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IN THE COURT OF CIVIL JUDGE (SENIOR DIVISION) AT KANDUKUR
Present : Smt A. Shobha Rani,
Civil Judge (Senior Division), Kandukur
Monday, the 21st day of April, 2025
Appeal Suit No.14/2019
1.1.Nalluri Dhanamma, W/o. Mallikarjuna, aged 46 years, Housewife.Nalluri Dhanamma, W/o. Mallikarjuna, aged 46 years, Housewife.
2.2.Tanikonda Mallikarjuna, S/o. Narasimham, 48 years, Agriculturist.Tanikonda Mallikarjuna, S/o. Narasimham, 48 years, Agriculturist. Both are Hindus, R/o. Mullamurivaripalem, H/o. Cherukuru Village,Both are Hindus, R/o. Mullamurivaripalem, H/o. Cherukuru Village, Ponnalur Revenue Mandal, Prakasam District.Ponnalur Revenue Mandal, Prakasam District.
….. Appellants/Plaintiffs….. Appellants/Plaintiffs
V/sV/s
1.1.Tanikonda Malakondaiah, S/o. Narayana, aged 63 years.Tanikonda Malakondaiah, S/o. Narayana, aged 63 years.
2.2.Tanikonda Subbarao, S/o. Narayana, aged 58 years.Tanikonda Subbarao, S/o. Narayana, aged 58 years.
3.3.Tanikonda Sundararao, S/o. Narayana, aged 48 years.Tanikonda Sundararao, S/o. Narayana, aged 48 years. All are Hindus, R/o. Mullamurivaripalem, h/o. Cherukuru Village,All are Hindus, R/o. Mullamurivaripalem, h/o. Cherukuru Village, Ponnalur Revenue Mandal, Prakasam District.Ponnalur Revenue Mandal, Prakasam District.
….. Respondents/Defendants….. Respondents/Defendants
This Appeal is preferred against the Decree and Judgment passed inThis Appeal is preferred against the Decree and Judgment passed in
O.S.No.219/2010 on the file of Principal Junior Civil Judge, KandukurO.S.No.219/2010 on the file of Principal Junior Civil Judge, Kandukur
dated 13.06.2018dated 13.06.2018
Original Suit No.219/2010 Original Suit No.219/2010
1.1.Nalluri Dhanamma.Nalluri Dhanamma.
2. Tanikonda Mallikarjuna.2.Tanikonda Mallikarjuna.….. Plaintiffs….. Plaintiffs
V/sV/s
1.1.Tanikonda Malakondaiah.Tanikonda Malakondaiah.
2.2.Tanikonda Subbarao.Tanikonda Subbarao.
3.3.Tanikonda Sundararao.Tanikonda Sundararao.….. Defendants….. Defendants
This Appeal is coming on 18.03.2025 before me for final hearing in theThis Appeal is coming on 18.03.2025 before me for final hearing in the presence of Sri M. Jagadeesh, presence of Sri M. Jagadeesh, Advocate for the appellants and of Advocate for the appellants and of Sri T. Sri T. Gopala Krishna, Advocate for respondents; and after hearing argumentsGopala Krishna, Advocate for respondents; and after hearing arguments and on perusal of entire material available on record and having consideredand on perusal of entire material available on record and having considered the material on record, till this day this court delivered the following:the material on record, till this day this court delivered the following:
// J U D G M E N T // // J U D G M E N T //
This is an appeal preferred by the appellants/plaintiffs under Section 96 of Civil Procedure Code to set aside the decree and Judgment in
O.S.No.219/2010 dated 13.06.2018 on the file of Principal Junior Civil
Judge, Kandukur.
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2.2.The parties are referred to hereunder as Plaintiffs and Defendants asThe parties are referred to hereunder as Plaintiffs and Defendants as arrayed before the Trial court for the sake of convenience.arrayed before the Trial court for the sake of convenience.
3.3.The brief facts of the plaint filed by the plaintiffs are that, the plaintThe brief facts of the plaint filed by the plaintiffs are that, the plaint schedule property is the ancestral property of their father Tanikondaschedule property is the ancestral property of their father Tanikonda
Narasimham and their father was in possession and enjoyment of the same.Narasimham and their father was in possession and enjoyment of the same.
