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IN THE COURT OF THE ADDITIONAL SENIOR CIVIL JUDGE,
MADANAPALLE.
Present : Sri I.Srinivasa Murthy,
Additional Senior Civil Judge,
Madanapalle.
Monday, the 6th (Sixth) day of December 2021.
O.S.No.108 of 2007 and O.S.No.69 of 2010
O.S.No.108/2007:
Between:
1. Yagavapalli Narasimhulu
... Plaintiff.
And:
1. Thutla Akkulappa (died),
2. Thutla Venkatramana,
3. Marrennagari Venkatramana,
4. T.Venkatramana,
5. T.Ramanamurthy,
6. T.Jayanna,
7. T.Gopalu,
8. J.Amaravathi,
9. T.Krishnappa.
10. Derangula Venkatramana.
Defendants 4 to 9 are the legal heirs of the deceased 1st defendant and they are added as per the orders passed in I.A.No.706 of 2016 dated 19.10.2016.
10th defendant is added as per the orders in I.A.No. 147 of 2018
dated 25.10.2018.
.. Defendants
O.S.No.69/2010:
Between:
Marrennagari Venkatramana ….Plaintiff.
And:
1. Deerangula Venkatramana,
2. Thutla Akkulappa, (Died)
3. Thutla Venkatramana,
4. Yegavapalle Narasimhulu,
5. Thutla Venkatramana,
6. Thutla Gopalu, 2
7. Thutla Krishnamurthy,
8. Thutla Ramamurthy,
9. Thutla Jayappa,
10. Smt. Amaravathi.
Defendants 5 to 10 are the legal heirs of the deceased 2nd defendant and they are added as per the orders in I.A.No.122 of 2019
dated 31.07.2019.
…..Defendants.
These suits are coming on 17-11-2021 before me for final hearing in the presence of Sri K.Manjunatha Reddy, Advocate for the plaintiff; and of Sri Y.Sambasiva Reddy, Advocate for 2nd defendant; Sri S.Vijaya Kumar, Advocate for 3rd defendant; defendants 4 to 10 remained ex parte; 1st defendant died during pendency of suit in
O.S.No. 108 of 2007; Sri S. Vijaya Kumar, Advocate for the plaintiff;
and of Sri K.Manjunatha Reddy, Advocate for the 4th defendant; and of Sri Y.Sambasiva Reddy, Advocate for the defendants1 and 3; the defendants 5 to 10 having remained ex parte; and upon hearing the arguments on both sides, and upon perusing the material on record, and having stood over for consideration this day, this Court delivered the following:
C O M M O N J U D G M E N T
Plaint “A” schedule property in O.S.No.108 of 2007 and plaint schedule property in O.S.No.69 of 2010 is one and the same, which is an extent of Ac.3.25 cents in S.No.85 consisting of two tamarind trees, two neem trees and one Allaneredu tree situated at
Angallu revenue village, which would be referred to hereinafter as 'plaint schedule property'. Plaint “B” schedule property in O.S.No.108 of 2007 is part of the plaint schedule property.
02.O.S.No. 108 of 2007 is filed for partition of the plaint schedule property and allotment of 2/3rd share, which is shown as ‘B’ schedule property therein, to the plaintiff by name Yagavapalli
Narasimhulu and for permanent injunction, restraining the third defendant from interfering with the plaintiff’s peaceful possession and enjoyment over the plaint ‘B’ schedule property therein and for costs.
O.S.No. 69 of 2010 is filed by Marrannagari Venkatramana, who is D3
3 in O.S.No. 108 of 2007, for partition of the plaint schedule property and to allot Ac.2.16 cents to him and for costs.
FACTS IN O.S. No. 108 of 2007
03.Brief averments of the plaint, in brief, are as follows:-
Originally the suit is filed against D1 to D3, who are Thutla
Akkulappa, Thutla Venkatramana and Morrennagari Venkatramana.
During pendency of the suit, D1 died and his legal heirs are brought on record as D4 to D9. 10th defendant is subsequently added being the purchaser of some extent of the land.
04.Brief averments of the amended plaint are as follows:-
(i)One late Morrennagari Ramaiah had two sons by name
Morrennagari Siddappa and Morrennagari Kondappa, who constituted
Hindu joint family. Siddappa and Kondappa are having half share each in the plaint schedule property. Siddappa had three sons by name Peddanna, Peddaramanna and Chinna Ramanna. Chinna
Ramanna is the father of the third defendant (plaintiff in O.S.No.69 of 2010). All the three sons of Siddappa are having 1/6th share each in the plaint schedule property. Morrennagari Kondappa had one daughter by name Nagamma who was entitled to half share in the plaint schedule property. Chinna Ramanna (father of D3) sold away his undivided 1/6th share to the second defendant under a registered sale deed dated 04.02.1971. Peddanna sold away his 1/6th undivided share to D1 under a registered sale deed dated 03.05.1972. Thus, defendants 1 and 2 are having undivided 1/6th share in the plaint schedule property.
(ii)Plaintiff purchased 1/6th share of Pedda Ramanna from the vendors of his wife after the death of Pedda Ramanna, who died issueless, leaving behind his wife alone. Plaintiff also purchased 4 undivided half share in the entire plaint schedule property from the vendees of Kondappa and her sole daughter Nagamma and the wife of
Kondappa. Thus, plaintiff is entitled to 2/3rd undivided share in the schedule property. Plaintiff demanded defendants 1 and 2 for partition of the schedule property but, defendants 1 and 2 refused for amicable partition and on the other hand they are trying to sell away their 1/3rd share in the plaint schedule property to third parties by fixing boundaries. Third defendant had no right or title in the entire plaint schedule property except the status as the son of Chinna
Ramanna who is the vendor of the second defendant in respect of his 1/6th share. Third defendant had no manner of right whatsoever in the schedule property, but he is openly proclaiming that he has got right and he is trying to sell away the land which is in possession and enjoyment of the plaintiff. Plaintiff came to know that 10th defendant has purchased an extent of 423.5 squire yards from defendants 1 and 2 under a registered sale deed, and therefore 10th defendant is shown as a party to the suit as he is having joint share and he has no right to purchase the land with fixed boundaries. Hence, the suit.
