THE HONOURABLE SMT JUSTICE K. SUJANA APPEAL SUIT Nos.1631 OF 2018 & 34 OF 2019

COMMON JUDGMENT:

Since the lis involved in these appeals are same, they were heard together and are being disposed of by way of this common judgment.

2. The appellants in these appeals are third parties to the suit filed by respondents/plaintiffs, against the respondents/defendants vide OS.No.51 of 2005 on the file of the III Additional District Judge, Rangareddy District, at LB.Nagar, Hyderabad, seeking partition and separate possession of their share in the plaint schedule property. The said suit was decreed with costs vide judgment dated 15.11.2010 and directing the partition of plaint schedule properties in two equal shares and allotment of one such share to the plaintiffs and the other share to the defendants. Aggrieved thereby, these appeals are filed contending that they are necessary parties to the said suit.

3. The brief facts of the cases are that the plaintiffs, who are the sons of Syed Naseeruddin Hussaini, are seeking partition of the properties that originally belonged to their grandfather Late Syed Ahmadullah Hussaini. Late Syed Ahmadullah Hussaini passed away on 01.01.1965 leaving behind several properties, including agricultural lands in Sy.Nos.1, 2, 35 to 37, 96, 102, 105, 106, and 145. After his death, his two sons, Syed Naseeruddin Hussaini and Syed Pasha Hussaini, partitioned the properties among themselves. The said partition was formalized in a written document dated 15.10.1966 and as per this partition, Syed Pasha Hussaini received properties in Sy.Nos.35, 37, 96, 102, 105, and 106, while Syed Naseeruddin Hussaini received properties in Sy.Nos.1, 2, 36, and 145. One of the properties, a mango and tamarind garden in Sy.No.34, was kept joint, with the understanding that the sons would enjoy its fruits alternately. This arrangement continued until the death of Syed Naseeruddin Hussaini on 30.04.1993.

4. After the death of Syed Naseeruddin Hussaini, the plaintiffs demanded partition from the defendants, D1 and D2, who are the wife and son of Syed Pasha Hussaini. However, D1 and D2 refused to partition of the properties and instead attempted to sell them. The plaintiffs learned that D1 and D2 had entered into an agreement of sale with D3 in respect of the schedule property. In response, the plaintiffs issued a legal notice to D1 and D2 on 17.01.2005. As the dispute remained unresolved, the plaintiffs filed the said suit for partition, seeking to divide the properties among the legal heirs of Late Syed Ahmadullah Hussaini. Being aggrieved by partition of suit between the plaintiffs and defendants, the appellants filed these appeals challenging the impugned judgment dated 15.11.2010 directing the partition of plaint schedule properties in two equal shares and allotment of one such share to the plaintiffs and the other share to the defendants. Hence, these appeals.

5. Heard Sri Srinivas Velagapudi, learned counsel for appellants, Sri RA.Chary, and Sri AK.Narsimha Rao, learned counsel for respondents.

6. Learned counsel for appellants submitted that the trial Court committed grave error by not considering the true nature of the suit schedule property, and that the property was not an agricultural land, as described in the plaint, but rather comprised of several houses and plots with well-developed roads and civic amenities like electricity and water lines. He contended that the trial Court failed to consider the fact that the persons in actual possession of the property, including the appellants, were not made parties to the suit, and that the same was a fatal defect, as the plaintiffs and defendants had colluded to obtain a decree behind the back of the real parties in possession. He lamented that neither the plaintiffs nor the defendants were in possession of the suit property, and that the same is a clear indication that the suit was not genuine, but rather a collusive attempt to obtain a decree that could be used to harass the real part