V. Haripriya Reddy, Wo v. Vijender Reddy, Aged. Major, R/o H.No p

Counsel for the Respondent Nos.3,4,5,6 & 7: SRI M/s. C.V.t,l.MURTHY Counsel for the Respondent Nos.8,10,9 & 11: SRI RAKESH SiANGHI The Court made the following: ORDER. :-i1 n THE HONOURABLE DR. JUSTICE G. RADHA RANI CIVII- REVISION PETITION No.7l5 of 2020 ORDER: This Civil Revision Petition is filed by the petitioner - plaintifl aggrieved by the order of dismissal of I.A.No.350 of 2017 in O.S.No.l22 of 1997 dated

22.11.2019 passed by the learned II Additional Chief Judge, City Civil Court, Hvderabad.

2. I.A.No.350 of 2017 is flled by the petitioner plaintilf seeking permission to adduce oral and documentary evidence to substantiate his claim in respect of the amended item No.5 of "B" schedule property as per the amended plaint dated 10.04.2003 flled in the subject suit. The plaintillfiled an affidavit in support of the application stating that he filed O.S.No.755i1991 (old), 12211991 (new) on the file of the II Additional Chief Judge, Ciry Civil Court, Hyderabad against defendants I and 2 for partition and separate possession ofA & B schedule properties. The item No.5 of "B" schedule property was described in the plaint as "One Hot Mixing Plant at Mansoorabad ln Rangareddy District along with land value of Rs.7,00,000/-". A preliminary decree directing partition of A & B schedule properties was passed on

26.10.1998. Against which, the defendant No.1 preferred appeal vide C.C.C.A.No.39 of 1999 on the file of the I{igh Court. The petitioner filed I 2 Dr.GRR, J crp_7t5 2020 I.A.No.l956 of 1998 for final decree proceedings and irlr,o Ilred I.A.No.2791 of 2000 for assessing the value of item No.5 of "B" sche<lu [e property. However, the Court dismissed I.A.No.279l of 2000 vide ordt:r dated, 20.02.2001 by hotding that the land was not covered in item No.5 ol llre,,B', schedulc. The petitioner preferred c.R.P.No.l244 of 2001 against th: saicl order. The same was dismissed virle order dated 22.01.2003. Thereafter. lre filed an amendment application in C.C.C.A.No.39 of 1999 for amending Ll.e dcscription of itern No.5 in the "B" schedule property and. vide order in r.l M.lr.No.4580 ol 2003 dated 31 .03.2003, the High Courl allowed rhe rrrrrendment application permitting hirn to amend the description of item No.5 c t' .8,' schedule property by incorporat.ing rhe description and extent of the land. l)ursuant to the above, he filed the amended plaint in the subject suit on 10 04.2003 by correctly arnending the description ol item No.5 of "B" schedule )r.cpcrtv as land bearing revenue Surve1 No.66110/B, Mansoorabad Viltagc Saroornagar Mandal (formerty H1'delabad East Taluk), Rangareddy Distri.:r torally adrneasuring Ac. I - I I guntas along with Hot Mixing Plant embe drled thereon with its boundaries. l{owever, the defendants did not file their r\ -ittcn statement to the said amended plaint dated 10.04.2003. The legal r.cpresentatives of the deceased defendant No. I also did not file their written st?lrm.. nt to the amended plaint even after having come on record as legal represe rlittives of the deceased defendant No.l . tjltimatety, the I"-L -^.rft dismisseci r.l C.C.A.No.39 of 1999 I 3 Dr.GRR, J crp_715_2020 vide ludgmcnt and decree dated 30.09.2004 confirming the preliminary partition decree in O.S.No.122 of 1997 dated 26.10.1998. The Civil Appeal No.3855/2006 filed by defendant No. I and his legal representatives 3 to 9 before the Hon'ble Apex Court was also dismissed vide jtdgment and decree dated 09.12.2010. A review petition plelerred by the defendants was also dismissed by the Hon'bte Apex Court vide order dated 13.04.2011. As such, the prelinrinary judgment and decree dated 26.10.1998 attained finatity Thereafter, the plaintiff filed I.A.No.2889 of 2012 in final decree proceedings in the subject suit seeking amendment of Item No.5 ol "B" schedulc property in the preliminary judgment and decree in O.S.No.122 of 1997 dated 26.10. 1998 in accordance with the amended plaint dated 10.04.2003 and the Court allowed I.A.No.2889 of 2012vide order dated 28.08.2013. Aggrieved by the said order in I.A.No.2889 of 2012 dated 28.08.2013, the delendants preferred C.R.P.No.4293 of 2013 before the IIigh Court contending that the preliminary judgrnent and decree dated 26.10. 1998 could not be automatically amended incorporating the arnended description of item No.5 of "B" schedule property without the plaintiff adducing evidence to subsLantiate his claim over the said item of the propefty. The High Court was pleased to allow C.R.P.No.4293 of 2013 vide order dated 29.09.2015 holding that the plaintiff was not automatically entitled to incorporate the amended item No.5 of "B" schedule propefty in the preliminary judgment and decree dated 26.10.1998 without 4 Dr.GRR, J crp_7I5_2020 adducing evidence to prove his claim. The Speciat ..t:ave Petition (Civil) No.3062 ol 2016 pref'erred by the plaintiff was also disn i:;sed vrde order dated