05.Defendants 1 and 2 filed their common written statement partly admitting the relationship as stated by the plaintiff and the genealogy, denying other averments made in the plaint and, inter alia, alleging as follows:- First defendant purchased 1/6th share of
Morrennagari Peddanna under a registered sale deed dated 03.05.1972 and defendants 1 and 2 are entitled to 1/6th share out of the total extent of the suit schedule property. It is incorrect to state that the schedule property is not divided by metes and bounds and that the plaintiff is in joint possession of his 2/3rd share along with defendants 1 and 2. It is also incorrect to state that defendants 1 and 2 are trying to sell away 1/3rd share to the third parties by fixing 5 boundaries. It is also incorrect to state that plaintiff is in possession of plaint ‘B’ schedule property out of plaint schedule property. Third defendant has no manner of right or title in the plaint schedule property. Plaint ‘B’ schedule property is incorrect. The schedule property was divided long back and the predecessors-in-title of defendants 1 and 2 and the other sharers got divided the schedule property more than 30 years back and since then they have been in separate possession and enjoyment of their respective extents by forming ridges. Both defendants 1 and 2 are having 1/3rd joint right in two tamarind trees, three neem trees and one Allaneredu tree and the said trees are being enjoyed jointly. Defendants 1 and 2 sold away the extent of Ac.0.08 ¾ cents to 10th defendant within the specified boundaries. There is no cause of action for filing the suit. Hence, the suit is liable to be dismissed.
06.Third defendant filed his separate written statement and he also filed additional written statements as and when the plaint was amended from time to time.
07.The averments in the written statements filed by third defendant, in brief, as follows:-
(i)The plaint schedule property originally belonged to one
Siddappa, who is no other than the grandfather of the third defendant. Siddappa had three sons by name Marrennagari
Peddanna, Marrennagari Pedda Ramanna and Marrennagari Chinna
Ramanna. All the three sons are having 1/3rd share each in the schedule property. Chinna Ramanna sold away an extent of Ac.0.54 cents i.e., 1/6th share to his elder brother Pedda Ramanna under a registered sale deed dated 18.05.1961 and he also sold away his remaining 1/6th share i.e., Ac.0.54 cents to the second defendant under a registered sale deed dated 04.02.1971. He sold the joint 6 shares only under those two documents. Therefore, it is not correct to state that plaintiff purchased 2/3rd share in the plaint schedule property from its rightful owners. The vendors of the plaintiff are not having any share or right in the schedule property and even if any documents are obtained, they are not valid documents.
(ii)3rd defendant filed O.S.No. 192 of 2007 on the file of the court of First Additional Junior Civil Judge, Madanapalle for partition and the same was re-numbered as O.S.No.69 of 2010 in this court after its transfer. Plaintiff is shown as 4th defendant in the said suit.
Plaintiff is not in joint possession and enjoyment of the suit schedule property. First defendant is also having one more son by name
Krishnappa and his name is not mentioned in the plaint and therefore the suit is bad for non-joinder of necessary parties. In fact, Morreppa had three sons by name Ramaiah, Kondappa and Siddappa but, in the plaint it is shown that Morreppa was having only two sons. Plaintiff is not having any cause of action to file the suit claiming partition.
Hence, the suit is liable to be dismissed.
08.Other defendants remained ex parte in the suit.
09.This court on 29.10.2021 recast the issues, which are as follows:
i)Whether the plaintiff is entitled for 2/3rd share in plaint ‘A’ schedule property and for allotment of ‘B’ schedule property towards 2/3rd share?
ii)Whether the plaintiff is entitled for permanent injunction against D3?
iii)To what relief?
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FACTS IN O.S. No. 69 of 2010
10.Initially this suit is filed against D1 to D4 and during pendency of the suit, D2 died and his legal heirs are brought on record as D5 to D10.
11.Brief averments of the amended plaint are as follows: -
Originally Siddappa acquired the plaint schedule property and he got three sons by name Peddanna, Pedda Ramanna and Chinna Ramanna.
The schedule property was enjoyed by all the three brothers during their lifetime. After demise of Siddappa, three sons enjoyed the schedule property with equal shares. Plaintiff is the son of Chinna
Ramanna, who is the third son of Siddappa. The father of the plaintiff sold away his 1/6th undivided share i.e., an extent of Ac.0.54 cents along with other properties to his brother Pedda Ramanna under a registered sale deed dated 18.05.1961 and he also sold his remaining extent of 1/6th undivided share i.e., Ac.0.54 cents to third defendant under a registered sale deed dated 04.02.1971. Third defendant is no other than the son of second defendant. Second defendant purchased joint share of an extent of Ac.0.54 cents from Peddanna under a registered sale deed dated 03.05.1972. Thus, D2 and D3 are having 1/6th undivided share each in the schedule property. Peddanna died issueless and his wife Papulamma is also no more. Thus, plaintiffs succeeded to an extent of 1/6th undivided share of Peddanna, which is an extent of Ac.0.54 cents in the suit survey number. The other senior paternal uncle of plaintiff by name Pedda Ramanna also did not beget any children and hence plaintiff looked after him. Even during his lifetime, plaintiff cultivated the entire land including the joint share of
Pedda Ramanna. Pedda Ramanna got his 1/3rd share and 1/6th undivided share purchased by him from the father of the plaintiff.
Thus, he got undivided joint share of Ac.1.62 cents and plaintiff has 8 succeeded the said property also including the property of Peddanna , which is an extent of Ac.0.54 cents and thus plaintiff is having Ac.2.16 cents undivided share in the schedule property. Defendants 2 and 3 got only joint share in the schedule property to an extent of Ac.1.08 cents only together and the remaining Ac.2.16 cents belongs to the plaintiff and the properties are undivided. Therefore, defendants 2 and 3 do not get any extent more than Ac.1.08 cents together in the schedule property. But, defendants 2 and 3 and the 4th defendant who is not having any share in the schedule property have been claiming the suit schedule property and they did not cooperate for partition.
