P. Leelavathy Vs. P. Sharada Devi @ P. Sumitra and ors. - Court Judgment

Excerpt:
- a.p. record of rights in land and pattadar pass books act, 1971. section 5(3) & a.p. record of rights in land and pattadar passbooks rules, 1989, rules 5 & 19: : [g.s. singhvi, c.j., & g.v. seethapathy, c.v. nagarjuna reddy, jj] amendment of record of rights procedure held, proviso to section 5(1) and (3) represent statutory embodiment of the most important facet of rules of natural justice i.e., audi alterem partem. these provisions contemplate issue of notice to persons likely to be affected by action/decision of mandal revenue officer to carry out or not to carry out amendment in record of rights. similarly, a notice is required to be issued to any other person whom recording authority has reason to believe to be interested in or affected by amendment. a copy of amendment and notice is also required to be published in prescribed manner. the publication of notice in prescribed manner is in addition to notice, which is required to be given in writing to all persons whose names are entered in record of rights and who are interested in or affected by amendment and also to any other person whom recording authority has reason to believe to be interested in or affected by amendment. the publication of a copy of amendment and notice is only supplemental and not the alternative mode of giving notice to persons whose names are entered in the record of rights. if legislature thought that publication of a general notice in form viii will be sufficient compliance of rules of natural justice, then there was no occasion to incorporate a specific requirement of issuing written notice to persons whose names are entered in the record of rights and who are interested in or affected by the amendment. the requirement of issuing written notice to such persons clearly negates the argument that publication of notice in form vii is sufficient. thus the language of form viii in which notice is required to be published cannot control the interpretation of substantive provision contained in section 5((3), which casts a duty on recording authority to issue notice in writing to all persons whose names are entered in the record of rights and who are interested in or aggrieved by the proposed amendment. - ram reddy, learned counsel for the respondents, on the other hand, submits that the appellant miserably failed to prove the tide and the only alternative for the trial court was to dismiss the suit.l. narasimha reddy, j.1. the appellant filed o.s. no. 2034 of 2005 in the court of ii senior civil judge, city civil court, hyderabad, against the respondents, for the relief of declaration of tide, in respect of the suit schedule property. it was pleaded that the suit schedule property, being a house comprising of ground and first floors constructed over 96 square yards of land, was acquired by the husband of the appellant and that the respondents are claiming tide and possession over it.2. the 1st respondent is the daughter-in-law of the appellant and respondents 2 and 3 are her children. the suit was opposed by them, by taking the plea that the property was acquired by the son of the appellant and that the 1st respondent has gifted the same to respondents 2 and 3. through its judgment, dated 02-07-2009, the trial court dismissed the suit. hence, this appeal.3. sri g.v. raghava reddy, learned counsel for the appellant, submits that though the trial court did not agree with the contention of the appellant, as regards the relief of declaration of title, a specific view was expressed to the effect that the appellant, on the one hand, and respondents 1 to 3, on the other hand, are entitled for equal shares, and in that view of the matter, a preliminary decree for partition ought to have been passed. he relies upon order vii rule 7 c.p.c., and places reliance upon the judgment of this court in kusam satyanarayana reddy v. kusam sambrajyamma (died) by lrs. : 2004 (3) alt 115 : 2004 (2) ald 635 (d.b).4. sri k. ram reddy, learned counsel for the respondents, on the other hand, submits that the appellant miserably failed to prove the tide and the only alternative for the trial court was to dismiss the suit. he contends that the occasion to pass preliminary decree would have arisen, if only there did not exist any dispute as to the shares, and that his clients have totally denied the entidement of the appellant.5. the trial court framed the following issues for its consideration:(i) whether the plaintiff is entitled for declaration as prayed for?(ii) whether the plaintiff is entitled for permanent injunction?6. the appellant deposed as p.w.1 and filed exs.a-1 to a-9. no evidence was adduced on behalf of the respondents. the suit was dismissed, on finding that the appellant cannot claim exclusive right over the property, assuming that it was acquired by her husband. before this court, the appellant has not chosen to pursue the relief of declaration of title. the emphasis is only upon the preliminary decree that could have been passed.7. it is true that a civil court is conferred with the jurisdiction under order vii rule 7 c.p.c. to grant alternative relief, even if the one claimed in a plaint is rejected. following the judgment of the supreme court in firm srinivas ram kumar v. mahabir prasad : air (38) 1951 sc 177, this court in kusam satyanarayana reddy's case held that the civil court can always consider the feasibility of granting alternative relief. however, there are certain limitations, in this regard. the supreme court, in the case referred to above, held,the question, however, arises whether, in the absence of any such alternative case in the plaint it is open to the court to give him relief on that basis. the rule undoubtedly is that the court cannot grant relief to the plaintiff on a case for which there was no foundation in the pleadings and which the other side was not called upon or had an opportunity to meet. but when the alternative case, which the plaintiff could have made was not only admitted by the defendant in his written statement but was expressly put forward as an answer to the claim which the plaintiff made in the suit, there would be nothing improper in giving the plaintiff a decree upon the case which the defendant himself makes.8. in other words, alternative relief can be granted, only when the defendant in the suit does not dispute the facts that are relevant for such a relief, and that the issue has been put at trial. in the instant case, the record does not disclose that the respondents have agreed to the partition of the suit schedule property. that occasion for the trial court, to consider that did not arise. therefore, the only alternative for the appellant is to file a suit for partition.9. hence, the appeal is dismissed, leaving it open to the appellant to file a suit for partition, duly impleading the concerned parties. the suit, if filed, shall be decided on its own merits, uninfluenced by any observations made in this judgment.10. there shall be no order as to costs.