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IN THE COURT OF THE VI ADDL. DISTRICT JUDGE, GOOTY
Present : Smt. B. Sunita,
IV Addl. District and Sessions Judge-cum- Spl. Judge for Trial of Offences against women, Anantapuramu, FAC – VI Addl. District Judge, Gooty.
Friday the 20th day of March, 2020.
Original Suit No.11 of 2015
Between :
1.D. Jyoshna Kumari,
2.D.Sudarshan,
3.D.Surekha,
4.D.E.C. Vidyasagar
5.Nagamma “died by L.Rs, Plaintiffs 1 to 4 and they are already on record” (Amended as per Orders in I.A.No.1326/2016 Dt.17.11.2016)
6.Venkatalakshmi “died by LR's. Plaintiffs 1 to 4 and they are already on record” (Amended as per Orders in I.A. No.1326/2016 dated 17.11.2016)
... Plaintiffs.
And.,
1.D. Pullaiah,
2.D.Prathap,
3.D.Daivamma,
4.D.Chandrasekhar,
5.D.Lakshmidevi,
6.D. Mahesh,
7.D.Sathish,
8.D. Hymavathi,
9.D.Sujatha.
... Defendants.
This Suit coming on 13.03.2020 before me in the presence of
Sri G. Lakshmipathy, Advocate for the Plaintiff sand of Sri M. Parameswara
Reddy, Advocate for the Defendants No.5 to 7 and the defendants No.1 to 4, 8 and 9 are remained exparte and upon hearing both sides, perusing the records and the matter having stood over for consideration till this day, the
Court delivered the following:-
J U D G M E N T
1.Suit is filed for partition and separate possession of their ½ share in plaint schedule property along with costs and other reliefs.
2.Averments of plaint in brief are that, suit schedule properties are ancestral and joint family properties of plaintiffs and defendants. One 2
Chinna Chenchappa, Hanumappa and Chinnanna are brothers and sons of one Chenchappa. Chinna Chenchappa, the elder brother of the three got separated from joint family by taking his share. Since then Hanumappa and
Chinnanna are in joint possession and enjoyment of suit schedule properties.
As Chinnanna was working in Railways as Diesel Driver, Hanumappa i.e, his brother was looking after suit schedule properties and both of them used to share income derived from suit schedule properties. Both Hanumappa and
Chinnanna died intestate.
Clhinnanna died on 06.12.2003 leaving behind the plaintiffs as his legal heirs. Chinnanna had two wives. Venkatamma was his first wife and through her, he got one son by name Chandrakumar. Said Chandrakumar died intestate leving behind the plaintiffs 1 to 4 as his legal heirs. 1st plaintiff is wife, 2nd and 4th plaintiffs are sons and 3rd plaintiff is daughter of late
Chandra Kumar. Chinnanna married one Nagamma after death of his wife
Venkatamma and through her he got one daughter. Said Nagamma is 5th plaintiff and her daughter is 6th plaintiff.
Hanumappa died leaving behind defendants no.1 to 4 and one
Devadas as his legal heirs. Defendants 1, 2 and 4 are sons and Defendant
No.3 is daughter of late Hanumappa. Devadas, one of the sons of
Hanumappa died intestate leaving behind defendants 5 to 9 as his legal heirs. 5th defendant is wife, 6th and 7th defendants are the sons and the defendants 8 and 9 are the daughters of late Devadas. After the demise of
Hanumappa and his brother Chinnanna, plaintiffs and defendants are in joint possession and enjoyment of suit schedule properties.
Due to misunderstandings between them, defendants are acting adverse to the interest of plaintiffs and intending to cause inconvenience to the plaintiffs. Plaintiffs have made several demands for amicable partition and seperate possession, but defendants did not come forward for amicable 3 partition and separate possession of suit schedule property. Therefore, present suit is filed.
During pendency of the suit, 5th plaintiff namely Nagamma died on 20.07.2016 and 6th plaintiff namely Venkatalakshmi died on 19.8.2016 leaving behind their legal heirs, who are plaintiffs 1 to 4 to succeed to their shares.
Defendants No. 1 to 4, 8 and 9 remained Exparte.