Hence, the suit for partition and allotment of Ac.2.16 cents to the plaintiff in the schedule property.
12.D1 filed written statement denying the material averments in the plaint and, inter alia, alleging as follows:- Defendants 2 and 3 sold an extent of Ac.0.08 ¾ cents to D1 by mentioning the boundaries out of the extent in their possession. It is not correct to say that suit schedule property is in joint possession of the plaintiffs and defendants 2 and 3. First defendant has been in possession and enjoyment of Ac.0.08 ¾ cents purchased by him from defendants 2 and 3 under registered sale deed dated 15.03.2004 and he also laid a foundation to a height of 3 feet from ground level by spending
Rs.30,000/-. Plaintiff has no share or right and he is not in possession of any property. The paternal grandfather of the plaintiff had only half share in the suit property and his brother Chinna Kondappa was entitled to the remaining half share. The 1/6th share of Pedda
Ramanna, who is the second son of Siddappa, was devolved on his wife after his death and she sold away Ac.0.20 cents to Marrennagari
Kondappa and Ramanna and subsequently they sold away 1/6th share to Rajolla Reddeppa. Wife of Kondappa sold away half share in the 9 schedule property to one Nayapu Gopalu and in turn Gopalu sold away Ac.0.75 cents to Rajolla Reddeppa and Ac.0.87 ½ cents to 4th defendant. Defendants 2 and 3, Rajolla Reddeppa and 4th defendant and their predecessors in title got divided the suit land about 30 years back and since then they have been in separate possession and enjoyment of their respective extents by forming ridges and bunds.
Defendants 2 and 3 are in separate possession and enjoyment of four plots towards their extents and they have been in exclusive possession and enjoyment of the said plots by forming ridges. Defendants 2 and 3 are having joint share in two tamarind trees, three neem trees and one Allaneredu tree. Plaintiff has no right in the schedule property.
Hence, the suit is liable to be dismissed.
13.Defendants 2 and 3 filed their common written statement in the same lines as that of the written statement of D-1.
14.4th defendant filed his written statement and amended written statement later, denying the material averments made in the plaint and, inter alia, alleging as follows:- Late Ramaiah had two sons by name Siddappa and Kondappa and plaintiff has suppressed the fact that Ramaiah had two sons. Siddappa and Kondappa were entitled to half share each in the schedule property. Father of the plaintiff sold away his 1/6th share to third defendant under a registered sale deed
dated 04.02.1971 and the second defendant purchased 1/6th share of
Peddanna under a registered sale deed dated 03.05.1972 and since then defendants 2 and 3 were in possession and enjoyment of their approximate shares in the plaint schedule. D4 is entitled to 1/6th share in the plaint schedule along with fruit bearing trees. 4th defendant purchased 1/6th share of Pedda Ramanna from the legal heirs of his wife after the death of Pedda Ramanna, who died issueless leaving behind his wife. The remaining half share of Kondappa and 10 his daughter Nagamma was also purchased under a registered sale deed dated 18.08.2003 from N.Gopalu and others of an extent of
Ac.0.85 ½ cents and joint extent of Ac.1.31 ¼ cents through a registered sale deed dated 02.04.2004 from Rajolla Reddeppa and others. Rajolla Reddeppa purchased the same under a registered sale deed dated 17.07.1965 from Kondappa and his daughter. 4th defendant filed a suit for partition and permanent injunction against defendants 2 and 3 and the plaintiff herein in O.S.No. 108 of 2007 in which temporary injunction is granted. Hence, plaintiff is not at all entitled to the share as claimed by him in the suit and the suit is bad for non–joinder of necessary parties. Hence, the suit is liable to be dismissed.
15.Basing on the above pleadings, the following issues were framed in the court of I Additional Junior Civil Judge, Madanapalle itself before its transfer.
i)Whether the suit is bad for non-joinder and mis- joinder of necessary parties?
ii)Whether the plaintiff is entitled for partition and separate possession of his share in the plaint schedule property or not?
iii)To what relief?
16.The record further shows that on 13.12.2012 O.S.No. 69 of 2010 is consolidated with O.S.No.108 of 2007 and O.S.No. 108 of 2007 is the leading suit in which evidence is recorded. It is also pertinent to mention here that before O.S.No.69 of 2010 is transferred to this court, affidavit in lieu of chief examination of PW-1 was filed therein in the court of I Additional Junior Civil Judge, Madanapalle and since the said suit is now consolidated with O.S.No.108 of 2007 as per the orders dated 13.12.2012 as seen from the suit docket in O.S.No.108 of 11 2007, the said chief examination affidavit filed in O.S.No.69 of 2010 need not be considered, because the common evidence was recorded in O.S.No. 108 of 2007.
17.In order to avoid confusion, the parties hereinafter would be referred to as they are arrayed in O.S.No. 108 of 2007.
18.During trial, plaintiff examined himself as PW-1 and marked Exs.A1 to A10 on his behalf. Contesting defendants examined three witnesses as D.Ws.1 to 3 and marked Exs.B1 to B7 on their behalf. The evidence of DW-3 was eschewed on 11.03.2020.
19.Heard the learned counsel for the plaintiff and the learned counsel for the contesting defendants.
ISSUE NO.1 IN O.S.NO. 108 OF 2007 AND ISSUE NOS. 1 AND 2
IN O.S.NO. 69 OF 2010
Issue No.1 in O.S.No. 108 of 2007
Whether the plaintiff is entitled for 2/3rd share in plaint ‘A’ schedule property and for allotment of ‘B’ schedule property towards 2/3rd share?
Issue Nos. 1 and 2 in O.S.No. 69 of 2010
Whether the suit is bad for non-joinder and mis-joinder of necessary parties?
