1O.S.No.12/16
IN THE COURT OF THE I ADDITIONAL CHIEF JUDGE: CITY CIVIL COURT:
SECUNDERABAD
DATED : THIS THE 3RD DAY OF APRIL, 2017
PRESENT ; V.SRINIVAS, XXVII ADDL. CHIEF JUDGE
FAC I ADDL. CHIEF JUDGE
O.S.NO.12 OF 2015
Between:
1.Smt.P.Satya Laxmi
2.Smt.M.Vijaya Lakshmi..Plaintiffs
And
1.P.Harinath 2.P.Ashok 3.P.Nagender 4.P.Govind Raj @ Govinda Raju 5.Smt.M.Vijaya Lakshmi @ Prameela
6.Smt.K.Uma Rani..Defendants
This suit is coming on this day before me for final hearing in the presence of Sri K.Pavan Kumar, Advocate for the plaintiff and of Sri
B.Pratap, Advocate for the defendant No.1, and of Sri P.Laxman,
Advocate for defendant Nos.2 to 4 and of Sri N.Surender Babu,
Advocate for defendant NO.5 & 6 and having stood over till this day for consideration, this court delivered the following :
JUDGMENT
This suit is filed U/O.7 R.1 & 2 R/w.Sec.26 CPC by the plaintiff for the reliefs (1) Preliminary decree for partition and separate possession in respect of suit schedule property. (2) For appointment of
Commissioner to partition the suit schedule property (3) For passing final decree in pursuance of preliminary decree (4) For permanent injunction restraining the defendant No.1 from interfering with the peaceful possession of the plaintiffs share and costs.
2O.S.No.12/16 2 The brief facts of the case of the plaintiffs are that one
P.Yadagiri, husband of plaintiff No.1 along with other family members purchased 315 sq. yds of site (suit schedule property) through a registered sale deed dated 18.2.1980. The said suit schedule property consists of ground plus first floor and pent house with joint funds of plaintiffs and defendants. It is further contended that it is a joint property each member of the family entitled for 1/7th share. Plaintiff jointly held 2/7th share as the plaintiff No.1’s husband Yadagiri died intestate leaving behind his wife and six sons and three daughters. It is further contention of plaintiff that during the life time of Yadagiri the 1st and 2nd son by name Venkat Raju and Narsing Rao separated from the joint family and partitioned their shares out of the joint property, thereby they have not added as parties and that they are not necessary and proper parties. It is further contention of the plaintiff is that after demise of Yadagiri, the suit property was jointly enjoyed by the plaintiff herein in exercise of rights of ownership of the suit schedule property and that after demise of Yadagiri, the first plaintiff, who is the mother of first defendant aged of 85 years, requested to come forward for partition of the suit schedule property by metes and bounds. The defendants postponed the matter on one pretext or the other and inspite of meeting is held, but it was not fructified nor come forward for agreed division of the suit schedule property as defendant
No.1 not accepted for the proposal made by the first plaintiff who is their mother. On the other hand, making threatening call to first plaintiff with dire consequences, which compelled the plaintiffs 1 and 2 to file the present suit. Moreover, the first defendant after demise of
Yadagiri along with his family members are not allowing the joint owners to enjoy the joint family members as another brother come forward to file the suit for partition. It is further contention of the first 3O.S.No.12/16 defendant with the help of his family members blocking the common areas like staircase, thereby seeking injunction restraining defendant
No.1 for peaceful possession of common areas.
3Defendant No.1 filed his written statement denying the allegations made in the plaint and further contended that the suit is barred by limitation and is bad for non joinder of necessary parties.
Further contends that he is the absolute owner of suit schedule property and suit building was constructed entirely with his own funds.
His father had no income at all to purchase the suit land and for construction of the building. As a practice the suit property was purchased in the name of surviving eldest person of the family. The same fact was acknowledged and reduced into writing by late
P.Yadagir, the first plaintiff herein as well as their legal descendants, but all such documents are stolen by plaintiff and they could not be traced out. The plaintiffs in collusion with each other filed the present suit. Since the date of purchase, the suit schedule property has been in exclusive possession of the defendant herein and plaintiff No.1 being the mother of defendant is permitted to live there along with defendant No.23 herein out of natural love and affection. There is no joint family property at all. Hence, pray to dismiss the suit.
4Defendants 2 to 4 filed written statement, which is adopted by defendants 5 and 6 by filing a memo. Defendants 2 to 6 contention is that the suit schedule property is a joint family property and is in joint possession of the same. Defendant No.1 is in possession of North
East First Floor portion, Defendant No.2 is in possession of South East
First floor portion, Defendant No.3 is in possession of North East
Ground Floor portion and the defendant No.4 is in possession of South
East Ground floor portion. The pent house portion is earmarked to the 4O.S.No.12/16 share of plaintiffs and the defendants 5 and 6. Hence, suit may be decreed as prayed for.
