OS No.30 of 2014 1 outof 14 Dated: 21.03.2024.
IN THE COURT OF THE JUNIOR CIVIL JUDGE
AT KODANGAL, VIKARABAD DISTRICT.
Present: - Sri B. Sriram, Junior Civil judge, Kodangal, Vikarabad District.
Thursday, this the 21st day of March, 2024.
OS No.30 of 2014
Between:
Vadde Chinna Narsimulu S/o. Late Vadde Basappa, aged about 50 years, Occ: agriculture, R/o. Indiranagar Colony, Kodangal Village and Mandal, Vikarabad Disrict.
…Plaintiff
AND
1.Vadde Manemma D/o. Late Vadde Pedda Narsimulu, aged about 30 years, Occ: agriculture,
2.Vadde Yashodha D/o. Late Vadde Pedda Narsimulu, aged about 24 years, Occ: agriculture,
3.Vadde Basanthi S/o. Late Vadde Basappa, (Died per LR) aged about 40 years, Occ: agriculture,
Defendant Nos.1 to 3 are R/o. Indiranagar Colony, Kodangal Village and Mandal, Vikarabad District.
4.Vadde Kistappa S/o. Balappa @ Chinna Balappa, aged about 48 years, Occ: agriculture, R/o. Waddergally Colony, Kodangal Village and Mandal, Vikarabad District.
5.Vadde Dastamma W/o. Late Vadde Basanthi, aged about 35 years, Occ: agriculture, R/o. Indiranagar Colony, Kodangal Village and Mandal, Vikarabad District.
….Defendants
This case is coming before me for final hearing in the presence of Sri T. Ramulu, Advocate for the Plaintiff and Sri B. Venkataiah, Advocate for defendant nos. 1 and 2 and Sri A. V. Anand, Advocate for defendant Nos.3 and 4 the matter having been heard and stood over for consideration till this date, this court delivered the following.
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J U D G M E N T
1. This is a suit filed by the plaintiff for Partition of suit scheduled property situated at Yenkepally Village, Bomraspet Mandal, Vikarabad District into 3 equal shares and allotment of 1/3rd share to the plaintiff by metes and bounds and delivery of the possession.
2. The gist of the contents of the plaint is as follows:
(a) The plaintiff, father of D1 and D2 by name Late Vadde Pedda
Narsimulu and D3 are owne brothers and sons of Late Vadde Basappa. D3 was died and D5 is the wife of D3. The mother of the plaintiff, father of D1 and D2 also died. The plaintiff, D1 to D3 and D5 are the members of Hindu undivided family and they are co-coparcener of the suit land in Sy.No.192/RU (old
Sy.No.89) dry an extent of Ac.02-37 gts situated at Yenkepally Village,
Bomraspet Mandal, Mahabubnagar District is the ancestral property of the plaintiff and D1 to D3 and D5 i.e.., suit scheduled property.
(b)The father of the plaintiff by name Late Vadde Basappa was the
Karta of the family and he has been managing family and suit property. The father of the plaintiff died at about 8 years ago leaving behind plaintiff and D1 to D3 and D5 are the legal heirs to succeeded his property. Therefore, plaintiff being the co-parcener of the family has got 1/3rd right and share in the suit scheduled property along with the other defendants.
(c) On 04.06.2014, the plaintiff demanded the defendant Nos.1 to 3 for partition of the suit scheduled property by metes and bounds,but they colluding each other refused to give his share. Finally, on 11.06.2014 plaintiff demanded for partition of the suit scheduled property but defendant Nos.1 to 3 did not
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come forward for partition, D3 threatened the plaintiff before the village elders as the father of the plaintiff Late Vadde Basappa and D3 secretly alienated the suit land to D4 about 14 years back. The plaintiff approached the Sub Registrar
Kodangal and obtained certified copy of registered sale deed and came to know that father of the plaintiff and D3 colluding with each other executed a nominal registered sale deed vide document No.600/2000 dated 23.02.2000 by the father of the plaintiff in favour of D4 in order to avoid the share of plaintiff in the suit land. The above said registered sale deed is void, illegal and ab-initio and not binding on the plaintiff. Late Vadde Basappa was not the exclusive owner of the suit land to alienate it or deal with it in any manner. Hence, the plaintiff has been left with no option except approach this Hon’ble Court for partition of the suit land.
3 (i)On the other hand D1 and D2 filed written statement by admitting all the averments made in the plaint and prayer this Court to decree the suit of plaintiff without costs.