The 1stThe 1st plaintiff purchased the plaint schedule property from her father for a plaintiff purchased the plaint schedule property from her father for a sum of Rs.8,000/- vide registered sale deed dated 15.12.1999 and she wassum of Rs.8,000/- vide registered sale deed dated 15.12.1999 and she was put in possession of the plaint schedule property. Subsequently the 1stput in possession of the plaint schedule property. Subsequently the 1st plaintiff constructed a thatched house in the plaint schedule property andplaintiff constructed a thatched house in the plaint schedule property and has been living in the said house. The 1sthas been living in the said house. The 1st plaintiff permitted her father to plaintiff permitted her father to live in the plaint schedule property. The thatched house constructed in thelive in the plaint schedule property. The thatched house constructed in the plaint schedule property has been noted in the name of their father in theplaint schedule property has been noted in the name of their father in the
Panchyat records as he was residing in the said house. The 1stPanchyat records as he was residing in the said house. The 1st plaintiff has plaintiff has been paying house tax for the plaint schedule property to the Panchayatbeen paying house tax for the plaint schedule property to the Panchayat
Authorities. The 2ndAuthorities. The 2nd plaintiff is the brother of the 1 plaintiff is the brother of the 1stst plaintiff and has been plaintiff and has been working as mason at Hyderabad, periodically the 2ndworking as mason at Hyderabad, periodically the 2nd plaintiff visits the suit plaintiff visits the suit village. Their father passed away and their mother predeceased theirvillage. Their father passed away and their mother predeceased their father. The 1stfather. The 1st plaintiff has been tethering cattle in the plaint schedule plaintiff has been tethering cattle in the plaint schedule property. The 2ndproperty. The 2nd plaintiff requested the 1 plaintiff requested the 1stst plaintiff to permit him to reside plaintiff to permit him to reside in the plaint schedule property whenever he visits. As such both of themin the plaint schedule property whenever he visits. As such both of them are in possession and enjoyment of the plaint schedule property. Thereforeare in possession and enjoyment of the plaint schedule property. Therefore they filed the suit for Permanent Injunction. Subsequently the defendantsthey filed the suit for Permanent Injunction. Subsequently the defendants have been living out in the village that they would not allow the plaintiffs tohave been living out in the village that they would not allow the plaintiffs to 3 enjoy the plaint schedule property for which they are not entitled. Theenjoy the plaint schedule property for which they are not entitled. The defendants contended in the written statement that the plaint scheduledefendants contended in the written statement that the plaint schedule property is the joint family property of the father of the plaintiffs and theproperty is the joint family property of the father of the plaintiffs and the defendants and it is not the exclusive property of their father. Thereforedefendants and it is not the exclusive property of their father. Therefore they amend the plaint for declaration of their title of the property. Hencethey amend the plaint for declaration of their title of the property. Hence this suit.this suit.
4.4.The brief averments of the written statement filed by the 1stThe brief averments of the written statement filed by the 1st defendant adopted by defendants 2 & 3 are that he denied the most of thedefendant adopted by defendants 2 & 3 are that he denied the most of the averments of the plaint except those are specifically admitted and furtheraverments of the plaint except those are specifically admitted and further submits that in fact Tanikonda Gurappa, Tanikonda Peraiah andsubmits that in fact Tanikonda Gurappa, Tanikonda Peraiah and
Tanikonda Venkata Subbaiah are brothers and residents ofTanikonda Venkata Subbaiah are brothers and residents of
Mulamurivaripalem, H/o. Cherukuru Village. Gurappa got one son namelyMulamurivaripalem, H/o. Cherukuru Village. Gurappa got one son namely
Narayana. The Narayana got three sons and one daughter i.e., defendants 1Narayana. The Narayana got three sons and one daughter i.e., defendants 1 to 3 and Varamma. The above said Gurappa and his son Narayana died longto 3 and Varamma. The above said Gurappa and his son Narayana died long back. Tanikonda Peraiah has got two sons namely Narasimham &back. Tanikonda Peraiah has got two sons namely Narasimham &
Malakondaiah. The said Narasimham got two sons and three daughtersMalakondaiah. The said Narasimham got two sons and three daughters namely Malakondaiah, Mallikarjuna, the 2ndnamely Malakondaiah, Mallikarjuna, the 2nd plaintiff, Lakshamma, plaintiff, Lakshamma,
Jayamma and Dhanamma, the 1stJayamma and Dhanamma, the 1st plaintiff. The 1 plaintiff. The 1stst plaintiff was given in the plaintiff was given in the marriage to Nalluri Malikjarjuna. The Peraiah and Narasimham are alsomarriage to Nalluri Malikjarjuna. The Peraiah and Narasimham are also died long back. Thanikonda Venkata Subbaiah got one son namelydied long back. Thanikonda Venkata Subbaiah got one son namely
Subbaiah. The said subbaiah has got three daughters and one son namelySubbaiah. The said subbaiah has got three daughters and one son namely
Varamma, Nagendramma, Sujatha and Malikarjuna. The said VenkataVaramma, Nagendramma, Sujatha and Malikarjuna. The said Venkata
Subbaiah is no more. Tanikonda Gurrappa, Peraiah and Venkata SubbaiahSubbaiah is no more. Tanikonda Gurrappa, Peraiah and Venkata Subbaiah 4 got house which contains three thresh holds under the same roof and sitesgot house which contains three thresh holds under the same roof and sites apart from landed properties. They divided their house and sites amongapart from landed properties. They divided their house and sites among them during their lifetime. In the said partition the elder brother Gurappathem during their lifetime. In the said partition the elder brother Gurappa got Southern side part of the said house, Perraiah got middle part of thegot Southern side part of the said house, Perraiah got middle part of the said house and Venkata Subbaiah got Northern side part of the said house.said house and Venkata Subbaiah got Northern side part of the said house.
After the death of Gurappa his Southern side part of the house devolvedAfter the death of Gurappa his Southern side part of the house devolved upon his son Narayana and after him his sons the defendants became theupon his son Narayana and after him his sons the defendants became the owners and they have been in possession and enjoyment of the same. Afterowners and they have been in possession and enjoyment of the same. After the death of Peraiah his middle part of the said house devolved upon histhe death of Peraiah his middle part of the said house devolved upon his sons Narasimham and Malakondaiah. The said house was divided insons Narasimham and Malakondaiah. The said house was divided in between Narasimham and Malakondaiah. After the death of Narasimhambetween Narasimham and Malakondaiah. After the death of Narasimham his portion of the house devolved upon his sons Malakondaiah andhis portion of the house devolved upon his sons Malakondaiah and
Mallikarjuna, the 2ndMallikarjuna, the 2nd plaintiff and as such Malakondaiah son Peraiah and plaintiff and as such Malakondaiah son Peraiah and
Malakondaiah, Mallikarjuna, the 2ndMalakondaiah, Mallikarjuna, the 2nd plaintiff sons of Late Narasimham plaintiff sons of Late Narasimham became in possession and enjoyment of the middle portion of the house.became in possession and enjoyment of the middle portion of the house.