5Basing on the above rival pleadings, and upon hearing both sides, the following issues are framed for trial :
1. Whether the suit schedule properties are joint properties as claimed by plaintiff or the self acquired properties of defendant No.1 as claimed by him ?
2. Whether the plaintiffs are entitled for a share and partition of the suit schedule property as prayed for ?
3. Whether the plaintiff is entitled for permanent injunction as prayed for ?
4. To what relief ?
6During trial in support of case of the plaintiffs PW.1 was examined and got marked Exs.A1 to A23 documents and on behalf of defendants 2 to 6 Dw.1 was examined and no documents were marked.
7.ISSUE NO.1&2 :
The case and contention of the plaintiff is that one
P.Yadagiri, husband of plaintiff along with other family members purchased 315 sq. yds of site (suit schedule property) through a registered sale deed dated 18.2.1980. The said suit schedule property consists of ground plus two and pent house with joint funds of plaintiffs and defendants. It is further case and contention of the plaintiff is that it is a joint property each member of the family entitled for 1/7th share. Plaintiff jointly held 2/7th share as the plaintiff’s husband Yadagiri died intestate leaving behind his wife and six sons and three daughters. It is further contention of plaintiff that during the life time of Yadagiri the 1st and 2nd son by name Venkat Raju and
Narsing Rao separated from the joint family and partitioned their 5O.S.No.12/16 shares out of the joint property, thereby they have not added as parties and that they are not necessary and proper parties. It is further case and condition of the plaintiff is that after demise of Yadagiri, the suit property was jointly enjoyed by the plaintiff herein in exercise of rights of ownership of the suit schedule property and that after demise of Yadagiri, the first plaintiff, who is the mother of first defendant aged of 85 years, requested to come forward for partition of the suit schedule property by metes and bounds. The defendants postponed the matter on one pretext or the other and inspite of meeting is held, but it was not fructified nor come forward for agreed division of the suit schedule property as defendant No.1 not accepted for the proposal made by the first plaintiff who is their mother. On the other hand, making threatening call to first plaintiff with dire consequences, which compelled the plaintiffs 1 and 2 to file the present suit. Moreover, the first defendant after demise of Yadagiri along with his family members are not allowing the joint owners to enjoy the joint family members as another brother come forward to file the suit for partition. Thirdly, the first defendant with the help of his family members blocking the common areas like staircase, thereby seeking injunction restraining defendant No.1 for peaceful possession of common areas.
8The defendant No.1 opposed the claim, more particularly the first defendant, as suit property was purchased by him his own and self earned money and entirely constructed with his own funds. None of the members of his family i.e. plaintiff or the other defendants contributed nothing in the construction of the house for the suit schedule property. Further contention is that his father late Yadagiri had no income at the time of purchase and that the suit property was purchased in the name of surviving eldest person of the family, until 6O.S.No.12/16 same was prohibited by law. The first plaintiff who also taken a plea that the said claim of defendant No.1 is admitted and same is reduced into writing, but said documents are misplaced and not traced and that the plaintiff and defendants 2 to 6 colluded and filed the present suit.
Since the plaintiff who came forward to claim a share, the initial burden lies on the plaintiff for which the 2nd plaintiff examined as PW.1. She got marked 23 documents, among them Ex.A1 is sale deed and Ex.A2 to A7 are original bills and receipts , Exs.A8 & A9 are electricity bills and receipts, Exs.A10 to A17 are water bill receipts, Exs.A18 to A21 are water bill notices, Ex.A22 is Encumbrance certificate, and Ex.A23 is
Certified copy of Doc.No.375/1980 and stood for cross examination and nothing from the evidence except following statements. Her father
Yadagiri was a Tailor and a Suit Maker. She got six brothers and three sisters and she is 8th among their family members. Her elder brother
Venkat Raju Residing separately at Boinpally and her brothers are doing separately and opened tailor shop. Suit schedule property was purchased by her father as open plot and in 1981 started construction and presently in the suit schedule property there are ground plus first floor and pent house. In the ground and first floor there are two portions each and the pent house is a single portion thus in all there are five portions. Pent house construction was completed in the year 1982. Prior to the construction of the suit schedule house all her brothers and sisters were jointly residing. Presently the suit house was converted into commercial shop occupied by each of her brothers running tailoring shop. Till her father was alive all of them residing jontly and her brother Venkata Raju and Narsing Rao relinquished their right in the property and said relinquishment deed is with
Nagender. So from the above statement of PW.1 and it coupled with documents shows the schedule property is a joint property and no 7O.S.No.12/16 document is produced to make believe that there are some other properties and which were not added and PW.1 consistently stated the other two brothers Venkata Raju and Narsing Rao did not come forward to add them as parties or not claiming anything. On the other hand, it is the specific case of the defendant No.1 that it is his self acquired property and he himself constructed the entire suit schedule property for which absolutely no evidence and since first plaintiff is a Senior
Citizen, aged about 85 years old, the defendant No.1 who is the son did not come forward to disprove the case of the plaintiff and on 22.12.16 this court observed :
In this case the first plaintiff is aged of 85 years old and same is admitted by defendant No.1 and that first plaintiff herself present
in the court and requested the court to dispose of the matter at
the earliest.
