IN THE COURT OF THE XVII ADDITIONAL SENIOR CIVIL JUDGE:
CITY CIVIL COURT: HYDERABAD.
PRESENT: SMT.A.KANCHANA REDDY,
XVII ADDL.SENIOR CIVIL JUDGE,
CITY CIVIL COURT, HYDERABAD.
DATED, THIS THE 02 nd DAY OF APRIL, 2025
O.S.No.1450 OF 2018
Between:
Bandaru Krishna, S/o.Late Bandaru Rajaiah, Aged 57 years, Occ: Business, R/o H.No. 16-1-194,
Pusala Basthi, Saidabad, Hyderabad. ...Plaintiff
AND
1. Bandaru Kashinath, S/o. Late Bandaru Rajaiah, Aged 46 years, Occ: Business, R/o. H.No. 16-1-282/1, Pusala Basthi, Saidabad, Hyderabad.
2. Bandaru Jagadish, S/o. Late Bandaru Rajaiah, Aged 45 years, Occ: Service, R/o H.No. 16-1-282, Pusala Basthi, Saidabad, Hyderabad.
3. M. Narsing Rao, S/o. M. Satyanarayana, Aged 48 years, Occ: Service, R/o 27D, LCH, Saidabad, Hyderabad.
4. Smt. M. Lavanya, W/o. M. Narsing Rao, Aged 42 years, Occ: Housewife R/o 27D, LCH, Saidabad, Hyderabad.
5. M. Kiran Kumar, S/o. M. Satyanarayana, Aged 40 years, Occ: Business, R/o H.No. 16-1-24/350, LCH, Saidabad, Hyderabad.
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6. Gajula Rani, W/o. Gajula Suresh, aged about 61 years, Occ: Housewife, R/o H.No.9-1-31, Champapet, Near Gandhi Statute, Saroornagar, Rangareddy District.
(Defendant No.6 added as per the Hon'ble High Court Order
dated 05.06.2024 in CRP.No.2131/2023 vide SR.No.2367/1/2024
dated 27.06.2024) ...Defendants
This suit is coming on 07.03.2025 before me for final hearing in the presence of
Sri B. Mohan, Advocate for the plaintiff; Sri V. Vijaya Bhasker Reddy, Advocate for the defendants No.3 and 4; Sri Y. Srinivasa Chary, Advocate for the defendant No.5; Sri
N. Anil Kumar, Advocate for the defendant No.6 and defendants No.1 and 2 remained ex pare and the matter having stood for consideration till this day, this court delivered the following:
: J U D G M E N T :
This is a suit for partition, separate possession, injunction and to declare the partition deed dated 04.03.1998 vide document No.359/1998, registered agreement sale cum GPA (with possession) dated 26.06.2009 vide document No.2803/2009; sale deed
dated 27.10.2010 vide document No.4605/2010; sale deed dated 11.10.2013 vide
document No.4657/2013 as null and void and not binding on the plaintiff in respect of the suit schedule A and B properties. The suit schedule 'A' property is all that a portion of house bearing municipal No.16-1-281 and 282, admeasuring 45.5 Sq. yards, or 38 Sq.
Mts., situated at Saidabad, Hyderabad, bounded as follows:
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North : Road
South: Neighbours house
East: Road
West: Schedule B property
The suit schedule 'B' property is all that portion of House No.16-1-281 and 282 admeasuring 45.5 Sq. yards, or 38 Sq. Mts., situated at Saidabad, Hyderabad and bounded by:
North : Road
South:Neighbours house
East: Schedule A property
West: Neighbours House
2.The averments of the plaint in brief are that the Suit Schedule A and B properties were purchased by Sri Bandaru Rajaiah with his own funds, hence the said properties are self acquired properties of Sri Bandaru Rajaiah. Sri Bandaru Rajaiah and his wife Smt.
B. Rukum Bai got three sons namely Bandaru Kashinath, Bandaru Jagadish and Bandaru
Krishna (Plaintiff). Bandaru Rajaiah died on 06.08.1987 leaving behind his wife
Bandaru Rukum Bai, and his three sons i.e., plaintiff and the Defendants No.1 & 2 as his heirs. As the suit schedule A and B properties are self acquired property of Bandaru
Rajaiah, after his death, as per Section 8 of Hindu Succession Act, the properties
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devolved in favour of his wife and three sons and daughters. Thus, the plaintiff as a joint owner enjoying the suit schedule properties. The plaintiff's mother Bandaru Rukum Bai died on 28.01.2018. After her death, the plaintiff, Defendants No.1 and 2 became the joint owners of the suit schedule property. After the demise of the plaintiff's mother, the plaintiff started demanding the Defendants No. 1 and 2 to divide the suit schedule property into three equal shares and allot one such share to the plaintiff. During the month of May, 2018, the family elders conveyed a meeting and decided to divide the suit schedule property among the plaintiff and Defendants No. 1 and 2. The Defendants
No. 1 and 2 falsely claiming the entire property and they were not ready to divide the suit property and refused to partition the suit schedule property. Finally on 02.10.2018, the plaintiff demanded the Defendants No.1 and 2 to partition the suit schedule property and allot 1/3rd share to the plaintiff, but the defendants No.1 and 2 blatantly refused to partition the suit property. Immediately, the plaintiff applied encumbrance certificate on the property on 16.10.2018 and obtained Encumbrance Certificate and was shocked to see that the Defendants No.1 and 2 got partitioned the suit schedule property by way of registered Partition Deed dated 04.03.1998 vide Document No.359/1998. The partition deed was entered between the Defendants No.1 and 2 and their mother Smt.
Rukum Bai, under the said partition deed Suit Schedule 'A' property was allotted to
Defendant No.1 and Suit Schedule 'B' property was allotted to defendant No.2 and Smt.
Rukum Bai. The Defendants No.1 and 2 and Smt. Rukum Bai had no valid right to enter into partition deed without the consent of the plaintiff as the suit schedule property
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belongs to Late Bandaru Rajaiah and after his death, the plaintiff is also having equal rights in the suit property. Without the consent of the plaintiff, the partition deed was executed by the Defendants No. 1 and 2 to deprive the rights of the plaintiff. Hence, the partition deed dated 04.03.1998 executed by the Defendants No.1 and 2 and Late Rukum
Bai is not enforceable under law and not binding on the plaintiff and the same is liable to be declared as null and void.
3.It is further stated in the plaint that on 26.06.2009, the defendant No.1 executed a registered Agreement of Sale cum GPA (with possession) vide Document No.2803/2009 in favour of Defendant No.3 bequeathing the 'A' Schedule property. The Defendant No.1 does not have any valid right, interest in the schedule 'A' property, hence the Defendant
No.1 cannot execute the Agreement of Sale cum GPA (with possession) without consent of plaintiff. The acts and deeds of the Defendant No.1 in respect of the AGPA does not bind on the plaintiff and no legal title will transfer in favour of the Defendant No.3.
Hence, the Agreement of Sale cum GPA dated 26.06.2009 is not legally valid document and is liable to be declared as null and void and not binding on the plaintiff.
4.It is further stated in the plaint that on 27.10.2010, defendant No.3 executed a registered Sale Deed vide Document No.4605/2010 as GPA Holder of the Defendant
No.1 in favour of Defendant No.4 bequeathing the suit schedule 'A' property. Defendant
No.3 does not have any valid right, interest in the suit schedule 'A' property, hence, the
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Defendant No.3 cannot execute the Sale Deed without the consent of the plaintiff. The acts and deeds of the Defendants No.1 and 3 in respect of the Suit Schedule 'A' Property does not bind on the plaintiff and no legal title will transfer in favour of the Defendant
No.4. The Sale Deed dated 27.10.2010 is not legally valid document and the same is not binding on the plaintiff and liable to be declared as null and void. The defendant No.4 on 11.10.2013 executed a registered Sale Deed vide Document No.4657/2013 in favour of Defendant No.5 bequeathing the 'A' Schedule property. The Defendant No.4 does not have any valid right and interest in the schedule 'A' property, hence the Defendant No.4 cannot execute the Sale Deed without the consent of the plaintiff. The acts and deeds of
Defendant No.4 in respect of the Schedule 'A' Property does not bind on the plaintiff and no legal title will transfer in favour of the Defendant No.5. The Sale Deed dated 11.10.2013 is not legally valid document and the same is not binding on the plaintiff, therefore, liable to be declared as null and void. The Defendants No.1 and 2 without partition of the suit schedule properties cannot deal with the third parties. Without dividing the suit properties, the Defendant No.1 does not have any valid right to execute a registered Agreement of Sale cum GPA in favour of the Defendant No.3. The plaintiff is having undivided interest and right in the suit schedule properties. The defendants
No.3 to 5 do not derive any valid right in respect of the suit schedule 'A' property, through above said instruments. The Defendants No. 1 and 2 in collusion with the defendants No.3 to 5, executed the said registered instruments to deprive the valuable rights of the plaintiff in the suit property. The plaintiff is in joint possession of the suit
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schedule property, hence, the plaintiff is entitled to seek partition of the suit schedule property along with the Defendants No.1 and 2. At the most, the Defendants No. 1and 2 can deal with their respective share in the suit property, but, contrary to that the
Defendants No.1 and 2 in collusion with the Defendants No. 3 to 5 got executed the above instruments with the undivided share of the plaintiff and the defendants are trying to alienate the suit schedule property to the third parties. Hence, the suit for partition of the suit schedule "A and B" properties and allotment of 1/3rd share each to the plaintiff, defendants No.1 and 2.
5.Defendants No.1 and 2 remained ex parte.
6.Defendants No.3 and 4 filed a written statement denying the allegations made against the defendants in the plaint and stated that the plaintiff's father late Bandaru
Rajaiah had two wife's. The plaintiff is the only son of his first wife and the defendants
No.1 and 2 are the two sons and one daughter (defendant No.6 herein) of second wife.
During life time of late Bandaru Rajaiah, he acquired two properties through his ancestral i.e., House bearing No.16-1-194, admeasuring 119 Sq.yds., situated at Pusala
Basthi Saidabad, Hyderabad and another property i.e. House bearing No.16-1-281 and 282, admeasuring 91.11 Sq.yds, situated at Pusala Basthi, Saidabad, Hyderabad. Both the two properties are very much located in Saidabad, Hyderabad and exactly opposite to each other. Subsequently, after death of the plaintiff's parents, there was a partition
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among the plaintiff and the defendants No.1 and 2 with the consent of step mother of the plaintiff. Accordingly, the defendants No.1 and 2 along with the second wife of the
Bandaru Rajaiah executed a Release Deed vide Document No.290/1996, dated 19.02.1996, releasing the joint family property of house bearing No.16-1-194 admeasuring 119 Sq.yds. situated at Pusala BasthiSaidabad, Hyderabad in favour of the plaintiff, where he is residing and the other property i.e. house bearing No.16-1-281 and 282, admeasuring 91.11 Sq.yds, situated at Pusala Basthi, Saidabad, Hyderabad fallen into the share of second wife of Late Bandaru Rajaiah. Later there was a partition among the second wife of late Bandaru Rajaiah and her two sons and executed a Partition Deed, vide Document No.359/1998, dated 04.03.1998. As per the said partition, the suit schedule 'A' property fallen into the share of Defendant No.1 and the suit schedule 'B' property fallen into the share of Defendant No.2 and their mother. After the partition among the joint family members of late Bandaru Rajaiah, the plaintiff, Defendants No.1 and 2 are living separately.