After the death of Venkata Subaiah Northern portion devolved upon hisAfter the death of Venkata Subaiah Northern portion devolved upon his heirs. As such Gurappa, Peraiah and Venkata Subbaiah got equallyheirs. As such Gurappa, Peraiah and Venkata Subbaiah got equally partitioned their house and site. Apart from the above referred house andpartitioned their house and site. Apart from the above referred house and site they also got house plots which is located to the North East of the abovesite they also got house plots which is located to the North East of the above referred house. That plot also equally partitioned among the brother.referred house. That plot also equally partitioned among the brother.
Subsequently Narasimham and Malakondaiah sons of Peraiah jointlySubsequently Narasimham and Malakondaiah sons of Peraiah jointly purchased another house in the same village. At the time of purchase therepurchased another house in the same village. At the time of purchase there is a thatched house in the said site. The boundaries for the said site areis a thatched house in the said site. The boundaries for the said site are
East : Bazaar, South : Bazaar, West : Nalluri Subbarao to some extentEast : Bazaar, South : Bazaar, West : Nalluri Subbarao to some extent 5
Kotaiah to some extent, North : Vacant site of Nalluri Subba Rao andKotaiah to some extent, North : Vacant site of Nalluri Subba Rao and
Bopparaju Tirupalu. It is an extent of Ac.0.06 cents. After purchasing theBopparaju Tirupalu. It is an extent of Ac.0.06 cents. After purchasing the thatched house and site due to formation of cement roads on the East andthatched house and site due to formation of cement roads on the East and
South and also due to construction of Pacca houses by the surroundingSouth and also due to construction of Pacca houses by the surrounding owners this particular site became low level. After purchasing the house andowners this particular site became low level. After purchasing the house and site Narasimham son of Peraiah had been residing in it and his brothersite Narasimham son of Peraiah had been residing in it and his brother
Mala Kondaiah has been residing in the middle portion the house. ThereforeMala Kondaiah has been residing in the middle portion the house. Therefore the thatched house in the site mentioned which was purchased bythe thatched house in the site mentioned which was purchased by
Narasimham and his brother Malakondaiah in which Narasimham hadNarasimham and his brother Malakondaiah in which Narasimham had been residing as stated mutated in the name of Narasimham in Panchayatabeen residing as stated mutated in the name of Narasimham in Panchayata
Records in the said village. Therefore the Panchayat records filed theRecords in the said village. Therefore the Panchayat records filed the plaintiffs relating to the thatched house but not relating to the plaintplaintiffs relating to the thatched house but not relating to the plaint schedule property. Subsequently the thatched house became in dilapidatedschedule property. Subsequently the thatched house became in dilapidated condition and Japan Babul tress are grown in this site. A part from thecondition and Japan Babul tress are grown in this site. A part from the property mentioned above there is another house and site which is theproperty mentioned above there is another house and site which is the plaint schedule property herein which is in joint and not divided among theplaint schedule property herein which is in joint and not divided among the brothers Gurappa, Peraiah and Venkata Subbaiah referred above as it isbrothers Gurappa, Peraiah and Venkata Subbaiah referred above as it is only Ac.0.03 cents and there is dilapidated house therein. The saidonly Ac.0.03 cents and there is dilapidated house therein. The said dilapidated house and site is kept joint and undivided among the heirs ofdilapidated house and site is kept joint and undivided among the heirs of
Gurappa, Peraiah and Venkata Subbaiah referred above i.e. the plaintiffs,Gurappa, Peraiah and Venkata Subbaiah referred above i.e. the plaintiffs, defendants and other coparceners referred above till today with thedefendants and other coparceners referred above till today with the knowledge one and all including the plaintiffs. As the said house isknowledge one and all including the plaintiffs. As the said house is dilapidated and the plaint schedule site is vacant the 3rddilapidated and the plaint schedule site is vacant the 3rd defendant used to defendant used to keep his manure in the plaint schedule site to the South of the saidkeep his manure in the plaint schedule site to the South of the said 6 dilapidated house. The joint 1/3rd share of Subbaiah, S/o. Venkata Subbaiahdilapidated house. The joint 1/3rd share of Subbaiah, S/o. Venkata Subbaiah in the plaint schedule property gave to Narayana, S/o. Gurappa during theirin the plaint schedule property gave to Narayana, S/o. Gurappa during their lifetime and in turn the said Narayana gave his share of site in North Eastlifetime and in turn the said Narayana gave his share of site in North East plot near to their residential house to the said Subbaiah, S/o. Venkataplot near to their residential house to the said Subbaiah, S/o. Venkata
Subbaih as mutual transaction took place about twenty years ago. As suchSubbaih as mutual transaction took place about twenty years ago. As such the defendants have got 2/3rd joint share in the plaint schedule property.the defendants have got 2/3rd joint share in the plaint schedule property.