(ii)D3 and D4 filed a separate written statement and denied all the material contention of the plaint. The defendant No.3 admitted fact that the relation between the plaintiff and D3. Further submitted that plaintiff and D1 to
D3 are not the members of the joint family, suit scheduled property is the self acquired property of Late father and he alienated the same during his lifetime in favour D4 for the family needs since then D4 is in possession of the suit land without any interruption from any body. Further submitted that plaintiff has got full knowledge about the possession of the D4 over the suit land. Further submitted that D4 obtained bank loan and developed the suit land by cultivation. Since the suit land was not an ancestral property and also not a joint family property. Therefore, suit of the plaintiff was not maintainable and
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liable to be dismissed.
(iii) D4 filed written statement submitted that by denying all the averments made in the plaint and also denied the plaintiff and D1 to D3 are members of undivided Hindu family. Further submitted that father of the plaintiff alienated the suit land in his favour through registered sale deed dated 22.03.2000 for family needs and the said document was also attested by D3 and the possession of the suit land was also delivered to him and his name recorded in all revenue records as owner, pattedar passbook and title deed are also issued in his favour. D4 obtained bank loan by creating equitable mortgage.
Further submitted that since date of purchase he is in exclusive possession of the suit land without any interruption, openly and independently to the knowledge of the plaintiff and defendants. Further submitted that plaintiff excluded from the joint family and he is out of the possession. The suit land is not a joint family property, D4 is in possession of suit land from the last 14 years. Therefore, suit filed by plaintiff is not maintainable.
4. Basing on the pleading and documents of the both sides my predecessor framed the following issues on 07.12.2015.
i) Whether the plaintiff entitle for partition of suit scheduled property as prayed for?
ii) To what extent/relief?
5. To prove the claim of the plaintiff, he himself examined as PW-1 and
Exs.A1 to A5 marked a part from pw2 adduced evidence. On behalf of the defendants, defendant No.4 is examined as DW-1 got marked Exs.B1 to B19 marked apart from DWs.2 and 3 are adduced their evidence. All the testimonies of PWs.1 and 2, DWs.1 to 3 are much available on record in the
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form of deposition on the same are not reproduced here to avoid repetition.
This Court carefully gone through the testimonies of parties and material on record.
Issue No.1:
6. Before answering the issue No.1, firstly what is ancestral property and what are the conditions to be called as ancestral property has to be discussed for better appreciation of facts on record in order to determine the
Issue No.1.
Ancestral Property: it must be satisfy the following conditions:
i) The property should be 4 th generation old.
ii) It should not have been divided by users in the joint Hindu family, as once a division of property take place, the share or portion which each co-parcener gets after the division becomes his/herself acquired property.
iii) The right to a share in ancestral or co-parcenary property accrues by birth itself, unlike other forms of inheritance.
iv) The rights in ancestral property are determined per stripes and not per capita. Share of each generation is first determined and the successive generations in turn sub divide what has been inherited by their respective predecessor.
v)Properties inherited from mother, grandmother, uncle and even brother is not ancestral property. Property inherited by will, or gift, or any individual grant are not ancestral properties.
vi) Self acquired property can become ancestral property if it is thrown into the pool of ancestral properties and enjoyed in common.
vii) Property gifted by a father to his son could not become ancestral property in the hands of the son simply by reason of
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the fact that he got it from his father.
7. In this regard as stated above, the plaintiff examined himself as
PW.1 and filed his chief examination affidavit with similar averments that are made in the plaint. In further chief examination of PW.1 Exs.A1 to A5 marked.
Ex.A1 is the certified copy of pahani for the year 2000-01. Ex.A2 is the certified copy of sale deed vide document No.600/2000. Ex.A3 is the certified copy of pahani for the year 1974-75. Ex.A4 is the certified copy of Pahanies for the year 1957-58, 1956-57, 1955-56. Ex.A5 is the original Druvikarna Pathram issued by Tahsildar, Bomraspet dated 15.02.2022 are filed before this Court.
8. After closure of the evidence on the side of the plaintiff, on the side of the defendants, the defendant No.4 himself filed chief examination affidavit with the similar averment made in the written statement. in furtherance of chief examination DW.1 Exs.B1 to B19 marked. Ex.B1 is the original registered sale deed vide document No.600/2000. Ex.B2 is the original pattedar passbook.
