C.V.Nagarjuna Reddy, J.
Order:
1. This Civil Revision Petition arises out of Order, dated 18-07-2011, in I.A.No.251 of 2011 in O.S.No.110 of 2008, on the file of the learned Junior Civil Judge, Huzurnagar.
2. I have heard Sri K.Narasimhachary, learned Counsel for the defendant No.7, and Sri R.Sridhar, learned Counsel for respondent No.1- plaintiff, who is the only contesting respondent.
3. For the sake of convenience, the parties shall be hereinafter referred to as they are arrayed in the suit.
4. Plaintiff filed the aforementioned suit for partition of suit schedule property into six equal shares and allotment of 1/6th share to him and for costs. Defendant No.7 is the purchaser of the subject property from defendant Nos.2, 3, 4 and 5, who are no other than the brothers and sister of the plaintiff. Defendant No.7 filed a written statement wherein several defences have been taken. According to him, one Thandu Somaiah, resident of Huzur Nagar, who is the father of the plaintiff, purchased one acre of land in Survey No.184 of Huzur Nagar from Pilli Gurvaiah and others under a registered sale deed, dated 20-04-1981, for valuable consideration; that the said Thandu Somaiah also purchased other extents of Ac.0-28 guntas and Ac.0-13.1/5th guntas in Survey Nos.184 and 184/E respectively from Pilli Gurvaiah, for valuable consideration under registered sale deed, dated 20-04-1981 and; that the said property purchased by him is the self acquired property of Thandu Somaiah, who did not possess any ancestral property. It is the further case of defendant No.7 that the plaintiff and defendant Nos.1 to 5 did not inherit any ancestral property; that the said Thandu Somaiah executed a Sada agreement in the name of his wife Thandu Laxmamma for the entire extent of Ac.2-01.1/5 guntas based on which her name was entered as pattadar of the said land; that from the date of mutation of her name in the revenue record as pattadar, the said property became her stridhan property; that subsequently, Thandu Laxmamma has sold Ac.0-20 guntas of land in favour of one Yalaka Janaiah by registered sale deed; that Thandu Laxmamma decided to give shares to her sons in all the properties possessed by her including the plaint schedule property and; that, accordingly, on 25-07-2002, Thandu Laxmamma and her five sons including the plaintiff have entered into a family settlement, which was reduced into writing on the same day. It is the further case of defendant No.7 that, as per the family settlement, the plaintiff and his brother Thandu Ramesh i.e., defendant No.1 were given equal shares in a residential house at Huzurnagar, which is shown as 'A' schedule property in the family settlement deed; that defendant Nos.2 and 3 were allotted half share each in the said house, which was described as 'B' schedule property, that Thandu Laxmamma and defendant Nos.1 to 4 were allotted 68 square yards of site in the above-mentioned property, which is shown as 'C' schedule property and; that, besides A, B and C schedule properties, one more property, which is mentioned at page No.5 of the settlement deed, was given to defendant No.5, who is none other than younger sister of the plaintiff. Defendant No.7 further averred that as Thandu Laxmamma became absolute owner of the suit schedule property in the year 2002, she has executed will, dated 01-05-2003, which was registered on 01-05-2003. Defendant No.7 claims to have purchased the said property from the legatees under the will executed by Thandu Laxmamma. Defendant No.7 has filed I.A.No.251 of 2011 with a request to the Court to frame the following additional issues:
"1. Whether the suit is barred by limitation.
2. Whether the plaintiff is the joint family member.
3. Whether suit schedule property is ancestral or joint family property of the plaintiff and the defendants.
4. Whether the court fee paid by the plaintiff is proper.
5. Whether the plaintiff without seeking the cancellation of the documents is maintainable or not.
6. Whether the suit is maintainable without seeking preliminary decree for partition.
7. Whether the suit is maintainable without seeking any relief against 6th defendant and 7th defendant." Counter-affidavit is filed by the plaintiff opposing the said IA.
5. The Court below has dismissed the said IA mainly on the ground that the written statement did not raise any objections relating to limitation; that no plea was raised to the effect that the suit land is not a joint family property and; that the Court fee paid is not proper. When a suit is filed, the Court should make every endeavour to decide all the questions arising therein in a comprehensive manner so that the parties to the litigation will not have the necessity of being driven to further litigation. According to defendant No.7, no decree can be passed in the suit filed by the plaintiff, unless the sale deed executed by the legatees, under the will, in favour of defendant No.7 is held invalid. It is the case of defendant No.7 that, as the sale deed was executed on 30-04-2003, the suit ought to have been filed within three years therefrom and that, as the suit was not filed within the said period, the suit is barred by limitation. It is also the case of defendant No.7 that, for invalidation of the sale deed, separate Court fee has to be paid under Section 37 of the A.P.Suits Valuation Act and that respondent No.1 has not paid proper Court fee. As regards the observation of the Court below that, no plea regarding limitation has been raised, Section 3 of the Limitation Act, 1963, envisages that subject to the provisions of Sections 4 to 24, every suit instituted, appeal preferred and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence. Therefore, it is incumbent upon the lower Court to examine whether the suit filed by respondent No.1 is within the period of limitation even in the absence of a formal plea raised by the defendants. The Court below, therefore, committed a serious error in refusing to frame an additional issue regarding limitation on the ground that such a plea is absent in the written statement.
6. From a perusal of the written statement, I find that defendant No.7, in paragraph 4, has specifically raised the plea that the property in question was self-acquired property of Thandu Somaiah and not of joint family property. But, surprisingly, the Court below has observed that no plea to this effect is taken in the written statement. This finding, thus, suffers from a patent error. With respect to non-payment of Court fee, the same position with respect to limitation Act also will apply. Irrespective of whether any objection is raised by the party or not, it is the duty of the Court to examine whether proper Court fee is paid or not. From the additional issues, which are proposed by defendant No.7, I find each one of these issues as relevant for proper and effectual adjudication of the suit filed by the plaintiff for partition. As such, refusal of the Court below to frame additional issues suffers from patent illegality. For the above-mentioned reasons, the Civil Revision Petition is allowed and Order, dated 18-07-2011, in I.A.No.251 of 2011 in O.S.No.110 of 2008, on the file of the learned Junior Civil Judge, Huzurnagar, is set aside. Consequently, I.A.No.251 of 2011 stands allowed. The Court below shall frame additional issues as contained in the IA. Both the parties shall be given an opportunity of adducing further evidence before disposing of the suit.