3.Defendant No.5 filed her written statement and the same is adopted by filing memo on behalf of Defendants No.6 and 7. they denied allegations made in plaint, but admitted relationship between the parties. They denied joint possession and enjoyment of the properties and so also sharing of profits and produce. They contended that neither plaintiffs nor their ancestors are concerned with suit schedule property. Originally suit schedule property belonged to one Begani Hanumappa @ Chinna Hanumappa, who is father-in- law of 5th defendant. In fact 2nd defendant filed similar suit in
O.S.No.235/2011 on the file of Junior Civil Judge, Gooty for partition and
separate possession of his alleged 1/5th share in land bearing Sy.No.416-E which is in an extent of Ac.0.86 cents. Item No.2 of present suit schedule is same property as mentioned in O.S. 235/2011.
During the life time of Devana Hanumappa, he executed a will in favour of his son Devana Devadas on 24.7.1975 who is husband of 5th defendant and father of defendants no. 6 and 7. Basing on said will, revenue records were also mutated in the year 2004 itself. They also issued pattadar pass book and title deeds in favour of 5th defendants. Therefore they have been in possession and enjoyment of the property. Devadas died leaving behind defendants, 5 to 8 as his legal heirs and on 12.4.2007 defendants 6 and 7 executed a registered gift deed in favour of 5th defendant and 5th defendant also accepted the gift. Since then she has been in exclusive 4 possession and enjoyment of the suit schedule property without any intererence from any one. The then Tahsildar, Gooty also issued pattadar pass book and title deed, Adangal in favour of 5th defendant. Plaintiffs also filed P.L.C. 79/2011 on the file of Mandal Legal Services, Gooty and the same was dismissed. There is no cause of action. Plaintiffs and defendants no. 1 to 4 colluded with other and filed this suit for wrongful gain. The suit is not maintainable for non joinder of all necessary parties. Hence prayed for dismissal of suit.
4.Basing on pleadings, following issues are settled for trial :
(1)Whether the plaintiffs are in joint possession and enjoyment of the plaint schedule property along with defendants? If not the value of the relief and payment of court fee u/sec.34(2) in stead of U/s 34(1) of A.P.C.F. and S.V. Act is correct?
(2)Whether plaintiffs are entitled for partition and separate possession of half share in the suit schedule property?
(3)To what relief?
5.To prove their respective contentions, on behalf of the plaintiffs, PW.1 and Pw2 are examined and Ex.A.1 and Ex.A.2 are marked. On behalf of contesting defendants, Dw.1 to 4 are examined and Exs.B.1 to B.15 are marked.
6.Heard both sides.
7.Issues No. and 2 :-
Issues No.1 and 2 are answered together for convenience sake as they are inter related. This is a suit filed for partition and seperate possession.
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8.Admitted facts are that, originally one Chenhappa had three sons by names Chinna Chenchappa, Hanumappa and Chinnanna. Plaintiffs are claiming their right and title copled with joint possession though their ancestors Chinnanna, whereas defendants No.5 to 7 are claiming their right, title and possession through Hanumappa who is brother of Chinnanna and father-in-law of defendant no.5 and grand father of D6 and D7.
It is contention of plaintiffs that, originally suit schedule property belonged to one Chenchappa, but no documentary proof is filed. There is no revenue records in the name of Chenchappa. Plaintiffs have filed certified copy of Register of Holdings issued by S.R.O., Gooty relating to Survey
No.46/B and Survey No. 416/E which are two items of suit schedule properties. A perusal of both these documents go to show that, they are in the name of Begari Hanumannagari Chechugadu. Plaintiffs have not taken a plea that, said Chenchappa is also know as Begari Hanumannagari
Chechugadu. In addition a perusal of genealogy filed on behalf of the plaintiffs does not reveal said name. Therefore non filing of documents to show that, suit schedule properties originally belonged to Chenchappa who is ancestor of plaintiffs and defendants is not believed.
Similarly in this case the defendants also have not filed any document to show that originally Hanumappa, who is father in law of Defendant No.5 was original owner of plaint schedule property. Even otherwise, it is for the plaintiffs to prove their right and title and also joint possession in respect of plaint schedule property at their time of filing of the suit to claim partition and seperation of suit schedule properties. To show their joint right, title and possession, plaintiffs have not filed any document as on the date of the suit or of their ancestors at any point of time.