Ex.B3 is the annexure I-B ROR. Ex.B4 is the certified copy of Pahani for the year 1999-2000. Ex.B5 is the certified copy of Pahani for the year 2000-01. Ex.B6 is the certified copy of Pahani for the year 2001-02. Ex.B7 is the certified copy of
Pahani for the year 2003-04. Ex.B8 is the certified copy of Pahani for the year 2004-05. Ex.B9 is the certified copy of Pahani for the year 2005-06. Ex.B10 is the certified copy of Pahani for the year 2006-07. Ex.B11 is the certified copy of
Pahani for the year 2007-08. Ex.B12 is the certified copy of Pahani for the year 2009-10. Ex.B13 is the Adangal pahani for the fasli year 1421. Ex.B14 is the
Adangal pahani for the fasli year 1422. Ex.B15 is the Adangal pahani for the fasli year 1423. Ex.B16 is the Adangal pahani for the fasli year 1424. Ex.B17 is the Adangal pahani for the fasli year 1427. Ex.B18 is the pahani for the year
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2020. Ex.B19 is the original E-pattedar passbook and title deed.
9. In the present suit, since the plaintiff prosecuted this suit seeking the relief of partition and separate possession of the suit scheduled property with metes and bounds among the plaintiff and defendants equally, and to allot 1/3rd share to the plaintiff and defendants, the initial burden is on the plaintiff to prove the suit schedule property is joint family property and that the plaintiff and defendants are in joint possession of suit scheduled property as on the date of filing of this suit and the suit scheduled property is available for partition along with defendants. Since the plaintiff filed the present suit he has to stand or fall on the evidence adduced by him without depending upon the weakness in the case of the defendants, if any.
10. The contention of the plaintiff is that suit land is the ancestral property after death of his father, he and D1 to D3 are in joint possession over the suit scheduled property when he demanded the D1 to D3 for partition of suit land they did came forward for partition, later he came to know his late father Vadde Basappa in collusion with D3 got executed registered sale deed
No.600/2000 in favour of D4 in order to avoid his legitimate share. Since the suit land is the ancestral property plaintiff being one of the coparcener of the
Hindu undivided joint family entitle for 1/3rd share in the suit land along with defendants. The D1 and D2 sailed on par with the plaintiff.
11. The contention of D3 is that plaintiff and D1 to D3 are not the members of the joint family and the suit land is the self acquired property of the his late father Vadde Basappa and he alienated the suit land during his lifetime in favour of D4 for family needs. Since then D4 is in possession over the suit
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land without any interruption and his possession never questioned by any member of the family.
12. It is the contention of D4 is that plaintiff and D1 to D3 are not in member of Hindu undivided joint family. Further contended that late father of the plaintiff and D1 to D3 alienated the suit land in his favour vide registered document No.600/2000 dated 22.03.2000 since then he is in possession over the suit land. Further contended that suit land is not in joint family property he is in possession from the last 14 years. Therefore, questioning of claiming 1/3rd share of plaintiff does not arise.
13. Heard the arguments of learned counsel for the plaintiff and defendants. Perused the record along with oral and documents of both sides. To prove the plaintiff case he filed chief examination affidavit and examined as
PW.1 Exs.A1 to A5 are marked through him apart from that PW-2 adduced evidence on his behalf. PW-1 deposed in support all contention of the plaint.
During the cross examination PW-1 admitted that suit land belongs to his grand father Malkappa further admitted that after demise of his grand father his father got mutated the suit land in his favour. Ex.A1 is the CC of Pahani for the year 2000-01. It discloses that father of plaintiff is the pattedar and possessor of the suit land. During the cross examination PW-1 admitted that he do not know whether Ex.A1 reflect the inheritance of the suit land in favour of his father after demise of his grand father. To prove the suit land ancestral property plaintiff has to prove that his father inherited the suit land by way of succession.
Admittedly, plaintiff did not file any document to show father of the plaintiff inherited the suit land from his grandfather by way of succession. If the father of the plaintiff inherited the suit land by way of gift/will from his grandfather
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then the suit land was no more ancestral property. Admittedly, plaintiff did not file any document to show that his father inherited the suit land either by succession or by way of gift/will from his grandfather. Further more, PW-1 admitted that he did not file any mutation proceeding issued by the Revenue authorities in favour of his father mutating the suit land. During the cross examination PW-1 admitted that his father was the Kartha of his family but denied the suggestion his father being Kartha of his family got executed the registered sale deed vide document No.600/2000 in favour of D4 by receiving total sale consideration of Rs.20,500/- and delivered the possession in his favour, further admitted that basing on the execution of Ex.A2 D4 got mutated the suit land in his favour and also issued pattedar passbook and title deed by the concerned revenue authorities. PW-1 denied the suggestion since the execution of Ex.A2 D4 is in the possession of the suit land. Further submitted that he is in possession over the suit land. Further admitted that himself and D1 to D3 are in physical possession of the suit land but failed to produce any documents before this Court to show that they are in joint possession over the suit schedule property. To claim the suit land as joint family property it must be establish that suit land stands one among them. Admittedly, plaintiff did not file any documents to that extent. During the cross examination PW-1 admitted that Ex.A5 obtained about 7/8 years ago but he did not file before this Court till the closure of evidence of both sides. Further admitted that he did not obtained
CC of Sethuwar to show that the old Sy.No.89 was changed to Sy.No.192.