Whether the plaintiff is entitled for partition and separate possession of his share in the plaint schedule property or not?
20.These three issues are inter-related and they deal with the question of partition of the plaint schedule property as claimed by the plaintiff and third defendant in their respective suits and, therefore, in order to avoid repetition of facts, these three issues are taken up together.
21.The contention of the learned counsel for the plaintiff is that originally the entire plaint schedule property, which is an extent of Ac.3.25 cents in S.No.85, belonged to M.Ramaiah, who had two 12 sons by name Siddappa and Kondappa, and that those two sons got
Ac.1.62 ½ cents of undivided share each after the death of Ramaiah.
It is further contended that Nagamma is the only daughter of
Kondappa and both of them together sold away their undivided half share in the schedule property to Gopalu under Ex.A4. It is also contended that Siddappa had three sons by name Peddanna,
Peddaramanna and Chinna Ramanna who got 1/6th share each in the schedule property by way of succession from their father Siddappa. It is further contended that Peddanna sold away his 1/6th share, which comes to Ac.0.54 cents, to D1 under Ex.B2 sale deed whereas
Chinnaramanna, who is third son of Siddappa and father of D3, sold away his undivided 1/6th share which comes to Ac.0.54 cents to D2 under Ex.B1. It is further contended that after the death of
Peddaramanna, who is the second son of Siddappa, his wife
Gangulamma sold away an extent of Ac.0.32 cents under Ex.B5 to
Reddeppa and that Reddeppa also purchased all the remaining extents in the schedule property under Exs.A3, A6 and A7, and that plaintiff purchased an extent of Ac.0.85 ½ cents of joint share under
Ex.A1 from Gopalu, Chinna Reddeppa and Ramesh and that plaintiff also purchased another extent of Ac.1.31 ¼ cents under Ex.A2 from
Reddeppa and his sons Gangaraju and Sekhar and thus in all plaintiff purchased undivided share of Ac.2.16 ¾ cents under Exs.A1 and A2.
It is also contended that defendants 1 and 2 are having Ac.0.54 cents each under Exs.B2 and B1 respectively, whereas the plaintiff is having the remaining undivided extent in the schedule property and thus D3 has no property in the schedule property and he has no right to claim any partition because his father Chinnaramanna already sold away his extent to D2 under Ex.B1. It is further contended that even according to the case of D3 in his written statement, D3 admitted 13
Exs.B1 and B2 documents, and that his contention that Siddappa got the entire schedule property is not established by D3 and that all the sale deeds produced by the plaintiff under Exs.A1 to A7 are not denied or disputed by D3 and therefore plaintiff is having 2/3rd share in the schedule property, whereas D1 and D2 together are having 1/6th share each in the schedule property. It is further contended that though D1 and D2 have taken a plea in the written statement that the schedule property was already divided about 30 years back, D2 as
DW-1 has admitted that the properties are being enjoyed jointly by all the parties without any division and that the parties are in approximate possession of their extents only for the purpose of cultivation without any division. It is further contended that even the case of D3 is also that all the properties are undivided. It is also contended that plaintiff has been in possession and enjoyment of plaint ‘B’ schedule property and items 1 and 2 of the plaint ‘B’ schedule property may be allotted to the plaintiff by working out equities.
22.On the other hand, the contention of the learned counsel for D2, D4 to D9 (being the legal heirs of D1) is that even according to the plaintiff and D3, D1 and D2 purchased 1/6th share in the schedule property from Chinnaramanna (father of D3) under Ex.B1 and
Peddaramanna under Ex.B2 respectively and in turn D1 and D2 sold away an extent of Ac.0.08 ¾ cents to D10. It is further contended by him that originally the schedule property belonged to Ramaiah who got two sons Siddappa and Kondappa and both the sons of Ramaiah got undivided half share in the schedule property and that third defendant has no right in the entire schedule property because his father already sold away his undivided 1/6th share under Ex.B1 to D2 14 and that other sharers in the schedule property already sold away their lands.
23.For contra, the contention of the learned counsel for D3 is that the entire schedule property belonged to Siddappa only who is the grandfather of D3 and that Siddappa got three sons by name
Peddanna, Peddaramanna and Chinnaramanna who are having 1/3rd share each in the entire schedule property which comes to an extent of Ac.1.08 cents each. It is also contended that the father of D3
Chinnaramanna sold away 1/6th share in the schedule property under
Ex.B4 to Peddaramanna in the year 1961 itself and his remaining 1/6th undivided share was sold away by Chinnaramanna to D2 under
Ex.B1. He also contended that Peddanna sold away 1/6th share in the schedule property to D1 under Ex.B2. It is further contended that though the father of D3 Chinnaramanna had sold away his entire extent of Ac.1.08 cents to Peddaramanna and D2 and though
Peddanna sold away only 1/6th share in the schedule property under
Ex.B2 to D1, the remaining extent is intact. He further contended that after getting the property under Ex.B4 by Peddaramanna,
Peddaramanna got Ac.1.62 cents undivided share including his 1/3rd share as the 1/6th share of Chinnaramanna was got under Ex.B4 and that Peddanna was having Ac.0.54 cents after excluding his 1/6th share sold under Ex.B2 of D1, and thus both Peddanna and
Peddaramanna got an extent of Ac.2.16 cents in their possession. It is further contended that as Peddanna had no issues and Peddaramanna had also no issues, D3 looked after their welfare and after their intestate death including the wives of Peddaramanna, D3 inherited their property of an extent of Ac.2.16 cents which comes to 2/3rd share in the schedule property excluding the properties purchased by
D1 and D2 under Exs.B2 and B1 respectively and therefore D3 is 15 entitled to 2/3rd share in the schedule property. It is further contended that plaintiff has no right or title over any part of the schedule property because Kondappa had no right in the schedule property to sell away half share along with his daughter Nagamma to
Gopalu under Ex.A4. It is further contended that all the sale deeds produced by the plaintiff are not binding on the third defendant and third defendant is entitled to 2/3rd share, whereas D1 and D2 are entitled to 1/6th share in the schedule property and plaintiff is not at all entitled to any share and therefore the suit of the plaintiff is liable to be dismissed.
