THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR Cross Objections (Sr) No.12550 of 2009 in S.A.No.1265 of 2008 Dated:- 09th March, 2011 Between:- Mohd. Habeebuddin …Petitioner AND Shaik Madar …Respondents THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR Cross Objections (Sr) No.12550 of 2009 in S.A.No.1265 of 2008 ORDER:- The Cross Objector herein – Mohd. Habeebuddin filed O.S.No14 of 2003 on the file of the Senior Civil Judge, Kamareddy, (‘trial Court’, for brevity) for partition of the suit schedule property into two equal shares for allotment of one such separate share to him and another half share to Shaik Madar. Shaik Madar filed O.S.No.6 of 2003 before the trial Court for the relief of perpetual injunction and for recovery of Rs.65,000/- against Mohd. Habeebuddin and ten others alleging that Mohd. Habeebuddin and others were interfering with his peaceful possession and enjoyment of the suit schedule property and that they caused damages to the suit schedule property. 2. For the sake of convenience, both the suits were clubbed together and necessary issues were framed by the trial Court. One of the issues that came up for consideration is whether Shaik Madar and Mohd. Habeebuddin were the co-sharers of the suit schedule property. Shaik Madar raised a plea that he has purchased the entire property with his own money for a sale consideration of Rs.10,000/- and that only to avoid income tax and other tax liabilities, he had included the name of Mohd. Habeebuddin, which is a fictitious name. It is also his case that Mohd. Habeebuddin, alleging himself to be the same person as mentioned in the sale deed, filed a suit for partition in O.S.No.14 of 2003 before the trial Court. 3. The suit filed by Mohd. Habeebuddin in O.S.No.14 of 2003 was decreed and the suit filed by Shaik Madar in O.S.No.6 of 2003 was dismissed by the trial Court by its common judgment dated 29.06.2005. Challenging the judgment passed in O.S.No.14 of 2003, Shaik Madar filed A.S.No.4 of 2006. He also filed A.S.No.5 of 2006 against the judgment passed in O.S.No.6 of 2003. The VI Additional District Judge (Fast Track Court), Nizamabad (‘lower appellate Court’, for brevity), by his common judgment dated 28.03.2008, dismissed both the appeals. When the said appeal suits were pending before the lower appellate Court, Mohd. Habeebuddin filed cross objections in A.S.No.4 of 2006. Since both the appeals were dismissed by the lower appellate Court, Shaik Madar preferred two Second Appeals before this Court being S.A.No.1265 of 2008 against the judgment and decree passed in A.S.No.4 of 2006 and S.A.No.290 of 2009 against the judgment and decree passed in A.S.No.5 of 2006. This Court, by judgment dated 18.04.2009, dismissed both the Second Appeals at the admission stage. However, the cross objections filed by the cross objector herein were not disposed of by this Court along with the Second Appeals and hence, the same is being disposed of hereby by this order. 4. The only point that arises for consideration is whether the impugned judgment is liable to be set aside. 5. As seen from the judgment dated 28.03.2008 passed in A.S.No.4 of 2006, the lower appellate Court dismissed the cross objections observing as follows:- “In view of the confirmation of the trial Court in the main appeal suit 4 of 2006, in all aspects, the cross objection stands dismissed.” 6. As seen from the ground taken in the cross objections, Mohd. Habeebuddin – the cross objector herein challenged the findings of the trial Court on issues 4 to 8 in respect of his entitlement to get his share against Shaik Madar in future mesne profits (rents of the suit schedule property and its quantum) from the date of filing of the suit till the delivery of separate possession of suit schedule property. It has to be seen that the cross objector herein filed a suit originally before the District Munisif’s Court at Kamareddy in O.S.No.101 of 1987 which was subsequently re-numbered as O.S.No.36 of 1999 and then as OS.No.14 of 2003, seeking the relief of partition of the suit schedule property into two equal shares for delivery of one of such share to him by metes and bounds and for passing the decree against the first respondent herein – Shaik Madar for future mesne profits (rents) in respect of his share from the date of suit till he is put in separate possession of the half share of the suit schedule property. 7. When the Cross Objector has taken a specific plea that the trial Court has not considered issue Nos. 4 to 8, it was obligatory on the part of the lower appellate Court to consider those points which were specifically raised by the cross objector in his cross appeal. Merely because the suit has been dismissed, it does not mean that the cross objection also has to be automatically dismissed without considering the issues raised in it. 8. In view of the same, the Cross Objections (Sr) No.12550 of 2009 in S.A.No.1265 of 2008 is allowed and the judgment of the lower appellate Court, as far as it relates to the dismissing of the cross objection in A.S.No.4 of 2006 are concerned, is set aside and the matter is remanded back to the lower appellate Court for fresh consideration of the cross objections filed by Mohd. Habeebuddin – the cross objector herein in A.S.No.4 of 2006. The lower appellate Court, after giving notices to both the parties and after hearing both sides, may decide the same as per law and shall try to dispose of the cross objections as early as possible, preferably within a period of three (03) months from the date of receipt of copy of this order. There shall be no order as to costs. __________________________________ JUSTICE B.CHANDRA KUMAR 09th March, 2011 Bvv