7.It is further stated in the written statement by the defendants No.3 and 4 that there after the defendant No.1 executed a registered Agreement of Sale cum GPA (with
Possession) vide Document No. 2803/2009, dated 26.06.2009 in favour of the Defendant
No.3 in respect of suit schedule 'A' property. Subsequently, on 27.10.2010 basing on the said Agreement of Sale cum GPA (with Possession) the Defendant No.3 executed a registered Sale Deed, vide Document No. 4605/2010 dated 27.10.2010, in favour of
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Defendant No.4 herein. After purchase of the suit schedule 'A' property by the
Defendant No.4, the plaintiff in collusion with the defendants No.1 and 2 tried to interfere into the suit schedule 'A' property, the Defendant No.4 got lodged a police complaint against the plaintiff and defendants No.1 and 2 and also filed a suit for
Perpetual Injunction against them in OS.No.3925/2010, on the file of Hon'ble XIX
Junior Civil Judge, City Civil Court at Hyderabad and after due contest, on 09.04.2012 the suit was decreed in favour of the defendant No.4. On 11.10.2013, the defendant No.4 sold the suit schedule A property to the defendant No. 5 through registered Sale Deed, vide Document No.4657/2013, since then defendant No.5 is in possession and enjoyment over the suit schedule 'A' property without interference from anybody. Since 2009 the defendants No.3 and 4 are in possession and enjoyment over the suit schedule
A property. The plaintiff is having full knowledge about the execution of partition deed, which is executed in the year 1998 and also after partition, the share of the Defendant
No.1 sold out through AGPA with possession his share to the Defendant No.3, and thereafter the defendant No.3 sold in favour of Defendant No.4 and thereafter defendant
No.4 sold in favour of Defendant No.5 through registered sale deed. Thus, the plaintiff is aware of all the transactions in respect of the suit schedule "A and B" properties. The plaintiff in collusion with defendants No.1 and 2 filed the present suit without any valid reason, without paying sufficient Court fee. The plaintiff is not in possession of either of the suit schedule 'A' & 'B' properties and the suit is filed only to extract money from the defendants No.2 to 5 by creating false story. Thus, the plaintiff approached the Court
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with unclean hands, filed the present suit by suppressing the true facts, no cause of action arose to file the suit.
8.It is further stated by the defendants No.3 and 4 in the written statement that the plaintiff is residing in Northern side of defendants No.3 and 4's property, which clearly shows that the plaintiff is having full knowledge about the sale of suit schedule 'A' property and the said property is in the possession of defendants No.3 and 4 who are enjoying the same. After purchasing the suit schedule property, the same was mutated in the Municipal Records and also Electricity Department, HMWSS (Water works) by defendants No.4 and 5 and defendants No.4 and 5 are paying taxes in respect of the suit schedule 'A' property. Hence, neither the plaintiff nor the Defendants No. 1 and 2 having any right or authority to seek partition of schedule 'A' and B' properties and the present suit is filed only to grab the suit schedule 'A and B' properties by suppressing the true facts. The plaintiff is admitting that the defendant No.5 is in possession of the suit schedule 'A' property and the defendant No.2 is in possession of suit schedule 'B' property, the plaintiff is not in possession of the suit schedule 'A and B' properties and he filed the present suit by paying nominal Court fee under Section 34(2) of the T.S.C.F & S.V. Act instead of paying Court fee under Section 34(1) of theT.S.C.F & S.V. Act, hence, the suit is liable to be dismissed. The plaintiff failed to include joint family property i.e., H.No.16-1-194, Pusala Basthi Saidabad, Hyderabad which the plaintiff acquired through Release Deed vide Document No.290/1996 dated 19.02.1996 before
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the Sub Registrar, Azampura executed by the defendants No.1 and 2 along with their mother. Thus, the plaintiff approached the Court with unclean hands by suppressing the true facts, hence, the suit is liable to be dismissed for Non-joinder of necessary parties to the suit. The plaintiff failed to include his sister as party to the suit, hence the suit is liable to be dismissed for non-joinder of necessary party and the suit is under valued.
Hence, praying the Court to dismiss the suit with exemplary costs.
9.A written statement is filed by the defendant No.5 denying the allegations made against the defendant No.5 in the plaint and stated that defendant No.5 has no knowledge regarding the death of Bandaru Rajaiah on 06.08.1987 and other aspects. On 26.06.2009 the defendant No.1 executed registered Agreement of sale-cum-GPA (with possession) vide document No.2803/2009 in favour of defendant No.3 bequeathing the suit schedule 'A' property in favour of defendant No.3. The plaintiff has no right to say that the defendant No.1 has no valid right or interest in the suit schedule 'A' property and defendant No.1 cannot execute the said Agreement of Sale-cum-GPA (with possession) without consent of the plaintiff herein and the said AGPA is not binding on the plaintiff and the said document cannot be declared as null and void. On 27.10.2010, the defendant No.3 executed registered sale deed vide document No.4605/2010 in favour of defendant No.4 bequeathing the suit schedule 'A' property. The plaintiff has no right to question the said sale deed executed by the defendant No.3 in favour of defendant No.4 and the said document is legally executed and binding on the plaintiff. Therefore, the
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said document cannot be declared as null and void and not binding on the plaintiff. On 11.10.2013, the defendant No.4 executed registered sale deed vide document
No.4657/2013 in favour of defendant No.5 bequeathing the suit schedule 'A' property.
Thus, the defendant No.1 being the absolute owner executed agreement of sale-cum-
GPA with possession in favour of defendant No.3, the defendant No.3 in turn executed registered sale deed in favour of defendant No.4, the defendant No.4 inturn executed registered sale deed in favour of defendant No.5 in respect of the suit schedule 'A' property, hence all the above said documents are legally valid and binding on the plaintiff. The defendant No.5 since the date of purchase of the suit schedule 'A' property, is in possession of the same without any interference from anybody. The plaintiff being the neighbour of defendant No.5 residing towards Northern side of the defendant No.5's property is aware about the sale of suit schedule 'A' property and that the defendant No.5 is in possession and enjoying over the suit schedule 'A' property since 2013 and the defendant No.5's vendor's GPA holder was in possession of the suit schedule 'A' property from 2009 and he executed sale deed in favour of the defendant
No.4 in the year 2010 which clearly shows that the defendant No.5's Vendor's GPA i.e., defendants No.3 and 4 was in possession for last 10 years. Hence, the plaintiff has no right to seek to declare the above documents as null and void without paying any requisite Court Fee to seek such relief.
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10.It is further stated by the defendant No.5 in the written statement that the plaintiff has fully knowledge about the execution of partition deed in the year 1998 and also after partition, the share of the defendant No.1 was sold out (through AGPA with Possession) to the defendant No.3 and inturn the defendant No.3 sold out in favour of defendant
No.4. Thereafter, defendant No.4 in favour of defendant No.5 through registered sale deed. All these days knowingly, the plaintiff kept silent, now with the collusion of defendants No.1 and 2, filed the present suit with false contents, without any valid reason, without paying proper Court Fee as the plaintiff is not in possession of the suit schedule 'A and B' properties and the suit is filed only to extract money from the defendant No.5. After purchase of the suit schedule 'A' property, the defendant No.5 never tried to alienate the suit schedule 'A' property to the third parties as alleged by the plaintiff. The plaintiff has not filed a single scrap of paper to show that the defendant
No.5 was intending to sell the suit schedule 'A' property to the third parties. Thus, the plaintiff approached the Court with unclean hands by suppressing the facts without any cause of action. The defendant No.5 is in possession of house bearing No.16-1-281 and 282/1, Poosala Basthi, Saidabad, Hyderabad, after purchase from the defendant No.4.
The plaintiff developed grudge with the family members of the defendant No.5 and demanded huge amount and thereafter filed the present suit against the defendant No.5 and others.
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11.It is further stated by the defendant No.5 in the written statement that the plaintiffs father late Bandaru Rajaiah had two wives. The plaintiff is the only son of first wife and defendants No.1 and 2 are the sons of second wife namely late Bandaru Rukum Bai.
During the life time of late Bandaru Rajaiah, he acquired two properties i.e., House bearing No.16-1-194, admeasuring 119 Sq. yards situated at Pusala Basthi, Saidabad,
Hyderabad and other property i.e., house bearing No.16-1-281 and 282, admeasuring 91.11 Sq. yards situated at Pusala Basthi, Saidabad, Hyderabad which were acquired through his ancestral. Subsequently, after the death of plaintiff's parents, there was a partition among the plaintiff and defendants No.1 and 2 with the consent of step mother of the plaintiff. Accordingly the defendants No.1 and 2 along with the second wife of the Bandaru Rajaiah executed Release Deed vide document No.290/1996 dated 19.02.1996 releasing the joint family property of house bearing No.16-1-194, admeasuring 119 Sq.yards, situated at Pusala Basthi, Saidabad, Hyderabad in favour of the plaintiff where the plaintiff is residing. The other property i.e. house bearing No.16- 1-281 and 282, admeasuring 91.11 Sq.yards, situated at Pusala Basthi, Saidabad,
Hyderabad fallen to the share of second wife of Late Bandaru Rajaiah. Later there was a partition among the second wife of late Bandaru Rajaiah and her two sons executed a
Partition Deed, vide Document No.359/1998, dated 04.03.1998. As per the said partition, schedule 'A' property fallen to the share of Defendant No.1 and schedule 'B' property fallen to the share of Defendant No.2 and his mother. After the partition among the joint family members of late Bandaru Rajaiah, the plaintiff and the Defendants No.1
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and 2 made construction of ground floor in their respective allotted/acquired properties.
There after the defendant No.1 executed a registered Agreement of Sale-cum-GPA (with
Possession), vide Document No.2803/2009, dated 26.06.2009 executed by the defendant
No.1 in favour of Defendant No.3 in respect of the suit schedule 'A' property. On 27.10.2010 basing on said Agreement of Sale-cum-GPA (with Possession) the
Defendant No.3 executed a registered Sale Deed, vide Document No. 4605/2010 dated 27.10.2010, in favour of Defendant No.4 herein. After purchase of schedule 'A' property by the Defendant No.4 from the defendant No.3, when the plaintiff and the defendants
No.1 and 2 tried to interfere into the suit schedule 'A' property, the Defendant No.4 filed a suit vide O.S.No.3925/2010 on the file of Hon'ble XIX Junior Civil Judge, City Civil
Court, at Hyderabad seeking for Perpetual Injunction. After due contest the suit was decreed on 09.04.2012. Thereafter on 11.10.2013, the defendant No.5 purchased the suit schedule 'A' property from the defendant No.4 through registered sale deed vide document No.4657/2013, since then the defendant No.5 is in possession and enjoyment of the said property without any interference from anybody. The plaintiff is residing in
Northern side of the defendant No.5's property. Defendant No.2 is residing towards
Western Side of the defendant No.5's property which clearly shows that the plaintiff as well as the defendants No.1 and 2 having full knowledge about the sale of schedule 'A' property and the said property is in possession of the defendant No.5 and enjoying the same. After purchase of the suit schedule 'A' property, the defendant No.5 mutated his name in the Municipal Records, Electricity Department, HMWSS (water words) and
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paying taxes in respect of the suit schedule 'A' property. Therefore, neither the plaintiff nor the defendants No.1 and 2 have any right or authority to seek partition of the suit schedule 'A and B' properties, only to grab the suit schedule properties the present suit is filed. The defendant No.5 prudently obtained loan from the Judicial Employees Co- operative Credit Society Limited, City Civil Court premises, Hyderabad for construction in his suit schedule 'A' property. The plaintiff is not in possession of the suit schedule 'A and B' properties, but he filed the present suit by paying Court fee under Section 34 (2) of the TSCF and SV Act instead of paying Court Fee under Section 34 (1) TSCF and SV
Act. Hence, the suit is liable to be dismissed. No cause of action arose to file the present suit and the present suit is filed only to grab the property of defendant No.5. The plaintiff failed to include joint family property i.e., H.No.16-1-194, Pusala Basthi,
Saidabad, Hyderabad which is acquired through Release Deed vide document
No.290/1996 dated 19.02.1996 executed by the defendants No.1 and 2 along with their mother. Thus, the plaintiff approached the Court with unclean hands by suppressing the facts. Hence, praying the Court to dismiss the suit with exemplary costs.