24.In view of the rival contentions, it is discerned that the case of the plaintiff is that originally the schedule property belonged to Ramaiah and his sons Siddappa and Kondappa are having half share each in the schedule property, whereas it is the case of the third defendant that the entire schedule property belonged to Siddappa only and Kondappa has no share in the schedule property. In the pleadings, D3 denied the suggestion that Kondappa is the son of
Ramaiah and brother of Siddappa. Therefore, the burden clearly rests upon plaintiff and D3 to prove their respective cases and the plaintiff has to prove that Siddappa and Kondappa got half share in the schedule property as the sons of Ramaiah, whereas it is the burden of third defendant to show that the entire schedule property belonged to
Kondappa only and Siddappa had no share in the schedule property.
Before going into the rival contentions, it is necessary to refer to the
documents filed by both parties initially for better understanding.
Exs.A1 and A2 are the registration extracts of the sale deeds obtained by plaintiff. Under Ex.A1 plaintiff purchased Ac.0.85½ cents of joint right from Gopalu, Chinna Reddeppa and Ramesh and under Ex.A2 plaintiff purchased an extent of Ac.1.31 ¼ cents from Reddeppa and 16 his sons Gangaraju and Sekhar. Under these two documents, plaintiff has been claiming that he purchased the joint extents totaling Ac.2.16 ¾ cents, which he claims to be 2/3rd undivided share in the entire schedule property. Plaintiff produced Exs.A3 to A7 link documents.
Under Ex.A3 sale deed, Reddeppa purchased an extent of Ac.0.22 cents on 07.07.1994 from Ramanna and Kondappa; under Ex.A4
Gopalu purchased an extent of Ac.1.62 ½ cents being the half share in the schedule property from Kondappa and his daughter Nagamma on 17.07.1965. Under Ex.A5 Reddeppa purchased the joint extent of
Ac.0.32 cents from Gangulamma wife of Peddanna on 13.10.1994.
Under Ex.A6 Reddeppa purchased an extent of Ac.0.27 cents from
Nayapu Reddeppa on 14.11.1995. Under Ex.A7 Reddeppa purchased an extent of Ac.0.50 cents from Gopalu on 04.07.1997. Ex.A8 is certified copy of 1-B register. Ex.A9 is Encumbrance certificate from 01.01.1956 to 31.12.1982 which shows that there are several transactions taken place in respect of the schedule property. Ex.A10 is certified copy of 1-B. Exs.B1 and B2 are produced by DW-1 who is the second defendant. Ex.B1 is registered sale deed dated 04.02.1971 executed by the father of D3 Chinnaramanna in favour of D2 for an undivided extent of Ac.0.54 cents being the 1/6th share. Ex.B2 is the sale deed dated 03.05.1972 executed by Peddanna in favour of D1 for an undivided extent of Ac.0.54 cents being the 1/6th share. In fact, in the written statement filed by D3, he admitted Exs.B1 and B2 documents. Exs.B3 to B7 are produced by D3 as DW-2. Ex.B3 is R.H.
extract. Ex.B4 is sale deed dated 18.05.1961 under which
Peddaramanna purchased undivided 1/6th share from Chinnaramanna who is the father of D3. Exs.B5 and B6 are the registration extracts of
Exs.B1 and B2 respectively. Ex.B7 is challan.
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25.As already pointed out, plaintiff has to establish that the schedule property was devolved upon Siddappa and Kondappa equally. D3 has denied the share of Kondappa in his pleadings. In this connection, the evidence of D3 as DW-2 assumes much importance. D3 denied the suggestion that he pleaded in O.S.No. 69 of 2010 that D1 and D2 purchased 1/6th share each in the schedule property under Exs.B2 and B1 respectively. He introduced a new version that his grandfather Siddappa was given a settlement patta for an extent of Ac.3.25 cents, which is the plaint schedule property.
This was not pleaded by the third defendant either in his written statement in O.S.No. 108 of 2007 or in the plaint in O.S.No. 69 of 2010. In his cross examination as DW-2 he deposed that he has no objection to file the original settlement patta issued in favour of his paternal grandfather Siddappa, for the reasons best known to him, he did not produce original settlement patta into court. Therefore, there is no proof to show that the entire schedule property belonged to
Siddappa only.
26.Coming to his further cross examination DW-2 (D3) has totally given a go bye to his pleadings in his written statement and came up with new version that his father Chinnaramanna did not sell any property to D2 under Ex.B1. This is contrary to his pleadings in his written statement as well as his pleadings in the plaint in O.S.No.
69 of 2010. In the evidence, DW2 has denied both the documents under Exs.B1 and B2 and came up with a version that those two documents are created and that his father Peddanna did not sell away any property to D1 and D2. This particular evidence of DW-2 is quite contrary to the pleadings taken by him in the written statement and it clearly appears that in order to get the property in one way or the other, D3 has denied Exs.B1 and B2 also, probably for the reason that 18 plaintiff has produced all the documents including some link documents. He admitted the suggestion put to him that for the first time in his chief examination affidavit he has taken a plea that his father did not execute Ex.B1 in favour of D2. He admitted the suggestion that D10 purchased Ac.0.08 ¾ cents from D1 and D2 under a registered sale deed dated 15.03.2004. But, none of the parties filed the said document into court and D10, for the reasons best known to him, remained ex parte in the suit proceedings.