23.02.2017. As srrch teft with no altemative, but to arkluce cvidence in the subject suit itself to prove and substantiate his legitimatc and bonafide clairn in rcspcct of itcrn No.i ol"B" schedute property, the petitiorrr ' filcd rn application seeking pcrnrission ol the Court to adduce evidence in respr:ct ol said itern No.5 of "B" schcdule property as per the amended plaint datr:c. 10.04.2003 filed in the subject suit.

3. The respondcnt No.4 on bchalf of respondcrrts 3 to 7, the lcgal representatives ol'defendant No.l filed counter affidav t contending that the orders retating to strbject property sought to be amended a,tair.red flnality twice in the eye of law. I:irst, when the plaintiff sought to inclr,xle the said propcrty by way of filing objecLions and seeking directions to the Ac ! ()cate Cornmissioncr for procce.dings in final decree and when the Court rcic:ted the request on

20.02.2001 as per thc orders in I.A.No.279l of 2000 in I. \ No. 1956 of 1998 in O.S.No. 122 <tf 1991 . 'Ihe matter was carried in revision rcfore the High Court in C.R.P.No. l2 44 of 2001 and the said revision was also ,lir;missed by the High Court. Notwithstanding the same, the petitioner plaintil l' i ndtrlged in filing an amendment petition to amend itern No.5 of "B" scheclt lt) property of plaint, which admittedly uas a movable property and did not incl rde any immovable propefty. The saiil amendment was allowed by the Hi1;h Courr at Appellate I , I I 5 Dr.GRR, J tp_715 2020 stage. However, it has to be noted that the amendment allowed by itself would not create any right in the property. Hence, the same was not opposed. Further, the petitioner - plaintiff did not amend the plaint as required by law. The proceedings relating to amendment had also not been carried out as per law within the time prescribed by law. Thereafter. the petitioner - plaintiff prefened I.A.No.2889 of 2012 in O.S.No. 122 of 1997 seeking amendment of item No.5 of "B" schedule property in the prelirninary judgment and decree. The same was allowed by the court on 28.08.2013. The matter was carried in revision vide C.R.P.No.4293 of 2013, which was allowed on 29.09.2015. The petitioner - plaintiff carried the matter to the Hon'bte Apex Court vide S.L.p. (C).No.3062 of 2016, which was dismissed on 23.02.2017. Thus, the matter attained f,rnality. The petitioner plaintiff could not be permitted to re-open the subject. As such, the petition was not maintainable and prayed to disrniss the petition.

4. Basing on such averments, the learned II Additional Chief Judge, City civil court, Hyderabad heard the leamed counsel representing both the parties and dismissed the petition.

5. Aggrieved by the said dismissal, the petitioner - plaintiff preferred this revlston. 6 Dr.GRR, J crp_715 2020

6. Heard I\4s.Anupriya, leamed counsel for the l)e':itioner - plaintiff, Sri C.V.L.N.Murthy, learned counsel for respondents 3 to 7 and Sri Rakesh Sanghi, leameci counsel for respondents 8 to 1 1.

