Alapati Giridhar, J.

1. The Appeal is filed by Defendant No.2 challenging the decree and judgment passed by the learned XV Additional District Judge, Krishna District at Nuzvid, dated 05.01.2023 in O.S. No. 59 of 2015, assailing the ex parte decree and judgment for declaring the Plaintiffs as the absolute owners of the plaint schedule property and for granting permanent injunction against the Defendants over the plaint schedule property.

I. CONTENTIONS:

2. The learned counsel for the Appellant/Defendant No. 2 submits that the Trial Court decreed the suit without properly considering Ex.A.2/Partition Deed, which, according to the Appellant, clearly discloses the nature and operation of the suit property. It is further contended that the Plaintiff suppressed the fact of the earlier partition relating to the suit property and sought the reliefs before the Trial Court. Also submitted that the decree and judgment were passed ex-parte and the Defendant No. 2 was deprived of a fair opportunity to contest the suit. The Appellant prays to set aside the ex-parte decree and judgment and that an opportunity be granted to Defendant No. 2 to contest the suit, and invite the adjudication on its merits on terms.

3. The learned counsel for the Appellant submits that an application under Order 41 Rule 27 of the Code of Civil Procedure has been filed seeking permission to adduce additional evidence in the appeal to demonstrate his case, enclosing the following registered documents:

                  1. Ex. P1, Regd. Document No.376/1982, dated 12.02.1982

                  2. Ex.P2, Regd. Document No.1592/1982, dated 05.07.1982

                  3. Ex.P3, Regd. Document No.1843/1990, dated 03.12.1990

                  4. Ex.P4, Regd. Document No.2041/1993, dated 27.09.1993

                  5. Ex.P5, Regd. Document No.2072/1993, dated 07.10.1993

                  6. Ex.P6, Regd. Document No.3705/2005, dated 25.08.2005

                  7. Ex.P7, Partition Deed vide Regd. Document No.570/2015, dated 30.01.2015

4. The learned Counsel for the Appellant contended that the aforesaid documents are necessary for the adjudication of the appeal and they have a direct bearing on the issues involved in the suit. In support of the maintainability of the appeal against the ex parte decree and additional evidence, the learned counsel placed reliance on the decision of the Hon'ble Supreme Court of India in Prakash Chandar Manchanda v. Janki Manchanda ((1986) 4 SCC 699) and in Satish Chand Surana vs Raj Kumar Meshram (2021 INSC 829), also relied on judgment of this Court in S.Subrahmanya Naidu v. V.Ramachandra Naidu (A.S.No.783 of 2019).

5. The learned counsel for the Respondents/Plaintiffs initially raised an objection regarding the maintainability of the appeal and relied on Kambhampati Srinivasa Rao and 4 others vs. Khubchand Roopani and 6 others(A.S.No.1843 of 2018, dated 11.12.2018.) in A.S.No.1843 of 2018. However, he fairly conceded that, since the impugned judgment and decree were ex-parte, the appeal is maintainable in law. He further submitted that, in the event the appeal is allowed on terms and the matter is remanded, the Trial Court may be directed to dispose of the suit expeditiously since the appeal has been pending before this Court for the past three years.

II. ANALYSIS

Brief Plaint averments

6. This Court perused the material on record. The Plaintiffs instituted the suit seeking a declaration of title in respect of the plaint schedule property admeasuring Ac.0.59 cents and a permanent injunction restraining the defendants from interfering with their peaceful possession and enjoyment of the suit schedule property.

7. The Plaintiffs pleaded that the 1st plaintiff is widow of late Mastan Saheb and that the 2nd and 3rd plaintiffs are her son and daughter, respectively. The defendants are younger brothers of late Mastan Saheb. In fact, the father-in-law/Gali Saheb of the 1st plaintiff was the absolute owner of the property, who had purchased the same by way of two registered sale deeds in the year 1982 and he was in peaceful possession and enjoyment of the schedule property.

8. The said Sheik Gali Saheb and his three sons/Mastan Saheb, Anwar Basha and Jaina Valihad executed a registered Partition Deed dated 03.03.1990, whereby the properties were divided into 'A', 'B', 'C' and ‘D’ Schedules respectively.

9. The eldest son, Mastan Saheb, was a responsible member of the family and attended to the marriages and welfare of his brothers and sisters. After the said partition, he remained in peaceful possession and enjoyment of the schedule property. Out of his share, he gifted an extent of Ac.16.00 cents out of 0.75 cents for the marriages of his brothers and for discharging other family obligations, including the welfare and maintenance of his parents. After considerable effort, he constructed a house in the remaining extent of Ac.0.59 cents and resided therein and the said Mastan Saheb died on 19.12.2014 intestate, leaving behind the plaintiffs as his legal heirs. Subsequently, the plaintiffs executed a registered Partition Deed dated 31.05.2005, dividing their properties into 'A', 'B', and 'C' Schedules, under which Defendant No.1 was allotted his respective share adjacent to the schedule property.

10. After the death of Mastan Saheb, the defendants, with an intention to unlawfully grab the plaint schedule property, began interfering with the plaintiffs' peaceful possession and enjoyment. They made attempts to trespass into the schedule property and falsely claimed rights over the same, despite having no manner of right, title, or interest therein. As the defendants continued their illegal interference and attempted to dispossess the plaintiffs, the plaintiffs were constrained to institute the suit.