The 1stThe 1st plaintiff has been given in marriage to Nalluri Mallikarjuna and she plaintiff has been given in marriage to Nalluri Mallikarjuna and she has been residing in the house of her husband in the same village. The 1sthas been residing in the house of her husband in the same village. The 1st plaintiff has no issues the 2ndplaintiff has no issues the 2nd plaintiff own brother of the 1 plaintiff own brother of the 1stst plaintiff has plaintiff has been residing along with sister Dhanamma, 1stbeen residing along with sister Dhanamma, 1st plaintiff and her husband in plaintiff and her husband in the house her husband in the same village. The plaintiffs or their fatherthe house her husband in the same village. The plaintiffs or their father
Narasimham never resided in the plaint schedule property at any point ofNarasimham never resided in the plaint schedule property at any point of time. As such the Tanikonda Narasimham has no right to sell the plainttime. As such the Tanikonda Narasimham has no right to sell the plaint schedule site to the 1stschedule site to the 1st plaintiff who is his daughter. The 1 plaintiff who is his daughter. The 1stst plaintiff’s plaintiff’s husband has got his own house wherein the 1sthusband has got his own house wherein the 1st plaintiff and her husband plaintiff and her husband have been living along with the 2ndhave been living along with the 2nd plaintiff till today. There is no need or plaintiff till today. There is no need or necessity to the 1stnecessity to the 1st plaintiff to purchase plaint schedule house site. No plaintiff to purchase plaint schedule house site. No consideration was passed and no delivery of possession under the allegedconsideration was passed and no delivery of possession under the alleged sale deed dated 15.12.1999 was effected. The said Narasimham, the fathersale deed dated 15.12.1999 was effected. The said Narasimham, the father of the plaintiffs has no exclusive and separate right over the plaint scheduleof the plaintiffs has no exclusive and separate right over the plaint schedule property and his right is joint and undivided along with the defendants andproperty and his right is joint and undivided along with the defendants and other coparceners. The joint rights of the defendants are no way effectedother coparceners. The joint rights of the defendants are no way effected under alleged the sale deed dated 15.12.1999. As such the plaintiffs areunder alleged the sale deed dated 15.12.1999. As such the plaintiffs are stopped from denying the rights of the defendants in the plaint schedulestopped from denying the rights of the defendants in the plaint schedule 7 property as the plaintiffs are well aware that the plaint schedule propertyproperty as the plaintiffs are well aware that the plaint schedule property has been in joint possession and enjoyment of the defendants and plaintiffs.has been in joint possession and enjoyment of the defendants and plaintiffs.
The suit is bad for non joinder of necessary parties as all the descendants ofThe suit is bad for non joinder of necessary parties as all the descendants of
Gurappa, Peraiah and Venkata Subbiah referred above are the proper andGurappa, Peraiah and Venkata Subbiah referred above are the proper and necessary parties to the suit. Therefore the suit is not maintainable. Thenecessary parties to the suit. Therefore the suit is not maintainable. The plaintiffs are not entitled to for any of the reliefs mentioned in the plaint.plaintiffs are not entitled to for any of the reliefs mentioned in the plaint.
The suit is badly barred by limitation. Hence prayed to dismiss the suit withThe suit is badly barred by limitation. Hence prayed to dismiss the suit with costs.costs.
4ii.4ii.The averments of the additional written statement of 1stThe averments of the additional written statement of 1st defendant defendant are in the same lines of the written statement and further submits that asare in the same lines of the written statement and further submits that as the plaintiffs have not been in exclusive possession and enjoyment of thethe plaintiffs have not been in exclusive possession and enjoyment of the plaint schedule property, the suit for declaration and injunction cannot beplaint schedule property, the suit for declaration and injunction cannot be maintainable. The plaintiffs did not pay court fee correctly and paidmaintainable. The plaintiffs did not pay court fee correctly and paid
U/s.24(a) but not 24(b) of APCF & SV Act. U/s.24(a) but not 24(b) of APCF & SV Act.
4iii.4iii.The averments of the additional written statement of 3rdThe averments of the additional written statement of 3rd defendant defendant adopted by defendants 1 & 2 are that, it is true that the plaint scheduleadopted by defendants 1 & 2 are that, it is true that the plaint schedule property is the joint family property of the plaintiffs father and theproperty is the joint family property of the plaintiffs father and the defendants and it is the not exclusive property of the Tanikonda Narasimhadefendants and it is the not exclusive property of the Tanikonda Narasimha the father of the plaintiffs. The amendment is belated stage as the writtenthe father of the plaintiffs. The amendment is belated stage as the written statement was filed by the defendants on 21.01.2011 in which they tookstatement was filed by the defendants on 21.01.2011 in which they took objection that the said Tanikjonda Narasimha is not exclusive owner and heobjection that the said Tanikjonda Narasimha is not exclusive owner and he has no exclusive title over the said property and denied the right and title ofhas no exclusive title over the said property and denied the right and title of the said Narasimham over the plaint schedule property. The plaint has tothe said Narasimham over the plaint schedule property. The plaint has to 8 be amended within three years from the date of the filing of the writtenbe amended within three years from the date of the filing of the written statement but the petition for amendment was filed on 24.04.2015.statement but the petition for amendment was filed on 24.04.2015.