12.A written statement is filed by the defendant No.6 stating that the defendant No.6 is impleaded as per the Orders in of the Hon'ble High Court passed in CRP
No.2131/2023 dated 05.06.2024. The plaintiff, defendants No.1,2 and 6 are the legal heirs of late Bandaru Rajaiah and Bandaru Rukmini Bai. The plaintiff, defendants
No.1,2 and 6's father Sri Bandaru Rajaiah died on 06.08.1987. The mother of the
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defendant No.6 Smt. Bandaru Rukmini Bai died on 28.01.2018 leaving behind the plaintiff, defendants No.1,2 and 6 as the sole legal heirs and successors of their estates both movables and immovables. The contents of the plaint are true and the suit schedule 'A and B' properties were purchased by late Bandaru Rajaiah the father of the plaintiff, defendants No.1, 2 and 6 with his own funds, hence it is the self acquired property.
Thereafter, the demise of their father and mother i.e., Sri Bandaru Rajaiah and Smt.
Bandaru Rukmini, their legal heirs are the plaintiff, defendants No.1,2 and 6. Hence, the plaintiff, defendants No.1,2 and 6 became the joint owners of the suit schedule 'A and B' properties and are entitled for 1/4th share each in the suit schedule 'A and B' properties.
But the defendant No.6 has no objection for grant of decree and judgment as prayed in the plaint. The defendant No.6 admits all the contents in the plaint are true and correct.
13.The following issues were framed for trial on 27.11.2019:
1. Whether suit schedule 'A' and 'B' properties are available for partition?
2. Whether suit schedule 'A' and 'B' properties are joint family properties and are liable for partition?
3. If so, whether plaintiff, defendants No.1 and 2 are entitled for 1/3 rd share each in suit schedule 'A' and 'B' properties as prayed for?
4. Whether plaintiff is entitled for mesne profits of 1/3 rd share each in plaint 'A and B' schedule properties as prayed for?
5. Whether Court Fee paid by plaintiff is correct?
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6. Whether plaintiff is entitled to declare partition deed vide document
No.359/1998 dated 04.03.1998 as null and void and not binding on the
plaintiff?
7. Whether plaintiff is entitled to declare registered Agreement of Sale cum
GPA vide document No.2803/2009 dated 26.06.2009 as null and void and not
binding on the plaintiff?
8. Whether plaintiff is entitled to declare the sale deed vide document No.4605/2010 as null and void and not binding on the plaintiff?
9. Whether plaintiff is entitled to declare document No.4657/2013 dated 11.10.2013 as null and void and not binding on the plaintiff?
10. If so, to what relief?
14.The following additional issues were framed for trial on 10.11.2022:
1. Whether the suit is bad for non-joinder of necessary party?
2. Whether the suit is barred by limitation?
15.On behalf of the plaintiff, the plaintiff got examined herself as PW1 and got marked Exs.A1 to A8. On behalf of defendants, the defendant No.3 got examined himself as DW1, the defendant No.5 got examined himself as DW2 and got marked
Exs.B3 and B4. Exs.B1 and B2 are got marked through PW1 at the time of cross- examination.
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16.Heard arguments of both sides at length. Written Arguments filed by the plaintiff, defendants No.1 and 2 and defendant No.5.
17.To prove the claim of the plaintiff, the plaintiff got examined himself as PW1 and got marked Exs.A1 to A8. Ex.A1 is the certified copy of partition deed vide document
No.359/1998 dated 04.03.1998. Ex.A2 is the certified copy of AGPA vide document
No.2803/2009 dated 26.06.2009. Ex.A3 is the certified copy of sale deed vide document No.4605/2010 dated 27.10.2010. Ex.A4 is the certified copy of sale deed vide document No.4657/2013 dated 11.10.2013. Ex.A5 is the Encumbrance Certificate
dated 16.10.2018. Ex.A6 is the Market Value Certificate dated 16.10.2018. Ex.A7 is
the original death certificate of Rukumbai. Ex.A8 is the original death certificate of B.
Rajaiah.
18.To prove the claim of the defendants, the defendant No.3 got examined himself as
DW1, the defendant No.5 got examined himself as DW2 and got marked Exs.B3 and
B4. Exs.B1 and B2 were got marked through PW1 at the time of cross-examination.
Ex.B1 is the certified copy of Release Deed vide document No.290/1996 dated 19.02.1996. Ex.B2 is the photographs (3 in No.) with C.D. Ex.B3 is the Encumbrance
Certificate dated 19.12.2018. Ex.B4 is the certified copy of judgment and decree in
O.S.No.3925/2010 dated 09.04.2012
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19.For the sake of convenience and in order to avoid repetition issue No.1, 2 and 3 are answered together.
ISSUE No.1: "Whether suit schedule 'A' and 'B' properties are available for
partition?"
ISSUE No.2: "Whether suit schedule 'A' and 'B' properties are joint family
properties and are liable for partition?"
ISSUE No.3: "If so, whether plaintiff, defendants No.1 and 2 are entitled for 1/3 rd share each in suit schedule 'A' and 'B' properties as prayed for?"
The undisputed facts of the case are that one Bandaru Rajaiah married one
Rangamma and through Rangamma, Bandaru Rajaiah had one son by name Bandaru
Krishna who is the plaintiff herein. After the demise of Rangamma i.e., the mother of the plaintiff, Bandaru Rajaiah married one Rukum Bai. Thus, Rukum Bai is the second wife of Bandaru Rajaiah and through Rukum Bai, Bandaru Rajaiah had two sons and a daughter. The two sons are Bandaru Kashinath/defendant No.1, Bandaru
Jagadish/defendant No.2 and a daughter is Gajula Rani/defendant No.6. Thus, Bandaru
Rajaiah is the father of the plaintiff, defendants No.1,2 and 6. Therefore, the first wife of Bandaru Rajaiah had a son i.e., the plaintiff herein and through second wife Bandaru
Rajaiah had two sons and a daughter i.e., defendants No.1,2 and 6 herein. Bandaru
Rajaiah acquired two properties during his life time i.e., H.No.16-1-194, admeasuring 119 Sq. yards situated at Pusala Basthi, Saidabad, Hyderabad and another property i.e.,
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house bearing No.16-1-281 and 282, admeasuring 91.11 Sq. yards situated at Pusala
Basthi, Saidabad, Hyderabad. The said two properties owned by Bandaru Rajaiah are located opposite to one another in the said Pusala Basthi, Saidabad, Hyderabad. The suit schedule A and B properties herein pertains to the above said house bearing No.16- 1-281 and 282 admeasuring 91.11 Sq. yards owned by Bandaru Rajaiah along with another H.No.16-1-194, admeasuring 119 Sq. yards during his life time. Bandaru
Rajaiah died on 06.08.1987. Ex.A8 is the Death Certificate of Bandaru Rajaiah which reveals that Bandaru Rajaiah died on 06.08.1987. Bandaru Rukum Bai the step mother of the plaintiff and mother of the defendants No.1,2 and 6 and second wife of Bandaru
Rajaiah died on 28.01.2018. Ex.A7 is the Death Certificate of Bandaru Rukum Bai.
Thus, Bandaru Rajaiah died on 06.08.1987 leaving behind his second wife Rukum Bai and three sons and a daughter. The three sons are plaintiff (through first wife), defendants No.1 and 2 (through second wife) and a daughter defendant No.6 (through second wife). In the year 1996 through registered release deed vide document
No.290/1996 dated 19.02.1996 (Ex.B1 is the certified copy of said release deed dated 19.02.1996) defendants No.1,2 along with their mother Rukum Bai executed Release deed in favour of the plaintiff in respect of H.No.16-1-194, admeasuring 119.94
Sq.yards situated at Saidabad, Hyderabad. The said property released by the defendants
No.1, 2 along with their mother through registered Release Deed dated 19.02.1996 is one of the two properties owned by the Bandaru Rajaiah during his life time. Ex.B3 is the Encumbrance Certificate pertaining to the property released in favour of the plaintiff
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by the defendants No.1,2 and their mother and Ex.B1 is reflected in Ex.B3. The Rukum
Bai the second wife of Bandaru Rajaiah along with her two sons i.e., defendants No.1 and 2 herein executed a registered partition deed vide document No.359/1998 dated 04.03.1998 in respect of the suit schedule properties wherein the defendant No.1 herein was allotted the suit schedule A property herein admeasuring 45.5 Sq. yards towards his share and suit schedule B property was allotted towards the share of defendant No.2 and
Rukum Bai admeasuring 45.5 Sq. yards. Thus, under Ex.A1 partition deed dated 04.03.1998 the suit schedule A and B properties were partitioned among the defendants
No.1,2 and their mother. Thereafter, the defendant No.1 executed agreement of sale cum GPA with possession vide document No.2803/2009 dated 26.06.2009 in favour of defendant No.3 in respect of the suit schedule A property. Ex.A2 is the certified copy of said AGPA dated 26.06.2009 . Thereafter, under Ex.A3 defendant No.3 executed sale deed in favour of the defendant No.4 vide document No.4605/2010 dated 27.10.2010 in respect of the suit schedule A property. Thereafter, under Ex.A4 defendant No.4 executed sale deed vide document No.4657/2013 dated 11.10.2013 in favour of defendant No.5 in respect of the suit schedule A property. Ex.A5 is the certified copy of Encumbrance Certificate pertaining to the suit schedule A property wherein Exs.A2 to A4 are reflected. Ex.A6 is the Market Value Certificate of the suit schedule A property. Ex.B2 is the photographs with C.D pertaining to the suit schedule property. The defendant No.4 herein filed a suit for perpetual injunction in respect of suit schedule A property herein against the plaintiff, defendants No.1 and 2 herein vide
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O.S.No.3925/2010 on the file of XIX Junior Civil Judge, City Civil Court, Hyderabad.
In the said suit, the plaintiff herein being the defendant No.3 therein remained ex parte.
The defendants No.1 and 2 herein being the defendants No.1 and 2 therein contested the suit. Further under Ex.B4, the said suit vide O.S.No.3925/2010 was decreed in favour of defendant No.4 herein being the plaintiff therein by granting perpetual injunction restraining the defendants therein from interfering with the peaceful possession of the defendant No.4 herein over the suit schedule property therein which is the suit schedule
A property herein. As on the date of filing of the suit, the defendant No.2 is in possession of the suit schedule B property and the defendant No.5 is in possession of the suit schedule A property through tenant of defendant No.5.
20.It is the case of the plaintiff that as Bandaru Rajaiah was the absolute owner of the suit schedule A and B properties, after his demise, the three sons of Bandaru Rajaiah along with the daughter succeeded the suit schedule properties along with his wife Smt.