It is not in dispute that under Exs.B.8 to B.12, suit schedule properties are standing in the name of Defendant No.5. The Defendant No.5 is claiming right and title basing on Ex.B.13 which is original will executed by her father 6 in law in respect of Item No.2 of plaint schedule property in the name her husband D. Devadas who is no more. Contention of Defendants No.5 to 7 is that, Hanumappa executed a will in respect of Item No.2 in the name of his son Devadas and in turn after demise of Devadas, Defendants 5 to 7 have been in possession and enjoyment of the property as his legal heirs.
However, Defendants 6 and 7 also executed a registered gift deed under
Ex.B.5 on 12.04.2007 in favour of 5th defendant and she accepted the gift.
Since then she has been in possession and enjoyment of the property by obtaining pattadar pass book and title deed in her name.
9. Though plaintiffs contended that, they have been in possession and enjoyment of plaint schedule property including Items No.1 and 2, a perusal of Ex.A.1 and A.2 show names of Devana Chenchanna, Chenchappa,
Hanumappa, Kristipadu Obanna in respect of Sy.No.416-E for Ac.0.86 cents, and same names in respect of Survey No.46B in an extent of Ac3.19 cents.
There is no evidence to show what are the properties succeeded by Chinna
Chenchanna after partition when he left his father after partitioning his share. It is contention of the plaintiffs that Hanumappa and Chinnanna have been in joint possession and enjoyment of the properties of Chenchappa since their elder brother Chinna Chenchanna took some properties and left for living separately. There is no pleading regarding details of properties in that regard. There is no pleading or evidence as to what are the properties that were standing in the name of said Chenchappa originally. Chinna
Chenchappa is not made a party and so also his legal heirs to this suit. When there is no evidence to show that said Chinna Chenchappa got separated, th suit is bad for non-joinder of legal heirs of Chinna Chenchappa. So also non examination of legal heirs of Chinna Chenchappa to prove that he got separated long back and so also non filing of documentary proof also goes 7 against the case of plaintiffs regarding joint possession of suit schedule properties.
10.It is contention of defendants No.5 to 7 that, Defendant No.2 filed a suit in O.S. No.235/2011 on the file of Junior Civil Judge, Gooty in respect of
Item No.2 of suit schedule property herein and the same was dismissed.
There is no evidence of pendency of appeal on said suit. Similarly defendants also filed P.L.C. No.79/2011 on the file of Mandal legal Services Authority,
Gooty under Ex.B.4 in respect of suit schedule properties. However, the same was also closed. Therefore, a perusal of plaintiffs' evidence reveal that non filing of documentary proof to show their joint possession and so also not impleading legal heirs of Chinna Chenchappa goes against the plaintiffs.
Since joint possession of plaint schedule property is not proved, the payment of Court fee is also not correct.
11.Learned advocate for Plaintiffs relied on a judgment between Guru
Amarjit Singh v. Rattan Chand and others reported in AIR 1994 Supreme
Court, 227 wherein our Hon'ble Apex Court observed that “U/sec. 114
Entries in Jamabandi/Revenue records are not proof of title. Parties have to establish relationship or title to the property. It is a settled preposition of law.
In this case the plaintiffs have failed to prove that the properties originally belonged to their ancestors. Ex.A.1 and A.2 also go to show that, said properties are in the name of Begari Hanumannagari Chenchugadu but not
Chenchappa. At least there is no pleading to show that Chenchappa who is great grand father of plaintiffs was also known as Begari Hanumannagari
Chechugadu. Similarly in the column meant for names shows names of
Devana Chenchanna, Chenchappa, Hanumappa, Kristipadu Obanna.
Therefore, it is not clear as to how much property was standing in their 8 names. Therefore non filing of proper documentary proof goes against the case of plaintiffs.
12.Admittedly in this case the 1st plaintiff is examined as PW.1 and during his cross-examination she admitted that she does not remember names of boundary owners of Items No.1 and 2. If at all the plaintiffs have been in joint possession and enjoyment of the property, they should have been given boundaries of the properties in evidence. PW.1 also admitted that plaint schedule properties were given by Government to one Begari Hanumappa who is no other than brother of her father-in-law. This admission goes to show that, the properties were originally allotted by Government to
Hanumappa. The defendants no.5 to 7 are claiming their title and possession through Hanumappa. It is also admitted by PW.1 that, till the death of Hanumappa he was in possession and enjoyment of suit schedule properties. This admission is sufficient to show that Hanumappa, who is father in law of Defendant No.5 was original owner and since Defendant No.5 is claiming her title and possession of property under Will marked as Ex.B.13 and also under Ex.B.5 Registered Gift Deed, it is concluded that, defendant
No.5 is absolute owner of plaint schedule properties.