27.DW-2 denied the suggestion that his paternal grandfather
Siddappa got only half share in the schedule property. DW-2 (D3) specifically deposed at page No.3 of his cross examination that Chinna
Kondappa @ Chinna Pullappa is the son of Ramaiah and Nagamma is the daughter of Kondappa @ Chinna Pullappa. In the pleadings, D3 denied that Kondappa is the father of Ramaiah. But, he clearly deposed in his cross examination that Kondappa is the son of Ramaiah and Nagamma is the daughter of Kondappa. When the third defendant has failed to show that the entire schedule property belonged to Siddappa, it cannot be said that the three sons of
Siddappa got 1/3rd share each in the schedule property. In a suit for partition the burden is on all the parties because each party in a suit for partition is in the nature of plaintiff only. DW-2 further admitted the suggestion that the encumbrance certificate discloses that Gopalu has purchased the property in suit survey number and he sold away the same. He deposed that he paid challan under Ex.B7 to the suit survey number and that Mandal Surveyor visited and measured the land. Those proceedings are not produced before the court.
28.DW-2 further deposed that his father during his lifetime and after his death himself never obtained pattadar pass book and title deed books from revenue authorities. At another place he 19 deposed that the pattadar pass books and title deed pass books are with him and they are kept in his house. But those documents have not seen the light of the day. He also deposed that one M.Akkulappa is his maternal uncle and he purchased all the properties from Ramaiah in the year 1961. But, those documents are not produced by D3.
Moreover, for the first time D3 has deposed in his evidence that
Akkulappa purchased all the properties from Ramaiah. Thus, in order to deny the claim of the plaintiff, D3 has been changing his versions from time to time regarding the origin of title in respect of the plaint schedule property. He brought one Akkulappa into picture during his evidence and deposed that the said Akkulappa purchased all the properties from Ramaiah. He further deposed that Akkulappa is alive, but he did not examine the said person.
29.Another important aspect is that DW-2 (D3) in his evidence has deposed that Ramaiah has got only one son by name
Kondappa @ Pullappa and the said Kondappa got one daughter by name Nagamma. This is totally ridiculous on the part of D3. On one hand he says that Kondappa is not at all the son of Ramaiah and that
Siddappa is the only son of Ramaiah but now he deposed that
Kondappa is the only son of Ramaiah. DW-2 further admitted a suggestion that Kondappa and his daughter Nagamma sold away the property under Ex.A4 in favour of Gopalu. This particular admission made by DW-2 would clinch the entire issue. If really Kondappa has no right in the schedule property and he has no share as deposed earlier by DW-2, it is not known how Kondappa sold away his undivided half share in the schedule property along with daughter to
Gopalu under Ex.A4. As already noticed, DW-2 clearly admitted that
Kondappa is the son of Ramaiah.
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30.DW-2 also deposed that only after obtaining Ex.B3 R.H.
page in the year 2005, he came to know that his name is shown as pattadar in respect of suit schedule survey number and that only after obtaining registered sale deeds by plaintiff in respect of suit schedule property, he obtained Ex.B3 R.H. page in order to know the rightful owners of the schedule survey number. He further deposed that he did not allow the plaintiff and D1 to enter into the schedule property in the year 2007. He also deposed that till 2007 he was never in possession of any extent in the suit schedule property and that only after measuring the suit schedule survey number by Mandal Surveyor, he entered into the suit schedule survey number. He further deposed that he did not enter into the suit schedule survey number till 2007 as his father, grandfather and his brothers sold away their share in the schedule property to Akkulappa. This particular evidence of DW-3 would clearly show that only to somehow knock away the schedule property, D3 for the first time made steps to enter into the schedule property in the year 2007 and till such time he did not enjoy any inch of the schedule property as admitted by him. When D3 deposed that the entire property belonged to Siddappa only, it is incumbent upon him to establish the said fact. The origin of title of Siddappa over the entire schedule property is not at all pleaded by D3 in his entire pleadings. Coming to his evidence, he deposed that Siddappa got the entire schedule property under a settlement patta but the same was not produced before the court. Therefore, there is no iota of evidence on record to show that the entire schedule property belonged to
Siddappa and all the three sons of Siddappa got 1/3rd share each in the schedule property as is the case of D3. For the reasons best known to him, D3 has denied Exs.B2 and B3 also in his evidence, though he admitted the same in his pleadings. But, D3 produced 21
Ex.B4 sale deed executed by his father Chinnaramanna in favour of
Peddaramanna for an undivided 1/6th share in the schedule property.
It is an admitted fact that in all the documents purchased by the parties, only the undivided extents were sold. Though D1 and D2 have pleaded in the written statement that about 30 years back partition took place, coming to the evidence part, DW-1 who is the second defendant, has deposed that all the properties are the joint properties and only undivided shares were purchased. Therefore, it is not in dispute that the schedule property is not divided so far by metes and bounds though the parties are in approximate possession of the extents for the purpose of cultivation.
31.Now it has to be seen whether plaintiff has established his case. The specific case of the plaintiff from the beginning is that the schedule property originally belonged to Ramaiah and that his two sons Siddappa and Kondappa are having undivided half share each in the schedule property. On a perusal of Ex.A4, it is evident that the said Kondappa along with his daughter Nagamma sold away his undivided half share in the plaint schedule property to Gopalu. Ex.A4 is not denied or disputed by D3 who is the mainly contesting defendant and moreover, he admitted the same in his cross- examination. Nothing was attributed to Ex.A4 document by D3. The said document is dated 17.07.1965. Therefore, the said document itself would clarify that Kondappa was having undivided half share in the schedule property and he sold away his entire undivided half share in the schedule property along with his daughter Nagamma to
Gopalu. As already noticed above, D3 coming to his cross examination, has admitted the fact that Kondappa is the son of
Ramaiah and Kondappa and Nagamma together executed Ex.A4 document to Gopalu. Though it was the initial case of D3 that 22
Kondappa is not the son of Ramaiah, in the cross examination, D3 clearly admitted that Kondappa is the son of Ramaiah. According to the plaintiff, D1 and D2, the schedule property originally belonged to
Ramaiah and the nature of the schedule property is ancestral. But,
D3 has pleaded that the schedule property is the exclusive property of
Siddappa who is his grandfather. When the third defendant has taken a specific plea without narrating anything regarding the source of title of Siddappa, the burden is heavy on D3 to establish the said fact. In the entire pleadings, D3 did not whisper anything about the source of title of Siddappa over the entire plaint schedule property. Coming to his evidence, he introduced a new version that Siddappa was allotted a settlement patta for the entire schedule property. But, the said settlement patta was not produced into the court and he did not adduce any evidence in that regard. Therefore, D3 has utterly failed to show that the schedule property is the exclusive property of Siddappa alone. His evidence would also clearly show that only in the year 2007 after coming to know about the purchases made by plaintiff, he obtained Ex.B3 R.H. page and also paid a challan for survey of the schedule property and only since 2007 he has been obstructing the plaintiff and defendants 1 and 2 to enjoy the schedule property, as admitted by him during his cross examination. On the other hand, all the documents produced by the plaintiff would clearly show that
Kondappa was having undivided half share in the schedule property.