Brief Written Statement Averments

11. The Defendants filed written statement denying the material averments including the registered partition dated 03-03-1990, performing marriages of brothers and sisters, discharging family debts, constructing a shed in 0.59 cents and enjoying the schedule property, proclaiming over the property and trying to encroach the property.

12. The Defendants specifically pleaded that the properties were partitioned by registered partition dated 26.03.1990 but not under the alleged registered partition dated 03.03.1990. The extent referred to in the plaint is not correct. The Plaintiffs suppressed the alienations by Mastan Saheb and contended that 0.59 cents was partitioned by them, further the said partition deed is not disclosing the length and width of the site or measurements of the site. The 1st Defendant is having 0.25 cents consisting of a house and he has been residing there for 25 years. The 2nd Defendant had a site in the schedule property. The Defendants finally sought to dismiss the suit with costs.

                  Issues framed by the Trial Court:

                  i) Whether the plaintiffs are entitled for declaration of title to declare that they are absolute owners of plaint schedule property?

                  ii) Whether the plaintiffs are entitled for consequential relief of permanent injunction as prayed for?

                  iii) Whether the plaintiffs are trying to encroach into the site of defendants under the guise of claiming title?

                  iv) To what relief?

13. The judgment of the Trial Court reveals that Defendants entered appearance through counsel before the Trial Court. During the course of Trial, the 1st and 2nd Plaintiffs were examined as P.Ws.1 and 2 and also examined PW.3 and exhibited A1 to A13 in support of their case. The record reveals that the 1st Defendant was set ex parte on 09.08.2018 and the 2nd Defendant did not adduce evidence. Finally, the Trial Court decreed the suit in favour of the plaintiffs as prayed for.

14. The appellant, however, contends that there had already been a prior partition among the parties and that deliberately suppressed the alienations and that the Plaintiffs instituted the suit, and that the plaintiffs obtained an ex-parte decree by concealing the material facts. The Appellant further relies upon the registered documents referred to hereinabove in support of the said contention.

15. The Respondents/Plaintiffs filed a counter-affidavit denying the claims made by the Appellant, including the validity and effect of the alleged partition deed.

16. The truth or otherwise of these rival claims can be determined in the trial on the basis of the oral and documentary evidence to be adduced by the parties.

17. The appellant relied on Prakash Chander Manchanda case supra, wherein the Hon’ble Supreme Court of India, while observing that the Defendant’s evidence is closed, set aside the ex parte decree and held that application under Order IX Rule 13 is maintainable. This judgment also supports the case of the Appellant that when the evidence is not adduced, the same can be treated as an ex parte decree.

18. The appellant relied on Satish Chand Surana case supra, wherein the Hon’ble Supreme Court of India, while dealing with refusal of opportunity to take additional evidence under Order XLI Rule 27 of CPC and dismissal of the Appeal without deciding the application for additional evidence would result in miscarriage of justice. But the Appellant cannot avail the law as the Appeal is pending before this Court and this Court also did not proceed to hear the Appeal refusing to give opportunity in the Application filed Order XLI Rule 27 of CPC.

19. The Appellant relied on S.Subrahmanya Naidu (Supra), where in a Co-ordinate Bench of this Court, observed that the Defendant did not adduce evidence, the decree passed was an ex parte decree, and set aside the ex parte decree and judgment on terms. This judgment is applicable to the present facts of the case as rightly contended by the Appellant.

20. The Respondents relied in judgment Kambhampati Srinivasa Rao and 4 others vs. Khubchand Roopani and 6 others (A.S.No.1843 of 2018, dated 11.12.2018.) in A.S.No.1843 of 2018 by the Hon’ble Division Bench of this Court, refused to remand the matter under Order XLI Rule 23 of CPC but held the Appellants are entitled to file an appropriate application before the Trial Court under Order IX in terms of Order XVII Rule 2 of CPC. This judgment is not applicable to the present facts of the case as the parties in that case did not agitate the powers of the Court under 96(2) of CPC.

21. As rightly contended by the learned Counsel for the Defendant/Appellant that an Appeal lies from a decree passed ex parte in terms of Sec.96(2) of the Code of Civil Procedure, 1908, which is also finally conceded by the learned Counsel for the Plaintiffs.

22. On a query by the Court for remaining ex parte and filing the Appeal, the learned counsel for the Appellant finally offered to pay Rs. 50,000/- as costs for all the delay and circumstances.

23. The Court satisfied with the material including the Plaintiff and his witness are not cross examined in both the suits and ex parte decrees, the Defendant be given a final opportunity to contest the suit and invite the judgment on merits subject to imposing suit costs, costs and a time frame for the aforesaid reasons.

24. The Appeal Suit is allowed with costs payable to the Plaintiffs and also on costs of Rs.50,000/-, subject to payment to the Plaintiffs within three weeks from today, failing which the Appeal stands dismissed without reference to further orders, duly setting aside the ex parte Decree and Judgment dated 05.01.2023 in O.S. No. 59 of 2015 and the matter is hereby remanded to the Trial Court for fresh disposal. On payment of the costs as stated supra, the Parties are directed to attend before the Trial Court on 15-09-2026 and Trial Court shall proceed with the evidence of the Parties and dispose of the suit afresh expeditiously, preferably within 4 months from the date of 15.09.2026, both the parties are directed to assist the Trial Court for disposal of the suit in the time frame, in the event of any party did not assist the Trial Court or protracts the suit, the Trial Court may proceed with the next step or impose costs, depending on the stage and circumstances of the case.

As a sequel, miscellaneous applications pending, if any, shall stand closed.