Admittedly, PW-1 file Exs.A3 to A5 after closure of evidence on both sides and denied the suggestion that after hearing the defense evidence to fill up the lacuna he filed Exs.A3 to A5. PW-1 further admitted that he obtained the Exs.A3 and A4 in the year 2019 and Ex.A5 about 7 or 8 years ago upon perusal of
Ex.A5 he obtained on 15.02.2022, but he did not choose to file those
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documents at the time of his evidence but he filed the above said document after closure of evidence on both sides at the arguments stage. The conduct of the plaintiff shows that he filed the Exs.A3 to A5 after hearing defense evidence at the stage of arguments to fill up the lacuna. During the cross examination
PW-1 further admitted that Ex.A3 is not related to his case.
14.On the other hand D4 himself examined as DW-1 and in support of his case Exs.B1 to B19 are marked through him. Ex.B1 is the original registered sale deed executed by late father of the plaintiff and D1 to D3 in favour of D4 with regard to suit land for a total sale consideration of Rs.20,500/-. Ex.B2 is the original pattedar passbook of DW-1. It discloses that DW-1 was the owner and possessor of the suit land. Ex.B3 is the annexure I-B ROR. It discloses that
DW-1 is the pattedar of the suit land. Exs.B4 and B5 are the CC of Pahanie from the year 1999 to 2001. It discloses that late father of plaintiff was the pattedar and possessor of the suit land. Exs.B6 to B12 are the CC of pahani from the year 2001 to 2010. It discloses that DW-1 is the pattedar and possessor of the suit land. Ex.B13 to B16 are the CC of Adangal pahani from the Fasli 1421 to 1424. It discloses that DW-1 was the pattedar and possessor of the suit land.
Ex.B17 is the CC of pahani for the Fasli 1427. It discloses that DW-1 is the pattedar and possessor of the suit land. Ex.B18 is the CC of Pahani for the year 2020. It discloses that DW-1 is the pattedar and possessor of the suit land.
Ex.B19 is the original pattedar passbook and title deed of DW-1. It discloses that DW-1 is the owner and possessor of the suit land.
15.When comes to the case on hand it is the contention of the plaintiff suit land is the ancestral property and he along with D1 to D3 are in joint possession of the suit land, the burden lies on the plaintiff to prove that the suit
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land is an ancestral property of the plaintiff and D1 to D3. To proved the same plaintiff did not choose to file any document in order to establish that the suit land is an ancestral property. However, as already noted above to be called an ancestral property the property should be four generation old. But the PW-1 not even proved it was three generation property. It is orally pleaded that it was an ancestral property of PW-1, none of the documents filed by them to prove the suit land was an ancestral property. Unless producing the cogent and reliable evidence to prove his contention, the case setup by him cannot be considered.
16.Further more, Ex.A2 clearly shows that late father of plaintiff executed a registered sale deed bearing No.600/2000 in favour of D4 for consideration of Rs.20,500/- further shows that D3 appended his signature on the above sale deed as witness. For a while, it is presumed that the late father of plaintiff and D3 secretly alienated the suit land in favour of D4 till filing of the suit PW-1 did not taken any steps for cancellation of the above said registered sale deed. Further more, the above said registered sale deed executed in the year 2000 and his father died about 8 years prior to filing of the suit. But plaintiff/PW-1 did not demanded for partition during the lifetime of his late father and father of D1 and D2. Surprisingly, plaintiff file the suit for partition after demise of his father and father of D1 and D2. Plaintiff/PW.1 further contended that suit land is the joint family property. Admittedly, PW-1 never been in physical possession of the suit land. He contended that he along with
D1 to D3 are in joint possession of the suit land. Whereas, PW-1 failed to produce any documents to show the suit land stands on the name of one among them. Admittedly, as per Exs.B1 to B3 and B6 to B19 the name of the DW-1 reflecting as the owner and pattedar of the suit land. So, DW-1 has been possession over the suit land till filing of the suit. Exs.B4 and B5 are the CC of
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Pahanies from the year 1990 to 2001 it clearly shows that late father of plaintiff is the owner and possessor of the suit land, in the year 2000 late father of PW- 1 executed Ex.B1 in favour of D4 and D3 appended his signature as witness to the Ex.B1. Based on Ex.B1, DW-1 got mutated his name in the revenue records since then all revenue records i.e., Exs.B1 to B3 and B6 to B19 are reflecting the name of DW-1 as owner and pattedar. Ex.B1 executed in the year 2000 plaintiff/PW-1 without taking any steps for cancellation of Ex.B1 he file the present suit for partition in the year 2014 after demise of his late father and father of D1 and D2. Further more, PW-1 failed to disprove Exs.B1 to B19 produced by DW-1 are false, contrary to that he did not file any better document to establish his joint possession over the suit land.
