THE HONOURABLE SMT. JUSTICE K. SUJANA I.A.Nos.1 of 2024 In/and CITY CIVIL COURT APPEAL No.79 of 2011

COMMON JUDGMENT:

Challenging the judgment dated 14.02.2011 passed in O.S.No.100 of 2008 by the learned XI Additional Chief Judge (Fast Track Court), City Civil Court, Hyderabad, the present City Civil Court Appeal is filed.

2. The brief facts of the case are that the plaintiffs had filed the suit seeking partition of Schedule A and B properties into five equal shares and allotment of one such share each to themselves and the defendants, along with mesne profits, alleging that the properties were originally purchased by their grandparents, K. Swamy and his wife Agamma, under two registered sale deeds, and on their intestate death, the properties devolved equally upon their three sons and three daughters. They claimed entitlement to 1/5^th share each along with defendant Nos.1 and 4, asserting that the widow and child of the third son, Krishna, had left the family and their whereabouts were unknown, and that defendant No.1 had refused to partition the property or pay their share of rents.

3. Defendant No.1, adopting a common written statement for other defendants, admitted the acquisition and relationship but contended that an oral partition took place in the year 1985 wherein the suit properties fell to the share of his mother and mentally retarded younger brother Krishna, and that his mother, being the absolute owner after the death of Krishna, had executed a Will dated 25.01.1999 in his favour, under which he became the exclusive owner; he relied on certain sale deeds, a GPA, and earlier litigation (OS No. 6280/1998) to support his plea.

4. Basing on the above pleadings, the trial Court framed four issues and additional two issues and on behalf of the plaintiffs i.e., PW.1 was examined and Ex.A1 and A2 were marked. DW.1 was examined and Exs.B1 to B4 were marked on behalf of the defendants.

5. After hearing both sides, the trial Court dismissed the suit holding that the defendants had produced evidence sufficient to believe the oral partition and existence of the Will but held that failure to produce the Will meant exclusive rights in favour of defendant No.1 were not proved and that the legal heir of Krishna was a necessary party, and non-joinder was a technical defect fatal to the suit. Aggrieved thereby, the plaintiffs filed the present City Civil Court Appeal.

6. Heard Sri D. Srinivasa Rao, learned counsel appearing on behalf of the appellants as well as Smt. Seema Yasmeen, learned counsel representing Sri C. Vikram Chandra, learned counsel appearing on behalf of the respondents.

7. Learned counsel for the appellants submitted that the judgment under appeal was contrary to law, facts, pleadings, and evidence on record, and that in the given circumstances, based on oral and documentary evidence, the trial Court ought to have decreed the suit for partition as prayed for. He further that the trial Court committed a serious error in dismissing the suit on the technical ground of non-joinder of the legal heirs of K. Krishna, the son of the common ancestors K. Swamy and K. Agamma, when such a plea was neither raised in the written statement nor supported by evidence and that the whereabouts of the wife and children of the Krishna were admittedly not known to either party, and therefore non-joinder was not fatal to the suit.

8. Learned counsel for the appellants contended that if the trial Court considered them necessary parties, it ought to have reserved a share in their favour while allotting the remaining shares as per the Hindu Succession Act. He further contended that the trial Court, having found that the oral partition and Will pleaded by the defendants were not proved, should have granted partition in favour of the plaintiffs regardless of whether Krishna’s legal representatives were impleaded and that in a partition suit, non-joinder of a necessary party is not fatal, and the trial Court should not have dismissed the claim witho