Therefore it is badly barred by limitation and the plaintiffs are not entitledTherefore it is badly barred by limitation and the plaintiffs are not entitled to seek the declaration of the right and title over the plaint scheduleto seek the declaration of the right and title over the plaint schedule property in belated stage. The plaintiffs have no right, title, possession,property in belated stage. The plaintiffs have no right, title, possession, enjoyment or any manner of interest in the plaint schedule mentionedenjoyment or any manner of interest in the plaint schedule mentioned property. Hence prayed to dismiss the suit with costs.property. Hence prayed to dismiss the suit with costs.
5.5.Basing on the above pleadings, the following issues were framed forBasing on the above pleadings, the following issues were framed for trial before the trial court:trial before the trial court:
1. Whether the 1 st Whether the 1 st plaintiff purchased the plaint schedule property plaintiff purchased the plaint schedule property under registered sale deed dated 15.12.1999 as such she has been in under registered sale deed dated 15.12.1999 as such she has been in possession and enjoyment of the plaint schedule property a prayed possession and enjoyment of the plaint schedule property a prayed for? for?
2. Whether the defendants are got 2/3 rd Whether the defendants are got 2/3 rd joint share in the plaint joint share in the plaint schedule property and the plaintiff has got 1/3 rd schedule property and the plaintiff has got 1/3 rd share as pleaded by share as pleaded by the defendants in their written statement? the defendants in their written statement?
3. Whether the suit is bad for non joinder of necessary parties as Whether the suit is bad for non joinder of necessary parties as alleged by the defendants? alleged by the defendants?
4. Whether the plaintiffs are entitled for the relief of Permanent Injunction as prayed for?
5. Whether plaintiff No.1 entitled fort the relief of declaration of her Whether plaintiff No.1 entitled fort the relief of declaration of her right and title over schedule property as prayed for? right and title over schedule property as prayed for?
6. Whether court fee paid by plaintiffs are correct? Whether court fee paid by plaintiffs are correct?
7. To what relief? To what relief?
6.On behalf of the plaintiffs, P.W.1 & P.W.2 were examined and Ex.A.1 to Ex.A.8 were marked. On behalf of the defendants, D.W.1 to D.W.3 were examined, but no document was marked.
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7.After hearing the arguments on both sides and on considering the evidence on record, the trial court dismissed the suit without cost.
8.Aggrieved by the said Judgment and decree, the unsuccessful plaintiffs preferred this appeal on the following grounds:
The decree and judgment of the trial court is contrary to law and weight of evidence and against the probabilities of the case. The trial court failed to look after Ex.A.4 and commissioner report. As seen from the specific stand taken by the defendants in written statement that the defendants contended there is a dilapidated house in the plaint schedule property. The advocate commissioner visited the plaint schedule property and categorically observed there is a thatched hut in the plaint schedule property. As per the report of the advocate commissioner the defendants 1 and 2 were present at the time of inspection of plaint schedule property but they have not filed any objections with regard to the report of the advocate commissioner. The trial court came to wrong conclusion that the panchayat records filed by the plaintiffs not belongs to the plaint schedule property.
All the Ex.A.1 to Ex.A.8 goes to show there is a house in the name of father of plaintiffs with assessment No.228. All Ex.A.2, Ex.A.3, Ex.A.5 to Ex.A.8 are being maintained by the course of business by the statutory body. The report of the learned commissioner and Ex.A.2 to Ex.A.8 are clinchingly establishing that there is a thatched hut in the plaint schedule property and the contention of the defendants is false. The trial court failed in noting that in plaint schedule property there is a dilapidated house in the plaint 10 schedule property. The plaintiffs proved that the said hut belongs to her as per documentary evidence and also oral evidence. The onus of proof shifted the defendants. The defendants are admitting that the plaint schedule property is ancestral property. As per the oral partition Gurappa got
Southern side. Peraiah got middle portion and Venkata Subbaiah got
Northern side portion of the house. The specific case of the defendants is that all ancestral properties of Gurappa, Peraiah and Venkata Subbaiah were partitioned except the plaint schedule property. When it is the case the defendants did not prove that the partition among the above said people is partial partition and plaint schedule property is kept joint. It is important to note U/s.103 of Evidence Act burden of proof as to particular fact lies on the person who wishes the court to believe in its existence. The defendants contended there is a dilapidated house in the plaint schedule property.
D.W.1 in his evidence stated that it is true there is a two portion house on
Northern side of plaint schedule property. It is true that the said two portioned building belongs to Tanikonda Ramaiah who gave it to his two daughters i.e., Gorantla Lakshamma & Gorantla Dhanamma and they have been residing in the said house. It is true that there is a building of my elder sister Varamma on Northern side of building of Lakshamma and
Dhanamma. It is true that the 3rd defendant is also residing in the same building along with Ravamma. It is true that my father gave the said building to Varamma. The trial court failed to observe that in cross examination of D.W.1 also deposed that they got partitioned their properties, Narasimham and Malakondaiah partitioned their properties and 11 further contended that their ancestors also partitioned their ancestral properties but they did not adduced any evidence to show that the plaint schedule property is not at partitioned. The trial court failed to observe that the same fact also deposed by D.W.1 to D.W.3 during the course of cross examination. Hence prays to allow the appeal by setting aside the decree and judgment of the trial court.
9.Arguments heard on behalf of learned counsels for both parties.