Rukum Bai, as Rukum Bai died on 28.01.2018, the plaintiff, defendants No.1,2 and 6 have succeeded the suit schedule property jointly and the plaintiff is entitled to 1/4th share over the suit schedule property, but without the knowledge of the plaintiff and defendant No.6, defendants No.1, 2 and their mother executed Ex.A1 partition deed
dated 04.03.1998 in respect of the suit schedule A and B properties, the defendant No.1
executed Ex.A2 AGPA dated 26.06.2009 in favour of the defendant No.3 in respect of the suit schedule A property. Thereafter, the defendant No.3 sold the suit schedule A
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property under Ex.A3 sale deed dated 27.10.2010 to the defendant No.4 and further defendant No.4 under Ex.A4 sale deed dated 11.10.2013 sold the suit schedule A property to the defendant No.5. Therefore, the Exs.A2 to A4 are to be declared as null and void. Further the defendants No.1, 2 along with their mother Rukum Bai without the knowledge and consent of the plaintiff and defendant No.6 executed a partition deed among themselves in respect of the suit schedule A and B properties under Ex.A1 dated 04.03.1998. Basing on Ex.A1, the defendant No.1 executed Ex.A2 in favour of the defendant No.3, thereafter defendant No.3 executed Ex.A3 in favour of defendant No.4 and defendant No.4 executed Ex.A4 in favour of defendant No.5. Therefore, Exs.A1 to
A4 are to be declared as null and void and not binding on the plaintiff and to partition the suit schedule properties and allot 1/4th share to the plaintiff and allot 1/4th share of to each defendants No.1, 2 and 6.
21.It is the case of the defendants No.3,4 and 5 that the plaintiff filed the present suit by suppressing the material facts that the plaintiff is the son of Bandaru Rajaiah through his first wife, but the plaintiff falsely stated in the plaint that the plaintiff is the son of Rukum Bai along with defendants No.1 and 2. Rukum Bai is the second wife of
Bandaru Rajaiah and through Rukum Bai, Bandaru Rajaiah had two sons and a daughter i.e., defendants No.1, 2 and 6 herein. After demise of Bandaru Rajaiah, the property was devolved between the plaintiff being the son of first wife of Bandaru
Rajaiah and the second wife and his children. Thus, out of two properties owned by the
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Bandaru Rajaiah which are located opposite to one another, one property bearing
H.No.16-1-194 admeasuring 119 Sq. yards situated at Pusala Basthi, Saidabad,
Hyderabad was released in favour of the plaintiff through registered Release deed under
Ex.B1 dated 19.02.1996 by the defendants No.1,2 along with their mother Rukum Bai.
Therefore, by virtue of Ex.B1 it is clear that the plaintiff has no right or share over the suit schedule A and B properties. Thereafter, the Rukum Bai and his two sons i.e., the defendants No.1 and 2 executed a partition deed among themselves in respect of the suit schedule A and B properties under Ex.A1 dated 04.03.1998. As per Ex.A1, the defendant No.1 was allotted suit schedule A property towards his share and defendant
No.2 was allotted suit schedule B property towards his share. Therefore, the defendant
No.1 being the absolute owner of the suit schedule A property executed Ex.A2 AGPA
dated 26.06.2009 in favour of the defendant No.3, defendant No.3 in turn sold the suit
schedule A property to the defendant No.4 under Ex.A3 and defendant No.4 inturn sold the suit schedule A property to the defendant No.5 under Ex.A4. Therefore, Exs.A1 to
A4 are legally valid and the plaintiff is aware of the same since the year 1998 and purchase of the suit schedule property by defendant No.3 from defendant No.1 in the year 2009 itself and thereafter defendant No.4 from defendant No.3 in the year 2010 and thereafter purchase of the suit schedule property by the defendant No.5 from defendant No.4 in the year 2013. The plaintiff is well aware as the plaintiff resides in the opposite house which was released in favour of the plaintiff under Ex.B1, since one decade, the defendant No.1 was not in possession of the suit schedule A property as he
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sold the same and delivered to defendant No.3 in the year 2009 itself and thereafter defendant No.4 and 5 subsequently purchased the same and are in possession of the same. The plaintiff in collusion with defendants No.1, 2 and 6 filed the present suit to cause wrongful loss to the defendants No.3 to 5 and to extract money from them.
22.The plaintiff got examined as PW1 and during the course of cross-examination,
PW1 admitted that his fatherBandaru Rajaiah had two wives and the plaintiff is the son of his first wife and defendants No.1 and 2 are the sons through second wife of his father. PW1 categorically admitted that the mother of the defendants No.1 and 2 executed Released deed in favour of the plaintiff in respect of the House bearing No.16- 1-194 to the extent of 119.91 Sq. yards vide release deed bearing document
No.290/1996 i.e., Ex.B1 and prior to the execution of Ex.B1, no other documents were available with the family members in respect of the suit schedule property. Further
PW1 categorically admitted that after demise of his father, the property was partitioned between the family members, half of the share to the first wife and remaining half share to the second wife of his late father. Subsequently the second wife of his late father partitioned her share between defendants No.1 and 2 to an extent of 45.5 Sq. yards each in H.No.16-1-281, which admission of the plaintiff clearly reveals that the partition of the properties of late Bandaru Rajaiah took place after his demise. Accordingly under
Ex.B1 the property bearing H.No.16-1-194 was released in favour of the plaintiff by his step mother and step brothers and the suit schedule A and B properties were fallen to
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the share of second wife ofBandaru Rajaiah, hence she along with her two sons executed Ex.A1 partition deed wherein the suit schedule A property has fallen to the share of the defendant No.1 and suit schedule B property was fallen to the share of defendant No.2 and his mother.
23.PW1 further admitted that the defendants No.1 and 2 constructed residential house in the suit schedule property of their above said portions uninterruptedly are residing till date, and having electricity connection and paying municipal tax. PW1 categorically admitted that the defendant N.1 sold his share to the defendant No.3 through Ex.A2, subsequently defendant No.3 executed sale deed under Ex.A3 in favour of defendant No.4 and thereafter defendant No.4 executed sale deed in respect of the suit schedule A property under Ex.A4 in favour of defendant No.5 and defendant No.4 filed O.S.No.3925/2010 on the file of XIX Junior Civil Judge, City Civil Court,
Hyderabad wherein the defendants No.1 to 3 are the defendants No.1,2 herein along with plaintiff herein. PW1 categorically admitted that in O.S.No.3925/2010, plaintiff/PW1 received summons in the capacity of the defendants and PW1 was set ex parte in O.S.No.3925/2010 and said suit was decreed on 09.04.2012 and said decree was not challenged before the Appellate Court and PW1 does not know whether the defendant No.4 executed Ex.A4 by virtue of judgment and decree in O.S.No.3925/2010
dated 09.04.2012 and till date the said decree dated 09.04.2012 in O.S.No.3925/2010 is
subsisting, which admission of PW1 clearly reveals that PW1 is aware of execution of
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Exs.A1 to A4 and also filing of O.S.No.3925/2010 by the defendant No.4 herein against the defendants No.1and 2 herein and plaintiff herein seeking the relief of perpetual injunction in respect of the suit schedule A property and obtained judgment and decree in favour of the defendant No.4 herein under Ex.B4 dated 09.04.2012. Perusal of Ex.B4 judgment and decree in O.S.No.3925/2010 dated 09.04.2012, it is crystal clear that the defendant No.1 herein admitted the execution of Ex.A2 by the defendant No.1 in favour of defendant No.3 and thereafter execution of Ex.A3 by the defendant No.3 in favour of defendant No.4 and defendant No.1 never objected regarding the validity of execution of Exs.A2 and A3 and further the defendant No.1 herein admitted the possession of the defendant No.4 over the suit schedule A property herein in O.S.No.3925/2010. Though it is argued by the learned counsel for the plaintiff herein that the plaintiff herein is not aware of O.S.No.3925/2010 filed by the defendant No.4 against the defendant No.1, 2 and plaintiff herein by arraying them as defendants No.1 to 3 therein. From the admission of PW1, it is crystal clear to the Court that the plaintiff herein received summons in O.S.No.3925/2010 filed by the defendant No.4 herein in respect of the suit schedule A property seeking the relief of perpetual injunction against the defendants
No.1,2 and plaintiff herein and that the suit was decreed under Ex.B4 judgment dated 09.04.2012 in favour of defendant No.4 herein, said aspect regarding Exs.B1 and B4 which are most crucial were suppressed by the plaintiff in the plaint.
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24.During the course of cross-examination, PW1 further deposed that he filed the suit for partition of the property of House bearing No.16-1-282 admeasuring 45.5 Sq.
yards and PW1 has not filed suit against five defendants. Defendants No.1 and 2 are his own brothers and they are the step mother's sons. Without the knowledge of the PW1, defendant No.1 sold away the suit schedule A property to the defendants No.3 and 4 about 10 years back and about five to six years back PW1 came to know regarding the same presently the purchaser of the suit schedule A property is in possession of same and the suit schedule A and B properties are opposite to the house of PW1. PW1 further admitted that his house bearing Municipal No.16-1-194 admeasuring 94 or 95
Sq. yards, but as per registered document the extent of the property is shown as 118 Sq.
yards and the said house is acquired by the plaintiff/PW1 through his ancestors, it belongs to his grand mother i.e., PW1's father's mother by name B. Laxmamma. The suit schedule property was purchased by the father of the PW1 and PW1 has not filed any proof of document to show that his father purchase the suit schedule property. PW1 further deposed that neither his father nor his family members paid municipal tax to the suit schedule property as it is slum area and for last 43 years, PW1 and his family members are residing in the H.No.16-1-194, Pusala Basti and in H.No.16-1-282 prior to the birth of the plaintiff it was purchased from one Talla Shamaraih and PW1 does not know how his father purchased the suit schedule property whether through registered document or notarized document or on white paper. After the death of mother of PW1 his father got married Rukum Bai and after the death of father of PW1 his step mother
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used to stay with the defendants No.1 and 2 and she died five to six years back. PW1 further admitted that his father purchased the property admeasuring 91Sy. yards which was divided into two parts about 20 years back. One property admeasuring 45.5 Sq.
yards and another property to an extent of 45.5 Sq. yards after making construction in the above property partition took place in between defendants No.1 and 2. At the time of construction i.e., prior to the partition, PW1 demanded his mother and brothers to give his share and for not giving the share of PW1, he has not issued legal notice and not initiated any legal proceedings against his step mother and brothers and step mother and defendants No.1 and 2 have not executed any document assuring PW1 to give his share in the property. Thus, from the admission of PW1, it is clear to the Court that no documentary evidence is placed before the Court by the plaintiff to establish that his father Bandaru Rajaiah purchased the suit schedule property from one Talla Shamaraih and further 20 years back the suit schedule A and B properties were partitioned between defendants No.1 and 2 and they constructed their houses and at the time of construction of houses i.e., 20 years back, the plaintiff demanded the defendants No.1,2 and his step mother to give the share of the plaintiff in the suit schedule A and B properties, but no steps were taken by the plaintiff against the defendants No.1, 2 and his step mother since 20 years. Mean time defendants No.1 and 2 constructed houses in the shares allotted to them under Ex.A1 and defendant No.1 sold away the suit schedule A property under Ex.A2 and at present defendant No.2 is in possession of the suit schedule B property and defendant No.5 is in possession of the suit schedule A
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property.
25.During the course of cross-examination, PW1 deposed that after retirement he filed the suit and he retired from service in the year 2019. However, the suit is filed in the year 2018. Subsequently, it is admitted by the PW1 that he filed the suit in the year 2018 when he was in service which reveals the conduct of the PW1. PW1 further admitted that in the plaint and chief affidavit, he mentioned that his father late Bandaru
Rajaiah was blessed with three sons i.e., plaintiff, defendants No.1 and 2 through
Rukum Bai who is the second wife of his father and that plaintiff, defendants No.1, 2 and Rukum Bai are the legal heirs of late Bandaru Rajaiah. PW1 further admitted that he has not mentioned in the plaint and chief affidavit that his father had two wives and plaintiff was blessed through the first wife of his father and through second wife, defendants No.1,2 and 6 were begotten which reveals the conduct of the plaintiff that intentionally the plaintiff suppressed the fact that the father of the plaintiff had two wives and plaintiff is the son of his first wife and said aspect is not mentioned in the plaint and chief affidavit of PW1.
