Telangana HC restores two land suits between brothers for fresh trial: sale-agreement plaintiff's non-appearance excused as sufficient cause

Court: High Court for the State of Telangana
Date of judgment: 9 October 2026
Case: AS/157/2022
Parties: Kattar Jithender Rao Vs Kattar Upender Rao
Bench: G.M. MOHIUDDIN
Outcome: Allowed

Summary

The Telangana High Court has set aside a common judgment of a trial court that dismissed four connected suits over agricultural land at Ramavaram Village, Mahabubabad District, and has restored O.S.No.123 of 2012 and O.S.No.85 of 2013 for fresh disposal. Justice G.M. Mohiuddin held that the plaintiff in O.S.No.85 of 2013, an ailing man of about 79 to 80 years living in the United States, had shown sufficient cause for not appearing, and that the findings in O.S.No.123 of 2012, including those on revenue entries and possession, had been recorded without the evidence he now seeks to lead on the same transaction.

The two sides are brothers. Kattar Jithender Rao and his wife sued in O.S.No.123 of 2012 for a declaration of ownership and possession of the A and B Schedule properties and a perpetual injunction, relying on an oral family partition of 1968-69 and a registered gift deed of 19.07.2012 from husband to wife. Kattar Upender Rao set up an unregistered sale deed dated 25.05.1996 for Rs.3,10,000, of which Rs.2,20,000 was allegedly paid, with possession delivered, and relied on revenue entries for 2000-01 to 2007-08. He himself sued for specific performance in O.S.No.85 of 2013, originally O.S.No.71 of 2009.

By a common judgment dated 28.10.2021 the VI Additional District Judge, Mahabubabad, dismissed O.S.No.123 of 2012 and O.S.Nos.84, 85 and 86 of 2013. Jithender Rao appealed as A.S.No.157 of 2022 and Upender Rao as A.S.No.281 of 2022. The appeals were heard together and the judgment was reserved on 23.07.2026.

The question before the court

Whether dismissal of O.S.No.85 of 2013 for the plaintiff's non-appearance and failure to lead evidence could stand when he showed sufficient cause
Whether findings in O.S.No.123 of 2012 on title, coparcenary, the gift deed, lis pendens and possession could stand without the evidence in O.S.No.85 of 2013
Whether the connected suits should be remanded and on what terms

What each side argued

Plaintiffs in O.S.No.123 of 2012: the defendant admitted in his written statement that the properties belonged to plaintiff No.1, and the trial court introduced a coparcenary theory on its own, though no such plea was taken, the son was not a party and no issue was framed.
Plaintiffs: the registered gift deed, Ex.A1 and the revenue records were not properly appreciated, and dismissal of O.S.No.85 and 86 of 2013 for want of evidence could not defeat their claim.
Upender Rao in A.S.No.281 of 2022: he lived in the United States, was about 79 to 80 years old with serious ailments including leukemia, prostate cancer and a heart condition, was advised not to travel during COVID, and learnt of the dismissal only on 12.02.2022.
Respondents in A.S.No.157 of 2022: the properties were joint family property in which the son had a coparcenary interest, the gift deed was hit by Section 52 of the Transfer of Property Act, and the revenue records showed defendant No.1 in possession.
Respondents in A.S.No.281 of 2022: the suit was rightly dismissed as he did not enter the witness box, the 1996 document was unregistered, insufficiently stamped and barred by limitation, and any remand should be confined to O.S.No.85 of 2013.

The court's decision

The Court noted that the trial court dismissed O.S.No.85 of 2013 and O.S.No.86 of 2013 on the ground that the plaintiff failed to appear and adduce evidence, leaving the plaint averments unsupported. It observed that procedural default should not ordinarily defeat substantive rights unless the default is deliberate or the party is guilty of contumacious conduct. The plaintiff was about 79 to 80 years old, lived in the United States and had serious ailments. He had engaged counsel, who reported no instructions, and he said he learnt of the dismissal only on 12.02.2022. The Court held these circumstances were sufficient cause for non-appearance. As the suit concerned valuable agricultural land, the interests of justice warranted one effective opportunity to lead evidence, with the respondents free to cross-examine and lead rebuttal evidence.

The Court then held that O.S.No.123 of 2012 and O.S.No.85 of 2013 relate to the same properties and the same transaction, the unregistered sale deed or agreement of 25.05.1996, on which the defence in the first suit rests. While deciding O.S.No.123 of 2012 the trial court had relied on revenue records showing defendant No.1 as possessor of certain extents, yet in O.S.No.85 of 2013 the plaintiff was never allowed to prove the agreement, payment of Rs.2,20,000, delivery of possession, readiness and willingness, and the revenue entries he relies on. The findings on title, coparcenary rights, the gift deed and lis pendens were recorded without that evidence.

Without expressing any final opinion on the validity of the 1996 document, readiness and willingness, limitation, the gift deed, lis pendens under Sections 52 and 53-A of the Transfer of Property Act, or title and possession, the Court left all these questions open for the trial court.

The common judgment and decree dated 28.10.2021 was set aside. O.S.No.123 of 2012 and O.S.No.85 of 2013 were restored to the VI Additional District Judge, Mahabubabad, for fresh disposal uninfluenced by the earlier findings. The trial court must give the plaintiff in O.S.No.85 of 2013 a reasonable opportunity to lead evidence, subject to costs of Rs.50,000 to the defendant in that suit, and allow cross-examination, rebuttal evidence and marking of documents in accordance with law. The trial court may, if necessary and convenient, restore O.S.No.84 and 86 of 2013 to its file and decide all connected suits together to avoid conflicting findings.

I.A.No.1 of 2026, to receive a medical record dated 07.02.2026, was allowed and the trial court must consider it. The status quo ordered on 28.11.2022, as existing today, continues until fresh disposal. Given the plaintiff's age, the trial court was requested to proceed expeditiously. There was no order as to costs in the appeals.

Provisions referred to

Transfer of Property Act, 1882, Section 52
Transfer of Property Act, 1882, Section 53-A

Read the full judgment (PDF) ↗

Official source: High Court for the State of Telangana. The PDF above is a copy from an open dataset of the court's public records.

This summary is prepared for general assistance only. It may contain errors and is not legal advice — rely on the full judgment.

Property Civil Procedure Specific Performance Remand

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