When the said fact is established by the plaintiff and when D3 has utterly failed to establish his own case, it can safely be concluded that the schedule property is the property of Ramaiah originally and
Siddappa and Kondappa got undivided half share each therein, as contended by the plaintiff. Exs.A3, A5 to A7 would show that
Reddeppa purchased the extents of Ac.0.22 cents, Ac.0.32 cents, 23
Ac.0.27 cents and Ac.0.50 cents respectively under those documents in the plaint schedule property. All those documents are between 1994 and 1997. Though some of the link documents are not produced by the plaintiff, the fact remains that Reddeppa purchased major extent of property under Exs.A3, A4 to A7 which comes to Ac.1.31 cents and Reddeppa in turn sold away the said extent under Ex.A2. It is an admitted fact that all the documents produced by the parties would show that the property covered by those documents are joint properties but not exclusive properties, though the boundaries are mentioned. It is the evidence of all the parties that only for the sake of cultivation, they have been in possession of their extents approximately. There is no dispute with regard to the said fact.
32.Now it is quite clear that plaintiff purchased an extent of
Ac.1.31 ¼ cents from Reddeppa and his sons under Ex.A2 and he also purchased an extent of Ac.0.85 ½ cents with joint right from Gopalu and others under Ex.A1. The said extent purchased by the plaintiff would come to 2/3rd share in the entire schedule property because the extent comes to Ac.2.16 cents. Hence, the plaintiff is definitely entitled to partition of 2/3rd share in the schedule property by virtue of Exs.A1 and A2 and the link documents under Exs.A3 to A7.
33.Now the next question is whether the purchase made by
D2 under Ex.B1 is valid or not. According to the case of D2, he purchased 1/6th undivided share under Ex.B1 from Chinnaramanna, who got only 1/6th undivided share in the entire schedule property. It is already established that Siddappa was having only undivided half share in the schedule property. Therefore, his three sons Peddanna,
Peddaramanna and Chinnaramanna are having only 1/6th undivided share in the schedule property, even as per the case of D2. D2 says that he purchased the undivided 1/6th share of Chinnaramanna 24 (father of D3) under Ex.B1. But, D3 produced Ex.B4 sale deed which shows that his father Chinnaramanna already sold away his 1/6th undivided share in the schedule property to Peddaramanna. It is not recited in Ex.B4 that after execution of the said extent,
Chinnaramanna was having any land in the schedule property. Even according to D2 also, Chinnaramanna was having only 1/6th undivided share in the schedule property. When Chinnaramanna admittedly sold away his 1/6th share in the schedule property to Peddaramanna under
Ex.B4 on 18.05.1961 itself because Ex.B.4 is not denied or disputed by
D2, D2 cannot get any property under Ex.B1 which is dated 04.02.1971. When Chinnaramanna was having only 1/6th undivided share in the schedule property and when Chinnaramanna already sold away his 1/6th undivided share to Peddanna on 18.05.1961 itself under Ex.B4, D2 cannot get any title under Ex.B1 which is subsequent document, because by the date of Ex.B1, Chinnaramanna had no share possessed in the schedule property because he already sold away his 1/6th share under Ex.B4 to Peddaramanna. It is a settled principle that no person can convey a better title than what he has (nemo dat quod non habet). Therefore, when Chinnaramanna would not be having any right or title over the property covered by Ex.B1,
D2 will not get any right over the same by virtue of Ex.B1. Therefore, question of D2 having any share in the schedule property by virtue of
Ex.B1 does not arise.
34. But, D1 purchased 1/6th undivided share of Peddanna under Ex.B2 which is not in dispute. Therefore, D1 is entitled to 1/6th undivided share in the schedule property and plaintiff is entitled to 2/3rd share in the schedule property. By virtue of Ex.B4, D2 will not get any right and title over the undivided 1/6th share purchased by him under Ex.B1 which is subsequent to Ex.B4.
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35.The next question is what about the remaining 1/6th share in the schedule property. It is the specific case of D3 that he looked after the welfare of Peddanna and Peddaramanna and whatever the property possessed by them is devolved upon him. This particular aspect was not disputed by D1 and D2 or the plaintiff. Peddaramanna originally was having 1/6th share, having been derived from his father
Siddappa, and he also purchased 1/6th undivided share of
Chinnaramanna under Ex.B4. It is evident from the record that the wife of Peddaramanna by name Gangulamma alienated Ac.0.32 cents of land under Ex.A5 to Reddeppa. The other documents are not produced before the court by any of the parties. But, by virtue of
Exs.A1 and A2, plaintiff purchased undivided 2/3rd share in the schedule property. By virtue of Ex.B2, D1 purchased 1/6th share which is now devolved upon D4 to D9 who are the legal heirs of deceased first defendant, who were brought on record during the pendency of the suit. When it is the case of D3 that he looked after the welfare of Peddanna and Peddaramanna and whatever the property possessed by Peddnna and Peddaramanna was devolved upon him as there are no survived legal heirs to them, which is not denied or disputed by either the plaintiff or other defendants, it can safely be said that the property covered by Ex.B4 purchased by
Peddaramanna which is the 1/6th undivided share of the father of D3, was devolved upon him. Therefore, it can safely be said that D3 is having 1/6th undivided share in the schedule property being the remaining extent of Peddaramanna in the schedule property.