In this case the will is not disputed by defendants 1 to 4 who are competent persons to dispute the will of their father. But they have disputed about the execution of Ex.B.13. Therefore, viewed from any angle the admission of PW.1 coupled with non examination of brothers of Late Devadas who are shown as Defendants No.1 to 4 and non disproving of the will under
Ex.B.13 goes against the case of plaintiffs.
In fact, evidence of PW.2 also supported that Defendant No.5 has been in possession and enjoyment of the property. Revenue records are also standing in her name. Therefore, this evidence of PW.1 and 2 also supported the case of Defendants 5 to 7. Defendant No.5 also examined the son of 9 scribe V.S.Rangaswamy of will/Ex.B13 as DW.4 and during his cross- examination nothing is elicited. DW3 is one of the attestors of the Will.
During cross-examination of DW.3 nothing is elicited to disbelieve manner of execution of will.
In this case DW.2 is Tahsildar to speak about Revenue records in the name of 5th defendant and he also admitted that, Revenue records are standing in the name of Defendant No.5. Plaintiffs have not produced any document to show that they have taken steps for cancellation of pattadar pass books and title deeds in the name of defendant No.5. Therefore, non taking steps to get cancellation of pattadar pass books and title deeds in the name of 5th defendant also goes against the case of plaintiffs.
Therefore, with the discussion made above, it is concluded that the plaintiffs have failed to prove their joint possession at any point of time and so also their ancestors. Hence, court fee paid is not correct. Hence Issue no.1 and Isse no2 are answered against the plaintiffs.
15.Issue No.3 :
In the result, Suit is dismissed without costs.
Dictated to the Stenographer, transcribed by him, corrected and
pronounced by me in the open Court on this the 20th day of March, 2020.
Sd/- B. SUNITA
VI ADDL. DISTRICT JUDGE,
GOOTY.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED FOR
Plaintiff :
PW.1 D.Jyoshna Kumari, PW.2 S. Venkatesulu, 10
Defendant :
DW.1 L akshmi Devi, DW.2 C. Munivelu, DW.3 U. Muniswamy, DW.4 R. Sathya Priya Benergy.
EXHIBITS MARKED FOR PLAINTIFFS
Ex.A.1Certified copy of Register of Holding issued by S.R.O., Gooty relating to Sy.No.46-B.
Ex.A.2Certified copy of Register of Holding issued by S.R.O., Gooty relating to Sy.No.416-E.
EXHIBITS MARKED FOR DEFENDANTS
Ex.B.1Certified copy of plaint in O.S. 235/2011 on the file of Junior
Civil Judge, Gooty.
Ex.B.2Certified copy of written statement in O.S. 235/2011 on the file of Junior Civil Judge, Gooty.
Ex.B.3Certified copy of written statement of Defendant No.4 in O.S. 235/2011 on the file of Junior Civil Judge, Gooty.
Ex.B.4Served copy of petition in PLC 79/2011 on the file of M.L.S.C., Gooty.
Ex.B.5Certified copy of Registered Gift Deed dated 12.04.2007.
Ex.B.6Certified copy of Adangal of Item No.2 of the schedule property.
Ex.B.7Certified copy of 1-B Extract of Item No.2 of the schedule property.
Ex.B.8Certified copy of Pattadar Pass Book of item No.2 of the schedule property.
Ex.B.9Certified copy of Title deed of item No.2 of the plaint schedule property.
Ex.B.10Original Adangal of item No.2 of the schedule property.
Ex.B.11Original, B-1 Extract of Item No.1 of the schedule property.
Ex.B.12Original pattadar pass book of item No.1 of the schedule property.
Ex.B.13Will executed by the father in law of DW.1 bequeathing the item No.2 of the suit schedule property to her husband.
Ex.B.14Certified copy of Decree in O.S. 235/2011 on the file of Junior Civil
Judge, Gooty.
Ex.B.15Certified copy of Judgment in O.S. 235/2011 on the file of Junior Civil
Judge, Gooty.
Sd/- B. SUNITA.
VI A.D.J.