26.During the course of cross-examination, PW1 categorically admitted that Ex.B1 release deed was executed in the year 1996 between the plaintiff, defendants No.1, 2 and step mother Rukum Bai. But there is no mention regarding Ex.B1 in the plaint, chief affidavit of PW1 which conduct of the plaintiff reveals that the plaintiff
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intentionally suppressed the material fact of execution of ex.B1 release deed in favour of the plaintiff by defendants No.1,2 and their mother. PW1during the course of cross- examination admitted that he has not convened any meeting with the family members for partition of the suit schedule property and not conducted any meeting with local people/elders prior to the filing of the suit and PW1 has good relation with defendants
No.1, 2 and 6, till date and he does not remember on what date he demanded for partition and he is not aware who brought Exs.A5 and A6 and PW1 has not filed
Exs.A5 and A6 in the Court and he does not know who filed the documents which reveals the conduct of the plaintiff that the plaintiff is not aware of the documents filed by the plaintiff and extent of the property regarding which present suit is filed. Though it is stated in the plaint that a meeting was conducted in the presence of local people and elders between the plaintiff, defendants No.1 and 2. During the course of cross- examination, PW1 categorically stated that no such meeting was conducted for partition of the suit schedule property which version of the plaintiff is contradictory to his pleadings.
27.During the course of cross-examination, PW1 categorically admitted that as per
Ex.A1 schedule A property has fallen to the share of defendant No.1 and schedule B property fallen to the share of defendant No.2 and Rukum Bai and after partition, the defendants No.1 and 2 and Rukum Bai were residing in their allotted share of the property. Under Ex.B1, the house bearing No.16-1-194 admeasuring 119.94 Sq. yards
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situated at Saidabad, Hyderabad was allotted to the share of the plaintiff wherein the plaintiff is residing for past 43 years. Ex.B2 photographs reflects the house where the plaintiff is residing. Thus, PW1 categorically admitted that out of two properties owned by his father, after his demise one property was fallen to the share of PW1, hence Ex.B1
Release Deed was executed by defendants No,1,2 and their mother in favour of the plaintiff/PW1.
28.PW1 categorically admitted that his brothers defendants No.1 and 2 know about the filing of the present suit and also pending before this Court. After purchase of the suit schedule A property from the defendant No.1 by Smt. Lavanya and also one
Narsingh Rao who is the husband of Lavanya plaintiff protested with about purchase of the suit schedule A property. PW1 denied the suggestion that the defendant No.4 filed the suit for perpetual injunction vide O.S.No.3925/2010 on the file of XIX Junior Civil
Judge, City Civil Court, Hyderabad and that PW1 does not remember whether the
notices were served on PW1 in the said suit. Initially PW1 during the course of cross- examination categorically admitted that he received summons in O.S.No.3925/2010 filed by the defendant No.4 herein. Thus, there is a contradiction in the evidence of
PW1 during the course of cross-examination in respect of receipt of summons in
O.S.No.3925/2010 filed by the defendant No.4 as once PW1 deposed that he received
summons in the said suit and thereafter stated that he does not remember that whether he received the said summons or not which reveals the conduct of the plaintiff/PW1 and
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that PW1 is not a reliable witness.
29.PW1 during the course of cross-examination admitted that defendant No.1 executed Ex.A2 in favour of defendant No.3 and defendant No.3 executed Ex.A3 sale deed in favour of defendant No.4 and defendant No.4 executed Ex.A4 sale deed in favour of defendant No.5 in respect of the suit schedule property. After purchase of the suit schedule A property by the defendant No.5 while he was repairing defendant No.2 obstructed defendant No.5 from attending repairing works. Defendant No.5 and his family members are residing beside the house of the plaintiff for about 10 years.
Defendant No.5 is residing in the same locality of Saidabad and PW1 does not know whether the defendant No.5 got mutated his name in GHMC, electricity department as well water works. PW1 deposed that he does not know on whose name Ex.B1 release deed was executed which reveals the conduct of the PW1 as PW1 himself admitted twice during the course of cross-examination that Ex.B1 release deed was executed by defendants No.1, 2 and Rukum Bai in favour of the plaintiff and thereafter deposed that he does not know in whose favour Ex.B1 released deed is executed. Infact it is admitted by PW1 during the course of cross-examination that he is residing in H.No.16- 1-194 since 43 yeas and said property is released in favour of the plaintiff by the defendants No.1, 2 and Rukum Bai under Ex.B1 which reveals the conduct and intention of the plaintiff/PW1.
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30.PW1 further admitted that the defendants No.1 and 2 constructed ground floor in their respective allotted shares as per Ex.A1 partition deed and PW1 has not gone through the written statement and counters of defendants No.3, 4 and 5. PW1 cannot bring defendants No.1 and 2 in the present suit and PW1 has not made his sister Gajula
Rani as party to the suit. PW1 stated that at the time of filing of the suit he has not made his sister Gajula Rani party to the suit, but subsequently she is impleaded as defendant No.6 and knowingly well that he filed the suit without making his sister as party to the suit. PW1 is concerned with defendants No.1 and 2 and he has no concern with defendants No.3 to 5 hence he filed the present suit. The suit schedule property was purchased by the father of PW1 and defendant No.6 has equal share in the suit schedule property which statement of PW1 reveals that PW1 is concerned about defendants No.1 and 2, hence he filed the present suit which reveals that the plaintiff is in collusion with defendants No.1,2 and 6, filed the present suit knowingly well that by virtue of Ex.B1 the properties of his father were partitioned and accordingly the share of the plaintiff was released under Ex.B1 release deed by defendants No.1, 2 and Rukum
Bai and thereafter defendants No.1, 2 and Rukum Bai executed Ex.A1 partition deed among themselves in respect of the suit schedule A and B properties. Thereafter, basing on Ex.A1, defendant No.1 executed Ex.A2 in favour of defendant No.3, thereafter defendant No.3 sold the suit schedule A property to defendant No.4 under Ex.A3 and defendant No.4 in turn sold the suit schedule A property to defendant No.5 under
Ex.A4.
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31.The learned counsel for the plaintiff argued that without the consent and knowledge of the plaintiff and defendant No.6 as Ex.A1 is executed the said partition deed under Ex.A1 is not valid. However, the plaintiff suppressed the execution of
Ex.B1 release deed in favour of the plaintiff and as discussed supra, and in view of admission made by the PW1, it is clear that while executing Ex.B1 the properties of father of plaintiff were partitioned, accordingly plaintiff obtained the property reflected under Ex.B1 towards his share, hence the said release deed was executed under Ex.B1 in favour of the plaintiff by the defendants No.1,2 and Rukum Bai and the properties reflected under Ex.A1 were fallen to the share of second wife and children of B.
Rajaiah. Therefore, the execution of Ex.A1 by defendants No.1, 2 and their mother in respect of the suit schedule A and B properties cannot be questioned by the plaintiff who obtained the property reflected under Ex.B1 towards his share and is in possession and enjoying the same.
32.The learned counsel for the plaintiff argued that Ex.A2 AGPA with possession executed by the defendant No.1 in favour of defendant No.3 in respect of the suit schedule A property is not legally valid as no transfer of property under AGPA is legally valid as per settled law and in this aspect the learned counsel for the plaintiff relied on following decisions:
1. Decision reported in (2012) 1 Supreme Court Cases 656 between Suraj Lamp
and Industries Private Limited (2) Through Director vs. State of Haryana and
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Another, wherein it is held that:
"Scope of an agreement of sale: "A contract of sale does not of itself create ay interest in or charge on, the property. This is expressly declared in Section 54 of the Transfer of Property Act. The fiduciary character of the personal obligation created by a contract for sale is recognised in Section 3 of the Specific Relief Act, 1963 and in Section 91 of the Trusts Act. The personal obligation created by a contract of sale is described in Section 40 of the Transfer of Property Act as an obligation arising out of contract and annexed to the ownership of property, but not amounting to an interest or easement therein.
"That only on execution of conveyance, ownership passes from one party to another." "It is thus clear that a transfer of immovable property by way of sale can only be by a deed of conveyance (sale deed). In the absence of a deed of conveyance (duly stamped and registered as required by law), no right, title or interest in an immovable property can be transferred." "Any contract of sale (agreement to sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of Sections 54 and 55 of the T.P. Act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under Section 53-A of the T.P. Act). According to the T.P.Act, an agreement of sale, whether with possession or without possession, is not a conveyance. Section 54 of the T.P. Act enacts that sale of immovable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge on its subject matter." "Scope of Power of Attorney: A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorises the grantee to do the acts
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specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him." "Therefore, an SA/GPA/Will transaction does not convey any title nor creates any interest in an immovable property. The observations by the Delhi High Court in Ash M. Jain vs. Canara Bank, that the "concept of power of attorney sales has been recognised as a mode of transaction" when dealing with transactions by way of SA/GPA/Will are unwarranted and not justified, unintendedly misleading the general public into thinking that SA/GPA/Will transactions are some kind of a recognised or accepted mode of transfer and that it can be a valid substitute for a sale deed. Such decisions to the extent they recognise or accept SA/GPA/Will transactions as concluded transfers, as contrasted from an agreement to transfer, are not good law." "We therefore, reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. Transactions of the nature of "GPA sales" or " SA/GPA/Will transfers" do not convey title and do not amount to transfer, nor can they be recognised or valid mode of transfer of immovable property. The Courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognised as deeds of title, except to the limited extend of section 53-A of the T.P. Act. Such transactions cannot be relied upon or made the basis for mutations in municipal or revenue records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered assignment of lease. It is time that an end is put to the pernicious practice of SA/GPA/Will transactions known as GPA sales." "We have merely drawn attention to and reiterated the well-settled legal position that SA/GPA/Will transactions are not "transfers" or "sales" and that such transactions cannot be treated as completed transfers or conveyances. They can continue to be
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treated as existing agreements of sale. Nothing prevents the affected parties from getting registered deeds of conveyance to complete their title. The said " SA/GPA/Will transactions" may also be sued to obtain specific performance or to defend possession under Section 53-A of the T.P. Act. " "For example, a person may give a power of attorney to his spouse, son, daughter, brother, sister or a relative to manage his affairs or to execute a deed of conveyance."
2. Judgment rendered by the Hon'ble Supreme Court of India in Civil Appeal
No.1598 of 2023 between Shakeel Ahmed vs. Syed Akhlaq Hussain", wherein it is stated that:
"It was also submitted that the judgment in the case of Suraj Lamps and Industries Private Limited vs. State of Haryana and Another, which was of the year 2011, had prospective application and would not have any bearing on the title of the respondents which came to him under the customary documents executed in the year 2008 much prior to the judgment in the case of Suraj Lamps and Industries." "At best, on the basis of the registered agreement to sell, he could have claimed relief of specific performance in appropriate proceedings. In this regard, reference may be made to sections 17 and 49 of the Registration Act and Section 54 of the Transfer of Property Act, 1882." "The argument advanced on behalf of the respondent that the judgment in Suraj Lamps and Industries (supra) would be prospective is also misplaced. The requirement of compulsory registration and effect of non-registration emanates from the statutes, in particular the Registration Act and the Transfer of Property Act. The ration in Suraj Lamps and Industries (supra) only approves the provisions in the two enactments. Earlier
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judgments of this Court have taken the same view."