7. The respondents 8 to I 1 sailed with the petitioner - pJaintiff.

8. The contentions of both the said leamed coun:rel representing the petitioner plaintill as well as the respondents 8 to I 1 r'as that the order of dismissal of l.A.No.279l ol 2000 dated 20.02.2001 pasre'd in the subject suit including the ,rrdel of dismissal in C.R.P.No.1244 of 1001 dated 22.01.2003 passed by the High Court were virtually infructuous and i'rconsequential in the Iight of the fact that the Division Bench of this l}rurt vide orders in C.M.P.No.4580 of 2003 in C.C.C.A.No.39 of 1999 dat.xl 31.03.2003 granted permission to ihe petitioner - plaintiff to amend the descliption of item No.5 of "B" schedule propefty and pursuant to the said orders c rted 31.03.2003, the petitioner plaintifl canied out the amendment of the dt:scription of item No.5 of the "B" schedule property vide amended plaint dated 1 0 04.2003. In the final decree proceedings, the petitioner plaintiff filed I.A.No...889 of 2012 seeking amendment o{'item No.5 of "B" schedule property. The (lourt allowed the said LA. Aggrievt:d with the orders in I.A.No.2889 of 20ll '1ated 28.08.2013, the respondents 3 toI - defendants 3 to 7 preferred C.R.Pl'J".4293 of 2013. This Court allowed the CRP vide..orflgr dated 29.09.201j; observing that mere 7 Dr.GRR, J crp_715_2020 amendment of the description of item No.5 of "8" schedule property in the plaint would not entitle the petitioner to seek amendment of item No.5 of "B" schedule propefty in the preliminary judgment and decree dated 28.08.2013. On the other hand, the Court observed that a fresh finding was required in respect of item No.5 of "B" schedule property. An entire reading ol the orders in C.R.P.No.4293 of 2013 dated29.09.2015 would not disclose that the Court observed that the right, title and entitlement of the petitioner - plaintiff would stand extinguished qua item No.5 of "B" schedule property. On the other hand, the Court emphatically obserued that a fresh finding was required to be given in respect of amended property covered under item No.5 of "B" schedule. Aggrieved with the aforesaid orders in C.R.P.No.4293 of 2013 dated

29.09.2015, the petitioner - plaintiff carried the matter in appeal to the Hon'ble Apex Court vide S.L.P. (C).No.3062 of 2016. The said appeal u,as also dismissed by the Hon'ble Apex Court vide order dated 23.02.2017 granting Iiberty to the petitioners to take out such remedies as would be available to them in accordance with law as far as the land in item No.5 of "B" schedule property of the plaint is concemed. A fresh finding in respect of item No.5 of "B" schedule property could be given only after trial was conducted by the trial courl in respect of the amended properly. The disputed issues pertaining to item No.5 of "B" schedule property should be adjudicated in the subject suit itself without driving the petitioner - plaintilf to file a fresh suit or separate 8 Dr.GRR, J crp_715 2020 proceedings in respect of item No.5 of "B" schedule l)loi)erty. There was no statutory provision either in the Code of Civil Procedure :rl in the Civil Rules of Practice prohibiting the petitioner plaintiff from adducirr: additional evidence. A perverse finding was recorded by the trial couft violatir g the observations of the Hon'ble r\pex Courl and prayed to set aside [he c,rder of disrnissal of LA.No.350 of2017 in O.S.No.l22 of 1997 dated 22 12019 passed by the leamed II Additional Chief Judge, City Civil Court, I{ydt Lr:bad.