17.With the above discussion plaintiff is not entitle the relief as prayed for, plaintiff failed to discharge his initial burden proving the case since the onus of proof is on the plaintiff to make over his case. Further having gone through the facts of the case on hand the specific contention of the plaintiff is that himself and D1 to D3 are the joint owners of the suit land without their consent their late father executed the registered sale deed in favour of D4. To substantiate the case of the plaintiff, neither placed any documents showing suit land is the joint family property of the plaintiff nor adduced any evidence to support the contention of the plaintiff.
18.As already mentioned above that condition to be called as ancestral property, whereas plaintiff did not adduced his evidence either oral or documentary evidence to establish the suit land is the ancestral property to claim the rights over it. Therefore, plaintiff failed to prove suit land are the joint family property or ancestral property to claim the shares or rights over the suit land.Accordingly, issue No.i answered.
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19.Issue No.2:
In view of above finding in Issue No.1, the suit is deserved to be dismissed.
In the result, the suit is dismissed. No costs. If any miscellaneous applications pending, shall stand closed.
Typed to my dictation by the typist on computer, corrected and pronounced by me in the open Court, this the 21 st day of March, 2024.
JUNIOR CIVIL JUDGE,
KODANGAL
Appendix of Evidence Witnesses Examined
For Plaintiff:For Defendants:
PW-1: Vadde Chinna Narsimulu DW-1 : Vadde Kistappa PW-2: Vadde Ananthaiah DW-2 : Dandla Ramulu DW-3 : Bonkur Kistappa.
Documents Marked
For Plaintiff:
Ex.A1 is the certified copy of pahani for the year 2000-01.
Ex.A2 is the certified copy of sale deed vide document No.600/2000.
Ex.A3 is the certified copy of pahani for the year 1974-75.
Ex.A4 is the certified copy of Pahanies for the year 1957-58, 1956-57, 1955- 56.
Ex.A5 is the original Druvikarna Pathram issued by Tahsildar, Bomraspet dated 15.02.2022.
For Defendants:
Ex.B1 is the original registered sale deed vide document No.600/2000.
Ex.B2 is the original pattedar passbook.
Ex.B3 is the annexure I-B ROR.
Ex.B4 is the certified copy of Pahani for the year 1999-2000.
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Ex.B5 is the certified copy of Pahani for the year 2000-01.
Ex.B6 is the certified copy of Pahani for the year 2001-02.
Ex.B7 is the certified copy of Pahani for the year 2003-04.
Ex.B8 is the certified copy of Pahani for the year 2004-05.
Ex.B9 is the certified copy of Pahani for the year 2005-06.
Ex.B10 is the certified copy of Pahani for the year 2006-07.
Ex.B11 is the certified copy of Pahani for the year 2007-08.
Ex.B12 is the certified copy of Pahani for the year 2009-10.
Ex.B13 is the Adangal pahani for the fasli year 1421.
Ex.B14 is the Adangal pahani for the fasli year 1422.
Ex.B15 is the Adangal pahani for the fasli year 1423.
Ex.B16 is the Adangal pahani for the fasli year 1424.
Ex.B17 is the Adangal pahani for the fasli year 1427.
Ex.B18 is the pahani for the year 2020.
Ex.B19 is the original E-pattedar passbook and title deed.
SUIT SCHEDULE PROPERTY
The suit land bearing Sy.No.192/RU dry to an extent of Ac.02-37 gts situated at Yenkepally Village, Bomraspet Mandal, Vikarabad District is bounded by:
East:Land of Golla Mallaiah.
West:Land of Vadde Sadanandam.
North:Land of Vadde Baddarappa.
South:Land of Vadde Balaiah.
JUNIOR CIVIL JUDGE,
KODANGAL