33.In the first decision it is categorically stated by the Hon'ble Apex Court that till the date of above said judgment, the AGPA's executed and transactions took place in respect of the same cannot be disturbed. However the facts and circumstances of above said second decision is not applicable to the case on hand for the reason that as admitted by PW1, the properties of the father of the plaintiff was already partitioned, accordingly under Ex.B1, the share of the property fallen to the share of the plaintiff was released in favour of the plaintiff by the defendants No.1,2 and their mother Rukum Bai. Out of the two properties owned by the father of the plaintiff one property reflected under Ex.B1 is released in favour of the plaintiff and other property i.e., suit schedule A and B properties herein in respect of which Ex.A1 partition deed was executed among the defendants No.1,2 and their mother. Thereafter, basing on Ex.A1, defendant No.1 sold his share i.e., suit schedule A property to the defendant No.3 under Ex.A2, and thereafter defendant No.3 sold the same to the defendant No.4 under Ex.A3 and defendant No.4 in turn sold the same to the defendant No.5 under Ex.A4. Therefore, it is clear to the Court from the admission of PW1 that the defendants No.1 and 2 are aware of the present suit and intentionally remained ex parte and PW1 is concerned about defendants No.1 and 2 who are his step brothers and suit schedule A property is in possession of defendant No.5 who purchased the same under Ex.A4 and the suit schedule B property is in possession of defendant No.2. The defendants No.1 and 2
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about 20 years back constructed houses in the shares allotted to them under Ex.A1 i.e., in suit schedule A and B properties. The defendant No.6 is supporting the case of the plaintiff. However, nothing in favour of plaintiff could be elicited during the course of cross-examination of DW1 and DW2.
34.The learned counsel for defendants No.3,4 and 5 argued that the plaintiff approached the Court by suppressing the material facts, with unclean hands, hence not disclosed the fact that the father of the plaintiff died intestate leaving behind two properties and one of the property is allotted towards the share of the plaintiff under
Ex.B1 Release Deed and other property has fallen to the share of defendants No.1,2 and their mother. Thus, already partition of joint family properties took place between plaintiff, defendants No.1,2 and Rukum Bai and the plaintiff is aware of
O.S.No.3925/2010 filed by the defendant No.4 herein and judgment and decree
obtained in favour of defendant No.4 as per Ex.B4 judgment and decree in
O.S.No.3925/2010 in respect of the suit schedule A property and the plaintiff would
have sought for partition of both the properties which his father owned as on the date of his death, but by leaving the property reflected under Ex.B1, by suppressing the material facts filed the present suit, it is settled law that the party who approach the
Court with unclean hands by suppressing the material facts is not entitled for the relief sought for. In this aspect the learned counsel for the defendants No.3 and 4 relied on following decisions:
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1. Decision reported in AIR 2006 SUPREME COURT 3530, 2006 (2) SCC 541 between Ram Saran Vs. IG of Police, CRPF and others, wherein it is held that:
"It was reiterated after referring to various earlier decisions of the Apex Court that fraud, misrepresentation and concealment of material fact vitiates all solemn acts In Rajabhai Abdul Rehman Munshi VsVasudev Dhanjibhai Mody, AIR 1964 SC 345, it was held that if there appears on the part of a person, who has approached the Court, any attempt to overreach or mislead the Court by false or untrue statements or by withholding true information which would have a bearing on the question of exercise of the discretion, the Court would be justified in refusing to exercise the discretion."
2. Decision reported in AIR 1982 SC 1559 between Roop Lal Sathi Vs.
Nachhattar Singh Gill," wherein it is held that:
"One, who does not come with candid facts and clean breast cannot hold a writ of the court with soiled hands. Suppression or concealment of ma-terial facts is impermissible to a litigant or even as a technique of advo-cacy. In such cases, the Court is duty bound to discharge rule nisi and such applicant is required to be dealt with for contempt of court for abus-ing the process of the court."
3. Decision reported in 1996 AIR SCW 3980 between Ashok Kapil Vs. Sana Ullah (dead) and Others, (1996) 6 SCC 342, wherein it is held that:
"The Supreme Court observed that the maxim Nullus commodum capere potest de injuria sua propria (No man can take advantage of his own wrong) is one the salient tenets of equity and that in the normal course a party cannot secure the assistance of a Court of Law for enjoying the fruit of his own wrong.
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The Petitioner/plaintiff has approached the Hon'ble Court with unclean hands and knowingly, willfully and deliberately suppressed the true facts and not made his sister as party to the above suit and filed present petition.
The petitioner/plaintiff has wasted the precious time of the court and clearly an abuse of the process of the court."
4. Decision reported in 2017 Lawsuit (Mad) 1419 on 24 March, 2017 between
A.E.Rathina Naicker vs V. Thirumalai, wherein it is held that:
"The plaintiff who approached the Court by Suppressing the Material Facts is not entitled for the relief."
5. Decision reported in AIR online 2021 SC 1141 between K. Jayaram and others vs. Bangalore Development Authority and others, wherein it is held that:
"In the instant case, since the appellants have not disclosed the filing of the suit and its dismissal and also the dismissal of the appeal against the judgment of the civil court, the appellants have to be non-suited on the ground of suppression of material facts. They have not come to the court with clean hands and they have also abused the process of law. Therefore, they are not entitled for the extraordinary, equitable and discretionary relief."
6. Decision reported in 1994 Lawsuit(SC) 507 between Kenchegowda (since deceased) by legal representatives Vs Siddegowda Alias Motegowda, wherein it is held that:
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"Suit for partition without including all the joint family properties was bad in law.
Without including all the joint family properties, the plaintiff has filed this suit which is not maintainable in view of Order 2 Rule 2 of CPC."
35.In this aspect the learned counsel for the defendant No.5 relied on following decisions:
1. Decision reported in AIR 2006 SC 713 between Harkirat Singh Vs Amarinder
Singh, wherein it is held that:
"Material facts" are primary or basic facts which must be pleaded by the plaintiff or by the defendant in support of the case set up by him either to prove his cause of action or defence. Since the object and purpose is to enable the opposite party to know the case he has to meet with, in the absence of pleading, a party cannot be allowed to lead evidence. Failure to state even a single material fact, hence, will entail dismissal of the suit or petition."
2. Decision reported in AIR online 2022 SC 384 between Premalata Alias Sunita
Vs Naseeb Bee and others, wherein it is held that:
"The Hon'ble Supreme Court applied the doctrine of approbate and reprobate holding that a litigant cannot be permitted to take two different/contradictory stands.
The Apex Court has repeatedly invoked and applied the rule that if a petitioner is found guilty of concealment of material facts or making an attempt to pollute the pure stream of justice, the court not only has the right but a duty to summarily deny relief to such
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person to prevent an abuse of the process law and reject the Petition on this ground alone without going to the merits of the case."
3. Decision reported in 2008 AIR SCW 6654 between K.D.Sharma Vs Steel
Authority of India Limited and others, wherein it is held that:
"If there is no candid disclosure of relevant and material facts or the plaintiff is quilty of misleading the court, his petition may be dismissed at the threshold without considering the merits of the claim.
The plaintiff cannot be allowed to play "hide and seek or to "pick and choose the facts he likes to disclose to suppress (keep back) or not to disclose (conceal) other facts.
4. Decision reported in 2010 LawSuit (Kar) 1383 between G.M. Mahendra Vs
G.M.Mohan, wherein it is held that:
"Suit for partition without including all the joint family properties was bad in law.
Without including all the joint family properties, the plaintiff has filed this suit which is not maintainable in view of Order 2 Rule 2 of CPC."
36.The facts and circumstances of above decisions are aptly applicable to the case on hand as plaintiff herein suppressed the fact of prior partition of joint family properties, release of share of plaintiff under Ex.B1 and regarding O.S.No.3925/2010 filed by defendant No.4 herein against defendants No.1, 2 and plaintiff herein in respect of the
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suit schedule A property and judgment and decree under Ex.B4 obtained by defendant
No.4 in her favour in said O.S.No.3925/2010 etc., as the share of the plaintiff was already allotted to the plaintiff under Ex.B1 Release Deed which was suppressed by the plaintiff, it is clear that the plaintiff is not entitled for right or share in the suit schedule
A and B properties. Hence, it is clear to the Court that the suit schedule A and B properties are not the joint family properties of the plaintiff, defendants No.1,2 and 6 as already the share of the plaintiff in respect of the joint family properties of his father were released in favour of the plaintiff under Ex.B1 release deed and the suit schedule
A and B properties are not available for partition. Accordingly the plaintiff is not entitled for the relief of partition and allotment of 1/4th share to the plaintiff, defendants
No.1, 2 and 6 each as prayed for. Issue No.1,2 and 3 are answered accordingly against the plaintiff.
37.ISSUE No.4: "Whether plaintiff is entitled for mesne profits of 1/3 rd share each in plaint 'A and B' schedule properties as prayed for?"
In view of findings given to issue No.1 to 3, this Court concluded that the plaintiff is not entitled for the relief of partition and allotment of 1/4th share over the suit schedule A and B properties. Therefore, the plaintiff is not entitled for the relief of mesne profits in respect of suit schedule A and B properties as prayed for. Issue answered accordingly against the plaintiff.
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38.ISSUE No.5: "Whether Court Fee paid by plaintiff is correct?"
The learned counsel for the defendants No.3,4 and 5 argued that as the plaintiff is not in possession of the suit schedule A and B properties, the Court Fee paid for the relief of partition under Section 34 (2) of TSCF and SV Act is not sufficient and for the relief of declaration sought by the plaintiff, the Court Fee paid is not sufficient, hence the suit is liable to be dismissed for payment of insufficient Court Fee. The learned counsel for the plaintiff argued that the Court Fee paid by the plaintiff is appropriate and in this aspect the learned counsel for the plaintiff relied on following decisions:
1. Decision reported in 2007 (3) A.P.L.J. 147 (HC) between Mohd. Ikramuddin vs.
Sangram Bosle and Others, wherein it is held that:
"All the suits for declaration with or without consequential relief are dealt with under Section 24 of the Court Fees Act. When the prayer is for declaration and possession of the property for which the declaration is sought, fee shall be computed on the market value of the movable property or three-fourths of the market value of the immovable property. Similarly when the prayer is for declaration and consequently injunction and the relief sought for is with reference to any immovable property, the Court fee shall be computed on one-half of the market value of the property or on Rs.300/- which ever is hight . Section 37 of the Court Fees Act deals with suits for cancellation of decree for money or any other property having a money value or other document which purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest in money, movable or immovable property, then fee shall be computed on the value of the subject matter of the suit."
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"No doubt, the suit is one for declaration of title as well as for possession of the plaint schedule property and the prayer also includes consequential declaration that the sale deed registered by the 2nd respondent in favour of the 1st respondent is not binding on the petitioner-plaintiff. I find force in the contention Sri Narayana Rao, learned counsel for the petitioner, that as the plaintiff is not a party to the registered sale deed, he need not ask for cancellation of it, and the plaintiff is perfectly justified in asking for consequential relief of declaration that the sale deed is not binding on him, and to be more on safe side, he sought for the relief "for declaration that the sale deed is null and void" and paid the Court Fees under the provisions of Section 24 (d) of the Act. It does not mean that the suit falls under Section 37, but not under Section 24 (d) of the Court Fees Act. " "In the other words "even if there is a prayer for a declaration or cancellation, it could as well be ignored and court fees need not be paid thereon." "Even according to the plaintiff and the plaint allegations, when the plaintiff is not a party to the sale deed, in fact, he need not ask for cancellation of the sale deed as the cancellation implies that the person suing should be an actual or constructive party to a valid or operative document and a third party like the plaintiff/petitioner is not bound by a document of the description in question and is not obliged to sue for cancellation."