10.Now the points that arise for consideration in this appeal are:
1. Whether the decree and judgment passed by the Principal Junior
Civil Judge, Kandukur in O.S.No.219/2010 dated 13.07.2018
warrants any interference in this appeal?
2. To what relief?
11.Point No.1:
The contention of the plaintiffs basing on Ex.A.1 to Ex.A.8 is that, theThe contention of the plaintiffs basing on Ex.A.1 to Ex.A.8 is that, the suit schedule property is the self acquired property of the plaintiffs’ fathersuit schedule property is the self acquired property of the plaintiffs’ father by name Narasimham. He sold the same to the 1stby name Narasimham. He sold the same to the 1st plaintiff on 15.12.1999 plaintiff on 15.12.1999 for valuable consideration of Rs.8,000/-. The 1stfor valuable consideration of Rs.8,000/-. The 1st plaintiff constructed a plaintiff constructed a thatched house and has been leaving in the suit schedule property by payingthatched house and has been leaving in the suit schedule property by paying house tax on the name of her father. The 2ndhouse tax on the name of her father. The 2nd plaintiff who is the brother of plaintiff who is the brother of the 1stthe 1st plaintiff is working as a mason in Hyderabad. Whenever he came to plaintiff is working as a mason in Hyderabad. Whenever he came to village used to reside in the said house. The defendants who are no othervillage used to reside in the said house. The defendants who are no other than the brothers and trying to interfere with the peaceful possession andthan the brothers and trying to interfere with the peaceful possession and enjoyment of the suit schedule property. In the written statementenjoyment of the suit schedule property. In the written statement contending that the suit schedule property as a joint family property.contending that the suit schedule property as a joint family property.
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Hence, the father of the plaintiffs by name Narasimham had no salableHence, the father of the plaintiffs by name Narasimham had no salable interest on the plaint schedule property to the 1stinterest on the plaint schedule property to the 1st plaintiff. plaintiff.
12.12.The contention of the defendants is that, originally TanikondaThe contention of the defendants is that, originally Tanikonda
Gurapa, Perraiah, Venkata Subba Rao are the natural brothers. TheyGurapa, Perraiah, Venkata Subba Rao are the natural brothers. They partitioned their house sites and other landed properties at about 50 yearspartitioned their house sites and other landed properties at about 50 years back. The suit schedule property is the joint family property of the ancestralback. The suit schedule property is the joint family property of the ancestral of plaintiffs and defendants. So the plaintiffs and defendants got share inof plaintiffs and defendants. So the plaintiffs and defendants got share in the suit schedule property. The plaintiffs did not added proper andthe suit schedule property. The plaintiffs did not added proper and necessary properties in the suit and the injunction against the co-ownernecessary properties in the suit and the injunction against the co-owner cannot be granted.cannot be granted.
13.13.The P.W.1 in his evidence stated that the plaint schedule propertyThe P.W.1 in his evidence stated that the plaint schedule property was purchased by her on 15.02.2009 from Tanikonda Narasimham throughwas purchased by her on 15.02.2009 from Tanikonda Narasimham through a register sale deed. Since, then the 1sta register sale deed. Since, then the 1st plaintiff constructed a house and has plaintiff constructed a house and has been residing along with her father. In support of her contention she filedbeen residing along with her father. In support of her contention she filed
Ex.A.1 to Ex.A.8 and also examined her brother as P.W.2. The P.W.2Ex.A.1 to Ex.A.8 and also examined her brother as P.W.2. The P.W.2 collaborating the evidence of P.W.1. The defendants contended that Ex.A.1collaborating the evidence of P.W.1. The defendants contended that Ex.A.1 is a sham document and no consideration was passed. Hence the burden isis a sham document and no consideration was passed. Hence the burden is on the plaintiffs to prove the contents of Ex.A.1, but the plaintiffs noton the plaintiffs to prove the contents of Ex.A.1, but the plaintiffs not examined any attestors of the sale deed i.e., Ex.A.1. The evidence of P.W.1examined any attestors of the sale deed i.e., Ex.A.1. The evidence of P.W.1 & P.W.2 is that after purchase of plaint schedule property the 1st& P.W.2 is that after purchase of plaint schedule property the 1st plaintiff plaintiff constructed a thatched house and has been paying house tax to theconstructed a thatched house and has been paying house tax to the panchayat in the name of Tanikonda Narasimham. Ex.A.2 to Ex.A.8 arepanchayat in the name of Tanikonda Narasimham. Ex.A.2 to Ex.A.8 are house tax receipts. The P.W.1 in her cross examination categoricallyhouse tax receipts. The P.W.1 in her cross examination categorically 13 admitted that the Narasimham is her father and he got two sons and threeadmitted that the Narasimham is her father and he got two sons and three daughters namely Malakondaiah, Mallikarjuna {2nddaughters namely Malakondaiah, Mallikarjuna {2nd plaintiff}, Lakshamma, plaintiff}, Lakshamma,
Jayamma and herself. At present she has been residing along with herJayamma and herself. At present she has been residing along with her husband at the house of her husband. The P.W.2 also in his crosshusband at the house of her husband. The P.W.2 also in his cross examination admitted that the husband of the 1stexamination admitted that the husband of the 1st plaintiff has got land, plaintiff has got land, house, cattle shed in his village. The P.W.1 & P.W.2 categorically admittedhouse, cattle shed in his village. The P.W.1 & P.W.2 categorically admitted that the 1stthat the 1st plaintiff has been residing along with her husband in the same plaintiff has been residing along with her husband in the same village. Hence the plaintiffs failed to prove that the 1stvillage. Hence the plaintiffs failed to prove that the 1st plaintiff is residing plaintiff is residing in the plaint schedule property.in the plaint schedule property.