On 18.10.2016 the matter is coming up for evidence of
Defendant No.1 as well cross examination of Dw.1 from that dte onwards till 4.11.2016 he (defendant No.1) requested time and adjourned till 4.11.2016 at the request of defendant No.1.
Even on 4.11.2016 also defendant No.1 did not adduce evidence on his behalf nor cross examine the Dw.1, as there is no chance of showing interest by defendant No.1 to cross examine the Dw.1.
Time refused and posted the matter for arguments to 15.11.2016 from 4.11.2016.
On 15.11.2016 at the request of Defendant No.1 again matter is reopened posted for cross examination of Dw.1 by Defendant
No.1 and posted the matter to 16.11.2016 at request of defendant No.1.
8O.S.No.12/16 On 16.11.2016 the defendant No.1 again intimated the court that his counsel went out of station and seeking time it was intimated at 4.40 PM. ON that day from 10.30 AM to 4.40 PM all the way
Dw.1 was sitting in the court hall but at 4.40 PM defendant No.1 said his counsel was out of station. As defendant No.1 is taking adjournments on one ground or the other, however, one more opportunity was given to defendant No.1 to cross examine Dw.1 on payment of costs of Rs.2000/- and posted the matter to 30.11.2016.
Even on 30.11.3016 Dw.1 present from 10.30 AM to 3.30 PM the defendant No.1 neither present nor paid costs nor attempted to cross examine the Dw.1 through his counsel. Hence, n that day this court treated the cross examination of Dw.1 by defendant
No.1 as no cross examination and posted the matter for arguments to 6.12.2016.
9If at all defendant No.1 had any evidence when an opportunity was given, he ought to have come forward and file any document to make believe that it is self acquired property of him, but he did not utilize the same. It is clear that it is a joint property of plaintiff and defendants, but not an exclusive property of defendant
No.1 as claimed by him. Defendant No.1 has not filed any evidence to prove his contention that the suit schedule property is his self acquired property and not the joint family property as claimed by the plaintiff.
10Supporting evidence of plaintiff, the other defendant i.e.
P.Ashok, the another brother of 2nd plaintiff filed evidence affidavit and supported the version of plaintiff and his evidence supports the version of PW.1. For all these reasons, I am of the firm view that it is a joint 9O.S.No.12/16 property, in nut shell Ex.A1 speaks the suit property was standing in the name of Yadagiri, who is husband of first plaintiff and father of
PW.1 and other defendants, on which the suit house i.e. ground plus first plus pent house was constructed and as per the evidence of PW.1 it is in joint possession and no contra evidence is placed to disprove the case of PW.1, thereby the suit schedule property is liable for partition and plaintiffs 1 and 2 are entitled for 1/8th share each.
11.ISSUE NO.3
It is the specific allegation made by the plaintiff that the first defendant is blocking common areas and they are not allowing the other defendants as well as the plaintiff for ingress and egress of the suit schedule property, thereby seeking injunction against defendant
No.1 restraining him from interfering with the peaceful possession and ingress and egress of the suit schedule property, for which on perusal of cross examination of PW.1 and also PW.1 supported the same in her chief examination. No cross examination is made in the evidence of
PW.1.
12.ISSUE NO.4:
In the result, suit is decreed preliminarily dividing the suit schedule property into 8 equal shares. Plaintiffs 1 and 2 entitled for 1/8th share each. Permanent injunction granted restraining defendant
No.1 from interfering with the peaceful possession and enjoyment of the common areas by the plaintiffs. No costs.
Dictated to Stenographer, transcribed by her, corrected and
pronounced by me, in the open court on this the 3rd day of April, 2017.
FAC I ADDL. CHIEF JUDGE
APPENDIX OF EVIDENCE
10O.S.No.12/16
Witnesses examined
For plaintiffFor defendants
PW.1: M.Vijaya Lakshmi Dw.1: P.Ashok
Exhibits marked for the plaintiff
Ex.A1Original sale deed
Ex.A2 to A7 Original bills and receipts
Ex.A8 & A9 Original Electricity bill and receipts
Exs.A10 to A17 Original water bill receipts
Ex.A18 to A21 Water bill notices
Ex.A22Encumbrance certificate
Ex.A23CC of Doc.No.375/1980
Exhibits marked for defendant : Nil
FAC I ADDL. CHIEF JUDGE
CITY CIVIL COURT: SECUNDERABAD