9. Learned counsel for the respondents 3 to 7 on thc "thet hand contended that there was no illegality or perversity in the order olth:'rial court to set aside the same. l-he suir was filed lor partition showing the irnr.novable properties in Schedule movable properties in Schedule "B". Ihe amendment was sought for irnpleading an imrnovable property of Ac. l-l 1 guntas of land along with tt-re movablc property in item No.5 of "B" schedtrl,, propefly. -fhe property was Irot a joint family property. There were no oleadings in support of the said arnendment. Evidence could be adduced or iy when there were pleadings in respect of the said property. Without any 1l leadings or issues, no evidence could be adduced. Item No.5 of "B" schedule J,ropefty went through four rounds of litigation. The judgment of the trial :ourt merged with the judgments ol the higher Coufts. No document was lllerd by the petitioner - plaintiff to show that item No.5 of "B" schedule prop(a y was an immovable property. Order [I Rule 2 of CPC rvould mandate tLLal the plaintiff should 9 Dr.GRR, J xp_715 2020 include entire claim and could not split claims. Item No.5 of "B" schedule property was not shown as joint family property at the time of filing of the suit. It was now being shown as an immovable property 33 months after the decree. The confirmation of the preliminary decree by the High Court in C.C.C.A.No.39 of 1999 was without including the amended porrion. The petitioner - plaintiff and the respondents 8 to l l were drawing twisted inference to the finding of the High courr in c.R.p.No.4293 of 2013 dated 29.09.2015. The petitioner - ptaintiff could not adduce evidence in the already adjudicated suit and prayed to dismiss the revision.

10. Now the point for consideration in this revision is whether the trial court committed any iltegality in dismissing the petition filed by the petitioner - plaintiff to adduce additional evidence in o.S.No. 122 of 1997 and whether the same is liable to be set aside? I l. The facts of the case would disclose that there is a chequered history and the matter went up to the Hon'ble Apex court several times. The petitioner - plaintiff hled o.s.No.755 of t99t (old), t22 of 1997 (New) against rhe defendants I and' 2 for partition and separate possession of A & B schedule properties. The petitioner - plaintiff is the younger brother of defendants 1 and 2. "A" schedule property was a house and uB" schedule propefties were movable properties. Item No.5 of the "B" schedule property was shown as one 10 Dr.GRR, J crp_!t15J020 i Hot Mixing Plant at Mansoorabad in Rangareddy Distri<rt illong with land value of Rs.7,00,00()/-. A preliminary decree was passed by t.tre II Additional Chief Judge, City Civil Court, Hyderabad directing partition of A & B schedule properties on 26.10.1998. The defendant No.l pleli:red an appeal vide C.C.C.A.No.39 of 1999 against the preliminary iu<lgnent and decree in O.S.No. 122 of 1997. LA.No.l956 of 1998 was filed bi'tlre petitioner - plaintiff for final decree ptoceedings. An Advocate Commissicn',r was appointed vrde I.A.No. 1956 of 1998 for partition of the suit schedule properties by metes and bounds. The petitioner - plaintiff filed 1.A.No.2791 ol 2()00 raising objections to the Advocate Commissioner's report stating that whil: r:xecuting the warrant, the Commissioner failed to value item No.5 of "B" sche,ltrle property consisting of land in Surwev No.66l10/B admeasuring Ac.1-11 llrntas in Mansoorabad Village of Hayathnagar Mandal, Rangareddy District. lhe said petition was dismissed by the Court observing that the plaint "B" s,:hedule property was referred as one Hot Mixing Plant with its land value. ',vhich would literally mean that tht: Hot Mixing Plant with its occupied porti,rn, but not the entire extent of Ac. L-11 guntas. The Hot Mixing Plant would not occupy more than 3 or 4 square yards when it is embedded in the earth. The land covered by Survey No.66l10/B t{) an extent of Ac.1-11 guntas was not the s ultject matter of the suit at the time of trial, when the suit was adjudicated. The' copy of the plaint rn O.S.No.5ll of i988 on the file of the District M.rtsif, East and North, 11 Dr.GRR, J c rp_7 1 5_2 020 Rangareddy District would indicate that the ownership of the land was not trnsferred in favor of respondent No.l. The plaintiff or the defendant No.2 could not contend that the said land belonged to joint family. At that stage, ir could not be decided as to whether the said property belonged to the joint family or that it was purchased by defendant No.l with his own income. As such, the Commissioner rightly refused to value the landed property. It was also further observed that the plaintiff referred item No.5 treating it as movable property, as he wanted the value of Hot Mixing Plant when it is embedded into the earth. Hence, the plaintiff used the ph,rase Hot Mixing Plant with its land value. The land value at that place would be restricted to the actual portion of the land which physically accommodated the Hot Mixing Plant. As such, the petitioner - plaintiff was not entitled to the relief prayed for.

