by summoning the document from the parties and by adducing necessary evidence to the said document. 17. It is, therefore, just and necessary in the interest of justice to remand the suit to the trial Court i.e., the IV Senior Civil Judge, City Civil Court, Hyderabad with a direction that the development agreement dated 24-12-2003 may be admitted as additional evidence by permitting both the parties to adduce further evidence and to decide the aspect as to whether the alleged development agreement filed by the 1st plaintiff is true and valid and the execution of the alleged development agreement is contrary to the stand taken by the 1st defendant in the written statement and to dispose of the suit afresh within six months from the date of receipt of a copy of this judgment. 18. Since C.C.C.A.M.P.No.465 of 2003 is disposed of accordingly, the impugned judgment and decree passed by the trial Court are set aside and the suit O.S.No.183 of 1992 is remanded to the trial Court for fresh disposal according to law, after giving reasonable opportunity to both the parties, as indicated above. 19. In the result, the appeal is allowed accordingly, in the circumstances, without costs. _____________________ V.SURI APPA RAO, J. 01st April, 2011. Ak HON’BLE SRI JUSTICE V.SURI APPA RAO C.C.C.A. No.163 of 2000 01st April, 2011.