14.14.The contention of the defendant is that, the plaint schedule propertyThe contention of the defendant is that, the plaint schedule property is a joint family property and got 2/3rdis a joint family property and got 2/3rd share in the plaint schedule property. share in the plaint schedule property.
It is an admitted fact that Thanikonda Gurrapa, Peraiah and VenkataIt is an admitted fact that Thanikonda Gurrapa, Peraiah and Venkata
Subbaiah are the natural brothers and they divided their propertiesSubbaiah are the natural brothers and they divided their properties including house site at about 50 years back have been living separately. Theincluding house site at about 50 years back have been living separately. The
Thanikonda Gurrapa is having one son by name Narayana. The saidThanikonda Gurrapa is having one son by name Narayana. The said
Narayana is having three sons and one daughter by name Malakondaiah {1stNarayana is having three sons and one daughter by name Malakondaiah {1st defendant}, Subba Rao {2nddefendant}, Subba Rao {2nd defendant}, Sundara Rao {3 defendant}, Sundara Rao {3rdrd defendant} & defendant} &
Varamma. Peraiah has got two sons by name Narasimham (plaintiffsVaramma. Peraiah has got two sons by name Narasimham (plaintiffs father) & Malakondaiah. The Narasimham has got two sons and threefather) & Malakondaiah. The Narasimham has got two sons and three daughters by name Malakondaiah, Mallikanjuna {2nddaughters by name Malakondaiah, Mallikanjuna {2ndplaintiff},plaintiff},
Lakashmamma, Jayamma, Danamma {1stLakashmamma, Jayamma, Danamma {1st plaintiff}. The Venkata Subbaiah plaintiff}. The Venkata Subbaiah has got only one son by name Subbaiah. The said Subbaiah has got one sonhas got only one son by name Subbaiah. The said Subbaiah has got one son and three daughters by name Mallikarjuna, Varamma, Nagendramma &and three daughters by name Mallikarjuna, Varamma, Nagendramma & 14
Sujatha. As per the oral partition Gurrapa got Southern side, Parraiah gotSujatha. As per the oral partition Gurrapa got Southern side, Parraiah got middle portion and Venkata Subbaiah got Northern side portion of themiddle portion and Venkata Subbaiah got Northern side portion of the house. The D.W.1 to D.W.3 deposed that the plaint schedule property ishouse. The D.W.1 to D.W.3 deposed that the plaint schedule property is joint family property of the plaintiffs. The P.W.1 also admitted the samejoint family property of the plaintiffs. The P.W.1 also admitted the same about the relationship and genealogy of her grandfathers. The P.W.2 in hisabout the relationship and genealogy of her grandfathers. The P.W.2 in his cross examination admitted that his brothers have got share in the propertycross examination admitted that his brothers have got share in the property covered under Ex.A.1 as well as plaint schedule property as it is a ancestralcovered under Ex.A.1 as well as plaint schedule property as it is a ancestral property of his father. As per the admission of P.W.2, it shows that theproperty of his father. As per the admission of P.W.2, it shows that the plaintiffs and defendants are having share in the plaint schedule property.plaintiffs and defendants are having share in the plaint schedule property.
15.15.The further contention of the defendants is that, the suit is bad forThe further contention of the defendants is that, the suit is bad for non-joinder of necessary parties. On perusal of the evidence of both parties,non-joinder of necessary parties. On perusal of the evidence of both parties, the plaint schedule property is a joint family property. The plaintiffs oughtthe plaint schedule property is a joint family property. The plaintiffs ought to have impleaded all the sons and daughters of the Narasimham as well asto have impleaded all the sons and daughters of the Narasimham as well as the grandsons and daughters of Subbaiah, but the plaintiffs not added themthe grandsons and daughters of Subbaiah, but the plaintiffs not added them as parties. The plaintiffs further contended that from the date of Ex.A.1, theas parties. The plaintiffs further contended that from the date of Ex.A.1, the 11stst plaintiff has been in possession and enjoyment of the plaint schedule plaintiff has been in possession and enjoyment of the plaint schedule property. As per the report of the advocate commissioner the plaintproperty. As per the report of the advocate commissioner the plaint schedule property having is a thatched hut collapsed and other physicalschedule property having is a thatched hut collapsed and other physical features were noted and on perusal of the advocate commissioner report it isfeatures were noted and on perusal of the advocate commissioner report it is clear that the plaint schedule property having thatched hut collapsed. Theclear that the plaint schedule property having thatched hut collapsed. The evidence of P.W.1 & P.W.2, Ex.A.2 to Ex.A.8 shows that there is anevidence of P.W.1 & P.W.2, Ex.A.2 to Ex.A.8 shows that there is an existence of old thatched house and house tax has been paying in the nameexistence of old thatched house and house tax has been paying in the name of Tanikonda Narasimham, who is the father of the plaintiffs. But P.W.1 inof Tanikonda Narasimham, who is the father of the plaintiffs. But P.W.1 in 15 her cross examination categorically admitted that she has been residingher cross examination categorically admitted that she has been residing with her husband in the same Village. Hence the question of P.W.1 residingwith her husband in the same Village. Hence the question