12. Aggrieved by the said order, the petitioner plaintiff preferred C.R.P.No.1244 of 2001. The said C.R.P. was dismissed on 22.01.2003 holding that the II Additional Chief Judge considered the material placed on record in right perspective and dismissed the application. In the meanwhile, the plaintiff, who was the respondent No.1 in C.C.C.A.No.39 of 1999 filed C.M.P.No.4580 of 2003 for amending the plaint in O.S.No.122 of 1997 under Section 151 ol CPC by incorporating the land bearing Survey No.66/10/B of Mansoorabad Village admeasuring Ac.l-11 guntas along with Hot Mixing Plant embedded thereon in item No.5 of the "B" schedule, pending the C.C.C.A. The Court 72 Dr.GRR, J crp_715 2020 l:. before issuing notice to the respondents in the said pe.it on itself allowed the application. However, the High Court dismissed C.C.(-.,\.No.39 of 1999 vide judgment and decree dated 30.09.2004 without any di:icrrssion with regard to the amended plaint incorporating Ac.1-11 guntas in Ir," schedule property. Against the said judgment and decree passed in C.C.t. f.Xo.:9 of I999, the legal representatives of deceased defendant No.1 filed Cli.,il Appeal No.3855 of 2006 before the Hon'ble Apex Court and the same was disrnissed by the Hon'ble Apex Court r.'lde .judgment and decree dated 09. 12.2010 The review petition preferred by the LRs of defendant No. I was also dismiss c,.t by the Hon'ble Apex Court as per the order dated 13.04.2011. As such, the prel minary judgment and decree dated 26.10.1998 attained finality.

13. The petitioner - plaintiff filed I.A.No.2889 of 20112 in the final decree proceedings seeking amendrnent of item No.5 of "B" :;r:hedule in accordance with the amended plaint dated 10.04.2003. The said petrtion was allowed by the Cowtvide order dated 28.08.2013.

14. Aggrieved by the said order, the LRs of de1'e-rdant No.l preferred C.R.P.No.4293 of 2013. This Court in the said order obselved that: "Only the plaint filed by respondent No.l - ptaintiff in O.S.No.122 of 1997 (to the extent of substituting itt:m No.5 of "B" schedule (movable property) with the immo'r,irble propefty indicated in para-6 above) came to be amended r..,ithout any pleading in the body of the plaint for partti:,n of the 13 Dr.GRR, J crp_715 2O20 immovable property substituted in the place of movable property in item No.5 of "B" schedule property as it originally stood. There was no evidence seeking partition of the immovable property included in item No.5 of "B" schedule by respondent No.l and no argument was addressed in regard thereto by the respondent No.1 - plaintiff. There was no discussion in the judgment dated 30.09.2004 in C.C.C.A.No .39 of 1999 as ro the entitlemcnt of the respondent No.1 to the partition of this item specifically. The result of this is that, notwithstanding the fact that C.M.P.No.4580 of 200i was allowed and the immovablc property mentioned in para-6 came to be substituted in the place of movable property mentioned in item No.5 of plaint "B" schedule, only the decree of the trial court was confirmed and there was no decree in the C.C.C.A in favor of respondents No.l in respect of the substituted immovable property in Item No.5 of "B" schedule at alt. Infact, there could not have been any decree in favor of rcspondents No.t in respect of this item in this C.C.C.A, since it was not an appeal preferre<I by him and it was an appeal preferred by petitioner No. 1."

15. This Court in the above revision only observed that without a fresh finding in regard to the substituted propergz, the respondent No.l - plaintiff was not entitled for inclusion of the said item in the preliminary decree. But not directed the trial court to record any fresh hnding with regard to the substituted property.

16. The SLP hled by the plaintiff vide S.L.P. (C).No.3062 of 2016 against rhe order in C.R.P.No.4293 of 2013 was also dismissed by the Hon'ble Apex Court L4 Dr.GRR, J crp_715 2020 observing that there were no valid legal grounds for int:rl-erence, but however noted that the petitioners were at liberty to take such lemedies as may be available to them, in accordance with law, in so far as the land in item No.5 of plaint "B" schedule is concemed.