2. Decision reported in (2010) 12 Supreme Court cases 112 between Suhrid Singh alias Sardool Singh vs. Randhir Singh and Others", wherein it is held that:
"Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or nonest, or illegal or that it is not binding on him. The difference between a prayer for cancellation and
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declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relation to A and B, two brothers. A executes a sale deed in favour of C. Subsequently A wants to avoid the sale. A has to sue for cancellation of the deed. On the other hand, if B, who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by A is invalid/void and nonest/illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non binding. But the form is different and court fee is also different. If A, the executant of the deed, seeks cancellation of the deed, he has to pay ad valorem Court fee on the consideration stated in the sale deed. If B, who is a non-executant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of Rs.19.50 under Article 17
(iii) of the Second Schedule of the Act. But if B, a non-executant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad valorem courtfee as provided under Section 7 (iv)(c) of the Act." "Section 7 (iv) (c) provides that in suits for a declaratory decree with consequential relief, the Court fee shall be computed according to the amount at which the relief sought is valued in the plaint. The proviso thereto makes it clear that where the suit for declaratory decree with consequential relief is with reference to any property, such valuation shall not be less than the value of the property calculated in the manner provided for by clause
(v) of Section 7."
39.As an answer to the plaintiff, the learned counsel for the defendants No.3 and 4 and the learned counsel for the defendant No.5 relied on the following decision:
1. Decision reported in 1995 AIR SCW 118 between Ram Narain Prasad Vs Atul
Chander Mitra, wherein it is held that:
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"Appellants should pay ad-valorem court fee on the market value of the suit property."
2. Decision reported in 2016 (3) ALD 653 Mohan Singh and others Vs
K.Suryanarayana and others, wherein it is held that:
"Plaintiff is excluded from the joint family. Plaintiff held to have undervalued suit directed to pay one-half of market value of suit property under Sec 24(b) and not under section 24 (d) of APCF & AV Act."
3. Decision reported in 2007 (5) ALD 622 T.Bhoopal Reddy and another Vs Smt.
K.R.Laxmi Bai (died) and others, wherein it is held that:
"That the suit of partition is not maintainable and the plaintiffs were never in joint possession and enjoyment of the properties. The suit valuation made and court fee paid is incorrect.
In view of the above submission, the defendant Nos.3 & 4 prays the Hon'ble Court to dismiss the suit with exemplary costs in the interest of justice."
40.The learned counsel for the defendant No.5 relied on following decisions:
1. Decision reported in 2007(6) ALT 614 between S. Gaffar Saheb Vs S. Hussain
Bee @ S. Mustari and Ors., wherein it is held that:
"When the plaintiff was not in joint possession at any time, then he has to pay the Court Fee under section 34(1) but not under 34(2) of the APCF and SV Act.
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When he is in joint possession of the suit schedule property then question of separation possession does not arise. As per the Release Deed Ex.B1 plaintiff is excluded from the joint family and plaintiff with his family is living in H.No. 16-1-194 for past 43 years."
2. Decision reported in 2007 (5) ALD 565 between Prathibha and another Vs
Vedvathi and another, wherein it is held that:
"Plaintiff could not establish joint possession of suit schedule property. Whatsoever it may be, there was a division of family property and one property fell to the share of plaintiff and came to conclusion that the plaintiffs are liable to pay the court fee under Section 34(1) of the Act."
41.The facts and circumstances of above decisions reveals that as far as the relief of declaration of registered documents as null and void sought by the plaintiff, the Court
Fee paid is sufficient, but in respect of the relief of partition, the plaintiff/PW1 himself admitted that the defendant No.5 is in possession of suit schedule A property and defendant No.2 is in possession of suit schedule B property which makes it clear that the plaintiff is not in peaceful possession of the suit schedule A and B properties, therefore, the Court Fee paid by the plaintiff for the relief of partition under Section 34 (2) of TSCF and SV Act i.e, Rs.200/- is not sufficient Court Fee. The plaintiff ought to have paid Court Fee under Section 34 (1) of TSCF and SV Act as the plaintiff is not in physical possession of the suit schedule A and B properties. Issue answered accordingly.
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42.For the sake of convenience and in order to avoid repetition issue No.6, 7, 8 and 9 are answered together.
ISSUE No.6: "Whether plaintiff is entitled to declare partition deed vide document
No.359/1998 dated 04.03.1998 as null and void and not binding on the
plaintiff?"
ISSUE No.7: " Whether plaintiff is entitled to declare registered Agreement of Sale
cum GPA vide document No.2803/2009 dated 26.06.2009 as null and void and not
binding on the plaintiff?"
ISSUE No.8: "Whether plaintiff is entitled to declare the sale deed vide document
No.4605/2010 as null and void and not binding on the plaintiff?"
ISSUE No.9: "Whether plaintiff is entitled to declare document No.4657/2013 dated 11.10.2013 as null and void and not binding on the plaintiff?"
It is argued by the learned counsel for the plaintiff that without the partition of suit schedule A and B properties, without the knowledge and consent of the plaintiff and defendant No.6, the defendants No.1 and 2 along with Rukum Bai has no right to execute partition deed under Ex.A1 in respect of the suit schedule A and B properties and defendant No.1 has no right to execute Ex.A2 in favour of the defendant No.3 in respect of the suit schedule A property and defendant No.3 has no right to execute
Ex.A3 in favour of the defendant No.4, accordingly the defendant No.4 has no right to execute Ex.A4 in favour of defendant No.5 in respect of the suit schedule A property.
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Therefore, the partition deed executed between defendants No.1,2 and Rukum Bai under Ex.A1 vide document No.350/1998 dated 04.03.1998, the AGPA with possession vide document No.2803/2009 dated 26.06.2009 executed by the defendant No.1 in favour of the defendant No.3, the sale deed vide document No.4605/2010 dated 27.10.2010 executed by the defendant No.3 in favour of defendant No.4 and the sale deed vide document No.4657/2013 dated 11.10.2013 executed by the defendant No.4 in favour of defendant No.5 are liable to be declared as null and void and not binding on the plaintiff and in this aspect the learned counsel for the plaintiff relied on following decisions:
1. Decision reported in (2009) 7 Supreme Court Cases 444 between Ramdas vs.
Sitabai and Others," wherein it is held that:
"It is settled law under the Transfer of Property Act, 1882, that a purchaser cannot have a better title than what his vender had. The possession which is claimed by the defendant 3 Ramdas (the appellant herein) in respect of the entire land bearing Gat N.19 area admeasuring 2.56 H of Mouza Padoli was also illegal and without proper sanction of law. So long as the property is joint and not partitioned, defendant 3 Ramdas (the appellant herein) is not entitled to get possession of the said land. Even otherwise, the appellant herein having purchased the land from defendant 1 Sudam could be entitled to be declared at the most to the extent of half-share of the said piece of land having stepped into the shoes of his vendor and could not have asked for and claimed ownership and possession over the entire land of Gat No.19 admeasuring 2.56 H." "Without there being any physical formal partition of an undivided landed property, a co-sharer cannot put a vendee in possession although such a co-sharer may have a right to
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transfer his undivided share. Reliance in this regard may be placed to a decision of this Court in M.V.S. Manikayala Rao vs. M. Narasimhaswami wherein this Court stated as follows:
"Now, it is well settled that the purchaser of a coparcener's undivided interest in joint family property is not entitled to possession of what he has purchased. His only right is to sue for partition of the property and ask for allotment to him of that which on partition might be found to fall to the share of the coparcener whose share he had purchased." "It may be mentioned herein that the aforesaid findings and the conclusions were recorded by the Supreme Court by placing reliance upon an earlier judgment of this Court in Sidheshwar Mukherjee vs. Bhubneshwar Prasad Narain Singh, wherein this Court held as under:
"All that [Vendee] purchased at the execution sale was the undivided interest of the coparceners in the joint property. He did not acquire title to any defined share in the property and was not entitled to joint possession from the date of his purchase. He could work out his rights only by a suit for partition and his right to possession would date from the period when a specific allotment was made in his favour." "In view of the aforesaid position there could be no dispute with regard to the fact that an undivided share of co-sharer may be a subject matter of sale, but possession cannot be handed over to the vendee unless the property is partitioned by metes and bounds amicably and through mutual settlement or by a decree of the Court."
2. Decision reported in (1995) 4 Supreme Court 496 between Vidya Devi alias
Vidyavati (dead) by Lrs. vs. PRem Prakash and Others," wherein it is held that:
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"Normally, where the property is joint, co-sharers are the representatives of each other. The co-sharer who might be in possession of the joint property shall be deemed to be in possession on behalf of all the co-shares. As such, it would be difficult to raise the plea of adverse possession by one co-sharer against the other. But if the co-sharer or the joint owner had been professing hostile title as against other co-sharers openly and to the knowledge of other joint owners, he can, provided the hostile title or possession has continued uninterruptedly for the whole period prescribed for recovery of possession, legitimately acquire title by adverse possession and can plead such title in defence to the claim for partition."
43.The facts and circumstances of above said decisions are not applicable to the case on hand. In view of discussion made supra and further as it is admitted by the PW1 that
Ex.B1 release deed was executed in favour of the plaintiff in respect of the property reflected therein by the defendants No.1, 2 and Rukum Bai towards the share of the plaintiff. It is crystal clear to the Court that the plaintiff by suppressing the Ex.B1
Release Deed through which the share of the plaintiff was allotted and released in favour of the plaintiff, the plaintiff filed the present suit by suppressing the fact of prior partition of joint family properties of the plaintiff, defendants No.1,2 and 6. Therefore, the plaintiff has no right to question regarding the execution of Exs.A1, A2, A3 and A4 and plaintiff has no right and share over the suit schedule A and B properties. As the plaintiff is residing in the property allotted towards his share and released in favour of the plaintiff under Ex.B1 which is exactly opposite to the suit schedule A and B properties and as admitted by plaintiff/PW1 that he is aware of Exs.A1 to A4 since long
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time and in front of plaintiff, defendants No.1 and 2 constructed houses in the premises allotted towards their share under Ex.A1 and that the defendant No.1 sold the suit schedule A property to the defendant No.3, defendant No.3 sold to defendant No.4 and defendant No.4 sold to defendant No.5 and that tenant of defendant No.5 is residing in the suit schedule A property at present which reveals the conduct of the plaintiff that intentionally by suppressing the partition of joint family properties among the plaintiff, defendants No.1 and 2, Rukum Bai, the plaintiff filed the present suit seeking the relief of partition and declaration of Exs.A1 to A4 as null and void. The defendant No.6 is supporting the case of the plaintiff. However, nothing in favour of plaintiff could be elicited during the course of cross-examination of DW1 and DW2.
