Suit not filed within the period of limitation.

The unsuccessful plaintiff in O.S.No.1325 of 2001 on the file of VIII Additional Senior Civil Judge (FTC), City Civil Court, Hyderabad, is the appellant herein. The suit was originally filed against the respondents 1 to 4 herein, who are Defendant Nos. 1 to 4 in the suit. During the pendency of the suit Defendant No.1 died, and vide Orders in I.A.No.166 of 2003 dt. 13.8.2003 his Legal Representatives were impleaded as Defendants 5 to 8. Subsequently, Defendant No.3 also died and her Legal Representatives were impleaded as Defendant Nos.9 to 15, vide Orders in I.A.No.449 of 2005, dt. 22.12.2005.

2. The suit was filed for delivery of vacant possession of suit schedule property, comprising of House bearing No.14-10-595, Lower Dhoolpet, Hyderabad.

3. The brief facts of the case are as under:

(i) The defendant Nos.1, 2 and one Amar Singh are the sons, and Defendants 3 and 4 are the daughters of the deceased Gajadhar. Amar Singh died issueless on 4.8.1991 and his wife predeceased him. Gajadhar executed a Will on 1.5.1967 in favour of the Plaintiff out of love and affection, bequeathing all his movable and immovable properties, and the father of the Plaintiff Atmaram was made executor of the Will, as the plaintiff was a minor at that time. The Plaintiffs father died on 5.5.1971 leaving behind his wife and children. Later, the Plaintiff, his mother, brother and sisters were driven out from the suit schedule house, and thus the Plaintiff was constrained to file O.P.No.26 of 1984 on the file of the Chief Judge, City Civil Court, Hyderabad for grant of probate. The said OP was converted into suit O.S.No.176 of 1985, which was decreed declaring that the plaintiff is entitled to the suit schedule property as per the Will dt. 1.5.1967. Subsequently, the Plaintiff filed E.P., and the same was dismissed against which the Plaintiff preferred revision, which was also dismissed by the High Court holding that the relief of possession of immovable property is neither claimed nor granted in the decree. Hence, the suit.

(ii) The Defendant No.1 filed written statement admitting their relationship and filing of O.P/Suit and other subsequent proceedings. It is however contended that the 2nd son of late Gajadhar by name Amar Singh was married to one Bharathi for 2nd time, and got two sons and daughter, namely, Sumran Singh, Chandan Singh and daughter Kumari Kiran, and that the first wife of Amar Singh predeceased him in 1983, and he died in 1991, leaving behind his two sons and daughter, who was residing in the suit schedule property, and that they were not impleaded as parties in the suit, which is liable to be dismissed for non-joinder of necessary parties. It is further contended that late Gajadhar purchased the suit schedule house with the joint funds of his sons, as such, he has no exclusive right to execute any Will, in favour of the Plaintiff and denied the execution of the Will, appointing the father of the Plaintiff as executor, and that the Plaintiffs family left the suit schedule house even prior to the date of execution of the alleged Will, due to family disputes. Further, the suit is barred by provisions of Order-II, Rule 2 of CPC, as the plaintiff omitted to claim the present relief in the earlier suit O.S.No.176 of 1985, and that the suit is also barred by limitation.

(iii) Defendants 6 to 8 filed their written statement denying the averments of the plant, and corroborated the averments of the written statement of Defendant No.1, which need not be reproduced.

(iv) The 2nd defendant filed written statement admitting the relationship and the litigation, and reiterated the contentions of the 1st defendant. It is further contended that the plaint is silent with regard to the dates of death of Gajadhar, Atmaram and mother of the 2nd defendant, by name Tulja Bai, who died on 07.09.1982, and she executed a Will dt. 24.6.1980, mentioning the fact that the father of the plaintiff Atmaram has been collecting amounts totalling to Rs.21,000/-