17. Thereafter, the petitioner - plaintiff filed the ple:ent petition seeking permission to adduce oral and documentary evidence to l)rove his rights over the amended suit schedule "B" propefty. The trial court rtrserved that there was no preliminar-rr decree at all lor the substituted property. l-here was nothing on record to show that amendment was carried out by spe,: if ic pleadings in the original plaint and that an opportunity was given to the contesting respondents to show that ir. was not a joint family property but was a st:lf-acquired property. In the absencr: of any pleadings by both the parlies clarrring substantial rights over the property, it was not possible to adjudicate the ll,. It is the fundamental principle of law that both the parties were required to prove their respective claims before the Court on the basis of pleadings and cl id,.nce. As on that date, there were no pleadings by the petitioneL - plaintiff to sht,'r as to how and when the substituted property became part of the joint 1a' nily property. The respondent No.2 in his application made it clear th,tt the defendant No. 1 purchased the property and filed O.S.No.5 11 of 1998 orr the file of the District Munsif, East and North, Rangareddy District an,l the said suit was compromised The respondents 3 to 7 not admitted that th : substituted property Dr.GRR, J crp_715-2020 was the joint family property. Serious questions of substantial rights of parties 15 can be decided only on the basis of pleadings and not on the basis of affidavit filed in support of the petition filed under Section l5l of cpc. Substantial legitimate rights in the property cannot be adjudicated in the interlocutory application and that the same can be adjudicated only when the pleadings were available and trial was conducted by giving an opportunity to both sides for adducing evidence.

18. The trial court also further observed that there was no quarrel with the legal proposition that any nurnber ol preliminary decrees courd be passed in a suit for partition and shares could be adjusted tiil passing offinal decree. But in the case on hand, there was no preliminary decree passed for substituted property and now by filing the present petition, the petitioner was seeking relief to adjudicate his rights for the substituted property without any pleadings.

19. There is no dispute or quarrel with the proposition that any number of preliminary decrees could be passed panicularly in partition suits when after the I preliminary decree, some parties die and shares of other parties were augmented. But the dispute in the present case is not about the increase or decrease in shares due to the death or birth of the parties. The issue is when a property, which was not initially included in the plaint was subsequentty added by way of amendment, whether any evidence can be permitted to be adduced 76 Dr.GRR, J crp_715 2020 with regard to the said property when there were no p lt:adings to that effect. Pleadings are the foundation of the case and it is a wel t s,.ttled principle of lau, that no amount of evidence can be looked into on a plr a which was never put forward. Evidence without corresponding pleading shor- Ld be ignored, as per the judgments of the Hon'ble Apex Court in Bachan S,irrgh v. Kartar Singh and Othersr and Vijay Kumar v. TN State Trans;lor,. Corporation2. As such, this Court does not find any illegality or irrcgular.ity in the order of the trial court to set aside the same.

20. In the result. the civil Revision Petition is dismiss,.rl co.firming the order of the leamed II Additional Chief Judge, City Civil Cotrlr. Hyderabad passed in I.A.No.350 of 2017 in O.S.No.l22 of 1997,dated 22.1 l.:t( 19. No order as to costs As a sequel, miscellaneous applications pending ir this pctitior.r, if any, shall stand closed. To, //TRUE COPY// \ SiD/. MOHD. ISMAIL EI'UTY REGISTRAR Pt\ \ S;ECTION OFFICER '1. ll Additionai Chief Judge, Civil Civil Courts at Hyderabad 2. One CC to SRt ANUpRtyA, Advocate [OpUCj 3. One CC to SRt SRI tr4/s. C.V.N.MURTHy, Advocate [CI,UC] 4. One CC to SRI RAKESH SANGHI, Advocate tOpUCl 5. Two CD Copies 6. One Spare ()opy PB/sh { It I I I I I l I l, t x I HIGH COURT DATED: 0910612025 ORDER CRP.No. 715 ot 2020 26 ::ii Z0g Il, .. ,4.. , DISMISSING OF THE CRP WITHOUT COSTS aL_ I r' 6 q_ 1--\