of P.W.1 residing in the plaint schedule property doesn’t arise. The P.W.1 furtherin the plaint schedule property doesn’t arise. The P.W.1 further categorically admitted that the 3rdcategorically admitted that the 3rd defendant has been laying manure heap defendant has been laying manure heap and send to the thatched hut i.e., plaint schedule property. As per theand send to the thatched hut i.e., plaint schedule property. As per the admission of P.W.1, it is clear that the 3rdadmission of P.W.1, it is clear that the 3rd defendant has been using the defendant has been using the plaint schedule property for keeping manure heap. The P.W.2 also admittedplaint schedule property for keeping manure heap. The P.W.2 also admitted that Ex.A.1 registered sale deed does not disclose the existence of house inthat Ex.A.1 registered sale deed does not disclose the existence of house in the plaint schedule property. As per the settled law an admission, if clearlythe plaint schedule property. As per the settled law an admission, if clearly and unequivocally made, is the best evidence against the party making itand unequivocally made, is the best evidence against the party making it and for not conclusive, shifts the onus on to the maker on the principle thatand for not conclusive, shifts the onus on to the maker on the principle that “what a party must admits to be true may be reasonably be presumed to be“what a party must admits to be true may be reasonably be presumed to be so and until the presumption is rebutted the fact admitted must be taken toso and until the presumption is rebutted the fact admitted must be taken to be established” as per sections 17 to 21 of Indian Evidence Act”. In view ofbe established” as per sections 17 to 21 of Indian Evidence Act”. In view of the admissions by P.W.1 and P.W.2 and Ex.A.1 the plaintiffs failed to provethe admissions by P.W.1 and P.W.2 and Ex.A.1 the plaintiffs failed to prove due execution of the sale deed and the plaintiffs father has exclusive rightdue execution of the sale deed and the plaintiffs father has exclusive right over the plaint schedule property to sell the same to 1stover the plaint schedule property to sell the same to 1st plaintiff. It is the plaintiff. It is the duty of the plaintiffs to prove the same. As seen from the contents of theduty of the plaintiffs to prove the same. As seen from the contents of the
Ex.A.1 registered sale deed there is no whisper about the existence of theEx.A.1 registered sale deed there is no whisper about the existence of the house in the plaint schedule property. As per the recitals of Ex.A.1 thathouse in the plaint schedule property. As per the recitals of Ex.A.1 that there is no clarity on source of the title to the vendor i.e., father of the 1stthere is no clarity on source of the title to the vendor i.e., father of the 1st plaintiff.plaintiff.
16
16.16.As per the principle laid down by the Hon’ble Supreme Court of IndiaAs per the principle laid down by the Hon’ble Supreme Court of India made in Sanjiv Rajendra Bhatt Vs Union of India and Ors (reported in 2016made in Sanjiv Rajendra Bhatt Vs Union of India and Ors (reported in 2016 (3) ALT 27) to the effect that any relief cannot be granted if a person(3) ALT 27) to the effect that any relief cannot be granted if a person approaches the Court with unclean hands. As per the principle laid down byapproaches the Court with unclean hands. As per the principle laid down by the Hon'ble High Court of Andhra Pradesh made in Indukuru Ramachandrathe Hon'ble High Court of Andhra Pradesh made in Indukuru Ramachandra
Reddy and another Vs. Agnigundla Venkata Ranga Rao reported in 2012 (4)Reddy and another Vs. Agnigundla Venkata Ranga Rao reported in 2012 (4)
ALT 569 to the effect that the injunction relief being an equitable remedy, aALT 569 to the effect that the injunction relief being an equitable remedy, a party who doesn't come to the Court with clean hands is not entitled forparty who doesn't come to the Court with clean hands is not entitled for injunction relief. The said principles squarely apply to the facts of theinjunction relief. The said principles squarely apply to the facts of the plaintiff’s case. Under these circumstances this court is of the opinion thatplaintiff’s case. Under these circumstances this court is of the opinion that the plaintiffs failed to prove that they are in possession and enjoyment of thethe plaintiffs failed to prove that they are in possession and enjoyment of the plaint schedule property, that the defendants proved that the Judgment andplaint schedule property, that the defendants proved that the Judgment and
Decree of the trial Court is not liable to be set asided. Accordingly thisDecree of the trial Court is not liable to be set asided. Accordingly this point is answered.point is answered.
17.17.Point No.2::Point No.2
In view of my findings on Point No.1, the appeal filed by the appellants/plaintiffs is not maintainable and the same has to be dismissed.
In the result, the appeal suit is dismissed without costs confirmingIn the result, the appeal suit is dismissed without costs confirming the decree and Judgment in O.S.No.219/2010 dated 13.06.2018 passed bythe decree and Judgment in O.S.No.219/2010 dated 13.06.2018 passed by the Principal Junior Civil Judge, Kandukur.the Principal Junior Civil Judge, Kandukur.
Dictated to the stenographer, transcribed by him, corrected and
pronounced by me in the open Court, this the 21 st day of April, 2025.
Civil Judge (Senior Division),
Kandukur 17
Appendix of Evidence
- Nil -
C.J.(S.D.), Kandukur.