44.It is argued by the learned counsel for the defendants No.3 to 5 that as defendant
No.4 filed O.S.No.3925/2010 against the defendants No.1,2 and plaintiff herein as defendants No.1 to 3 therein seeking the relief of perpetual injunction in respect of the suit schedule A property and the said suit was decreed through judgment dated 09.04.2012. Ex.B4 is the judgment and decree in O.S.No.3925/2010 dated 09.04.2012 the present suit is filed by the plaintiff is barred by resjudicata. In this aspect the learned counsel for the plaintiff relied on a decision reported in (2021) 9 Supreme
Court Cases 99 between Srihari Hanumandas Totala vs. Hemant Vithal Kamat and
Others," wherein it is held that:
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"Section 11 CPC enunciates the rule of resjudicata: a court shall not try any suit or issue in which the matter that is directly in issue has been directly or indirectly heard and decided in a "former suit". Therefore, for the purpose of adjudicating on the issue of rejudicata it is necessary that the same issue (that is raised in the suit) has been adjudicated in the former suit. It is necessary that we refer to the exercise taken up by this Court while adjudicating on resjudicata, before referring to resjudicata as a ground for rejection of the plaint under Order 7 Rule 11 R.C. Lahoti, J. (as the learned chief justice then was), speaking for a two-judge Bench in V. Rajeshwari vs. T.C. Saravanabava discussed the plea of resjudicata and the particulars that would be required to prove the plea. The Court held that it is necessary to refer to the copies of the pleadings, issues and the judgments of the "former suit" while adjudicating on the plea of resjudicata:
"The rule of resjudicata does not strike at the root of the jurisdiction of the Court trying the subsequent suit. It is a rule of estoppel by judgment based on the public policy that there should be a finality to litigation and no one should be vexed twice for the same cause." "Not only the plea has to be taken, it has to be substantiated by producing the copies of the pleadings, issues and judgments in the previous case. May be, in a given case only copy of judgment in previous suit is filed in proof of plea of resjudicata and the judgment contains exhaustive or in requisite details the statement of pleadings and the issues which may be taken as enough proof. But as pointed out in Mohd. Salie Labbai v. Mohd. Hanifa the basic method to decide the question of resjudicata is first to determine the case of the parties as put forward in their respective pleadings of their previous suit and then to find out as to what had been decided by the judgment which operates as resjudicata. It is risky to speculate about the pleadings merely by a summary of recitals of the allegations made in the pleadings mentioned in the judgment. The constitution Bench in Gurbux Singh v. Bhoorala placing on a par the plea of
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resjudicata and the plea of estoppel under Order 2 Rule 2 of the Code of Civil Procedure, held that proof of the plaint in the previous suit which is set to create the bar, ought to be brought on record. The plea is basically founded on the identity of the cause of action in the two suits and therefore, it is necessary for the defence which raises the bar to establish the cause of action in the previous suit. Such pleas cannot be left to be determined by mere speculation or inferring by a process of deduction what were the facts stated in the previous pleadings. Their Lordships of the Privy Council in Kali Krishna Tagore v. Secy. of State for India in Council pointed out that the plea of resjudicata cannot be determined without ascertaining what were the matters in issue in the previous suit and what was heard and decided. Needless to say, these can be found out only by looking int the pleadings, the issues and judgment in the previous suit."
45.The facts and circumstances of above said decision though not applicable to the case on hand. The arguments of defendants No.3 to 5 that the present suit is barred by resjudicata has no valid force for the reason that Ex.B4 reveals that the defendant No.4 is in possession of the suit schedule A property and the said suit vide O.S.No.3925/2010 was filed by the defendant
No.4 as the plaintiff therein seeking the relief of perpetual injunction against the defendants
No.1, 2 and plaintiff herein in respect of the suit schedule A property, but it is not a suit for declaration. Therefore, the present suit filed for relief of partition and declaration of Exs.A1 to
A4 cannot be stated to have been barred by resjudicata . However, the plaintiff herein failed to establish that the suit schedule A and B properties are the joint family properties of plaintiff, defendants No.1, 2 and defendant No.6 and plaintiff approached the Court by suppressing the material facts. Therefore, the plaintiff is not entitled for the relief of partition of the suit
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schedule A and B properties and also for declaration of Exs.A1 to A4 as null and void as the plaintiff failed to establish that the plaintiff has right and share over the suit schedule A and B properties. Accordingly Issue No.6,7,8 and 9 are answered against the plaintiff.
46.ADDITIONAL ISSUE No.1: "Whether the suit is bad for non-joinder of necessary party?"
The defendant No.6 is supporting the case of the plaintiff. However, nothing in favour of plaintiff could be elicited during the course of cross-examination of DW1 and
DW2. Initially in the written statement, the defendants No.3 to 5 took objection that the sister of the plaintiff Gajula Rani i.e., defendant No.6 herein is not made party to the present suit, hence the suit is bad for non-joinder of necessary party i.e, defendant No.6 herein. Subsequently the plaintiff filed implead petition to implead defendant No.6 and said I.A was dismissed by the Court. Aggrieved by the said orders of this Court, the plaintiff preferred CRP.No.2131/2023 and the Hon'ble High Court allowed the said
CRP through its order dated 05.06.2024. Accordingly the step sister of the plaintiff i.e.,
Gajula Rani is impleaded as defendant No.6 in the present suit. Therefore, the present issue has become redundant.
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47.ADDITIONAL ISSUE No.2: "Whether the suit is barred by limitation?"
It is argued by the learned counsel for the defendants No.3 to 5 that the present suit is filed in the year 2018 by creating cause of action. Though the plaintiff has no right over the suit schedule A and B properties and is aware of Exs.A1 to A4 by suppressing the facts in collusion with defendants No.1 and 2 only to harass defendants
No.3 to 5. The present suit is filed by the plaintiff as plaintiff, defendants No.1 and 2 could not succeed against the defendant No.4 in O.S.No.3925/2010. By developing grudge against the defendant No.4 and also defendant No.5 who purchased the suit schedule A property from defendant No.4 under Ex.A4, the present suit is filed after 20 years of execution of Ex.A1 and 22 years of partition of the joint family properties of the plaintiff and execution of Ex.B1 release deed in favour of the plaintiff intentionally by suppressing the material fact, thus, the suit is barred by limitation and in this aspect the learned counsel for the defendants No.3 and 4 relied on the following decisions:
1. Decision reported in 2019 SCC OnLine Del 9472, decided on 29-07-2019 between Rajinder Kumar Kapur v. Madan Mohan Lal Kapur, wherein it is held that:
"Lack of Cause of Action and for being barred by Limitation."
2. Decision reported in AIR 2020 SC 3310 between Dahiben Vs Arvindbhal
Kalyanji Bhanusali (Gajra), wherein it is held that:
"Suit barred by limitation and that no cause of action was made out in the plaint."
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48.In this aspect the learned counsel for the defendant No.5 relied on a decision reported in AIR 2021 SCC OnLine Mad 677 between Tmt.Karuppathal and another
Vs. P.Ponnusamy (deceased) and others, wherein it is held that:
"By filing the partition suit, the plaintiff disown his own document namely the Release Deed Ex.B-1 duly registered and presumed to be an official act performed regularly. If the terms of contract reduced into writing and duly registered, the burden is on the plaintiffs to adduce evidence sufficient to exclude the written evidence.
The suit has been filed more than 22 years after the registration of release deed -the suit is bad for lack of a cause of action and barred by limitation.
49. The facts and circumstances of above decisions are applicable to the case on hand, as during the course of cross-examination, plaintiff/PW1 categorically admitted that towards the share of the plaintiff, Ex.B1 was executed by allotting the property reflected under Ex.B1 in favour of the plaintiff and in respect of the property reflected under
Ex.A1, the defendants No.1, 2 and Rukum Bai partitioned under Ex.A1 and thereafter defendants No.1 and 2 constructed the houses in the shares allotted to them under
Ex.A1 i.e., suit schedule A property and suit schedule B property respectively.
Thereafter the defendant No.1 sold the suit schedule property to the defendant No.3 under Ex.A2, and defendant No.3 sold to defendant No.4 under Ex.A3 and thereafter defendant No.4 sold under Ex.A4 to defendant No.5. The 20 years back when
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defendants No.1 and 2 were constructed houses in the suit schedule A and B property allotted to them, the plaintiff raised objection and requested the defendants No.1, 2 and
Rukum Bai to give him his share and thereafter the plaintiff has not taken any steps against the Defendants No.1,2 and Rukum Bai to partition and allot the share of the plaintiff in suit schedule A and B property which clearly reveals that since 1998 the plaintiff is aware that under Ex.A1 suit schedule A and B properties were partitioned and defendants No.1 and 2 constructed their houses in the share allotted to them and in respect of Exs.A2 to A4 and the present suit is filed in the year 2018 i.e., after lapse of 20 years from the execution of Ex.A1. Further during the course of cross-examination
PW1 categorically admitted that he received summons in O.S.No.3925/2010 filed by the defendant No.4 against the defendants No.1,2 and plaintiff herein which reveals that the plaintiff is aware of Exs.A1 to A4 and regarding the possession of suit schedule A property by the subsequent purchasers from the defendant No.1 and that the defendant
No.2 in is possession of the suit schedule B property and the tenant of defendant No.5 is in possession of the suit schedule A property as on the date of filing of the suit and created cause of action to file the suit which is barred by limitation. The plaintiff who is aware of execution of Ex.A1 in the year 1998 would have questioned the execution of
Ex.A1 and the plaintiff who has not questioned knowingly the execution of Exs.A1 to
A4 within stipulated time of limitation has not right to question the validity of the same after 20 years of execution of Ex.A1. The defendant No.6 is supporting the case of the plaintiff. However, nothing in favour of plaintiff could be elicited during the course of
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cross-examination of DW1 and DW2. Therefore, this Court in view of discussion made supra can conclude that the suit is barred by limitation. Issue answered accordingly against the plaintiff.
50.ISSUE No.10: "If so, to what relief?
In view of findings given to issue No.1 to 9 and additional issue No.1 and 2, the plaintiff is not entitled for the relief of partition and allotment of 1/4th share over the suit schedule A and B properties. The plaintiff is not entitled for the relief of declaration of partition deed vide document No.359/1998 dated 04.03.1998, Agreement of sale cum
GPA (with possession) vide document No.2803/2009 dated 26.06.2009, sale deed vide document No.4605/2010 dated 27.10.2010 and sale deed vide document No.4657/2013
dated 11.10.2013 as null and void and not binding on the plaintiff. The plaintiff is not
entitled for the relief of perpetual injunction.
51.In the result, the suit is dismissed. However, no costs.
Dictated to the Stenographer and transcribed by her, corrected and pronounced
by me in the open court, on this the02ndday of April, 2025.
XVII ADDL. SENIOR CIVIL JUDGE,
CITY CIVIL COURT, HYDERABAD.
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APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PLAINTIFF:FOR DEFENDANTS:
PW1: Sri Bandaru Krishna DW1: Sri M. Narsing Rao
DW2: Sri M. Kiran Kumar
DOCUMENTS MARKED
FOR PLAINTIFF:
Ex.A1:Certified copy of partition deed vide document No.359/1998 dated 04.03.1998.
Ex.A2:Certified copy of AGPA vide document No.2803/2009 dated 26.06.2009.
Ex.A3:Certified copy of sale deed vide document No.4605/2010 dated 27.10.2010.
Ex.A4:Certified copy of Sale deed vide document No.4657/2013 dated 11.10.2013.
Ex.A5:Encumbrance Certificate dated 16.10.2018.
Ex.A6:Market Value Certificate dated 16.10.2018.
Ex.A7:Original Death Certificate of Rukumbai.
Ex.A8:Original Death Certificate of B. Rajaiah.
FOR DEFENDANTS:
Ex.B1:Certified copy of Release Deed vide document No. 290/1996 dated 19.02.1996.
Ex.B2:Photographs (3 in No.) with C.D.
Ex.B3:Encumbrance Certificate dated 19.12.2018.
Ex.B4:Certified copy of judgment and decree in O.S.No.3925/2010 dated 09.04.2012.
XVII ADDL. SENIOR CIVIL JUDGE,
CITY CIVIL COURT, HYDERABAD.