36.It is evident from the evidence of DW-2, who is the second defendant, that himself and D1 together sold away an extent of
Ac.0.08 ¾ cents to D10 and DW-2 clearly deposed that he has no objection to pass decree excluding the said extent of Ac.0.08 ¾ cents 26 which is sold by D1 and D2 together to D10. Though the document was not produced before the court, nobody denied the fact that D1 and D2 sold away an extent of Ac.0.08 ¾ cents to D10.
37.Therefore, D4 to D9, who are the legal heirs of D1 and who devolved 1/6th share of Peddanna under Ex.B2, are entitled to undivided extent of Ac.0.45 ¼ cents excluding the undivided extent of
Ac.0.08 ¾ cents sold by them to D10. Thus, it is clear that plaintiff is entitled to 2/3rd undivided share in the schedule property, D4 to D9 being the legal heirs of D1 are entitled to undivided extent of
Ac.0.45¼ cents, D10 is entitled to undivided extent of Ac.0.08 ¾ cents and D3 is entitled to 1/6th undivided share covered by Ex.B4 which is an extent of undivided Ac.0.54 cents.
38.Though it is pleaded by D1 and D2 that the suit is bad for non- joinder of necessary parties, no evidence whatsoever is adduced by any of the parties that some more persons are having any share in the schedule properties. Therefore, it cannot be said that the suit is bad for non – joinder of necessary parties. These three issues are accordingly answered.
ISSUE NO.2 IN O.S.NO. 108 OF 2007: Whether the plaintiff is entitled for permanent injunction against D3?
39.Plaintiff sought for permanent injunction in respect of plaint ‘B’ schedule property, restraining the third defendant from interfering with his possession. But, in the humble opinion of this court, plaintiff cannot claim a particular extent of property when he purchased only undivided share / extents from his vendors. The equities cannot be worked out at this stage and they may be worked out at the time of final decree proceedings if the parties are entitled as per law, by taking into consideration good and bad qualities of the entire plaint schedule property. Therefore, plaintiff cannot claim the 27 relief of permanent injunction against co-sharer. Hence, plaintiff is not entitled to permanent injunction in the present suit because it is already held in the above issues that D3 is also having 1/6th undivided share in the entire plaint schedule property. Injunction cannot be granted against a co-sharer and therefore plaintiff is not entitled to the relief of permanent injunction as prayed for. This issue is accordingly answered against the plaintiff.
ISSUE NO3. IN OS 108 OF 2007 AND O.S.NO. 69/2010
To what relief:
40.In view of the findings of this court on the above issues, plaintiff is entitled to 2/3rd undivided share in the schedule property,
D3 is entitled to 1/6th undivided share in the schedule property, D4 to
D9 are entitled to undivided extent of Ac.0.45 ¼ cents in the schedule property and D10 is entitled to undivided extent of Ac.0.08 ¾ cents in the schedule property. Parties can work out their equities if they are entitled as per law during final decree proceedings taking into consideration the good and bad qualities of the entire plaint schedule property. These issues are accordingly answered.
41.In the result, O.S.No. 108 of 2007 and O.S.No. 69 of 2010 are partly decreed preliminarily as follows:
(i)Plaintiff in O.S.No. 108 of 2007 (D4 in O.S.No. 69 of 2010) is entitled to 2/3rd undivided share in the plaint schedule property.
(ii) Plaintiff in O.S.No. 69 of 2010 (D3 in O.S.No. 108 of 2007) is entitled to 1/6th undivided share in the plaint schedule property.
(iii)D4 to D9 in O.S.No. 108 of 2007 ( D5 to D10 in O.S.No. 69 of 2010) are entitled to undivided extent of Ac.0.45 ¼ cents in the plaint schedule property.
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(iv) D10 in O.S.No. 108 of 2007 (D1 in O.S.No. 69 of 2010) is entitled to undivided extent of Ac.0.08 ¾ cents in the plaint schedule property.
(v)Plaintiff in O.S.No. 108 of 2007 (D4 in O.S.No. 69 of 2010) is not entitled to the relief of permanent injunction and hence the said relief is dismissed.
(vi) All the parties are directed to bear their own costs in both the suits.
Dictated to the Stenographer Grade-II, transcribed by him,
corrected and pronounced by me in open Court, this the 6th day of December, 2021.
Digitally signed SRINIVASAby SRINIVASA MURTHY MURTHY
ISUKAPALLI
ISUKAPALLI
Date: 2021.12.06
14:30:10 +0530 Addl. Senior Civil Judge, Madanapalle,
APPENDIX OF EVIDENCE
Witness examined on behalf of:
Plaintiff:
PW-1: Yagavapalli Narasimhulu.
Defendants:
DW-1: Thutla Venkatramana,
DW-2: M. Venkatramana,
DW-3: Thutla Gopalu (Eschewed on 11.03.2020).
Exhibits marked on behalf of:
Plaintiff:
Ex.A1:Registration copy of sale deed dated 18.08.2003,
Ex.A2:Registration copy of sale deed dated 02.04.2004,
Ex.A3:Registration copy of sale deed executed by Morennagari Ramanna and Morennagari Kondappa in favour of Rajolla Reddeppa dated 07.07.1994, 29
Ex.A4:Registration copy of the sale deed executed by Morrennagari Kondappa and his daughter Nagamma in favour of Nayapu Gopal dated 17.07.1965,
Ex.A5:Registration copy of the sale deed executed by Gangulamma in favour of Reddeppa dated 13.10.1994,
Ex.A6:Registration copy of the sale deed executed by Pedda Reddeppa in favour of Reddeppa, dated 14.11.1995,
Ex.A7:Registration copy of the sale deed executed by Gopalu in favour of Reddeppa dated 04.07.1997,
Ex.A8:Certified copy of 1-B issued by Tahsildar, Kurabalakota in favour of the plaintiff in respect of the suit land,
Ex.A9:Encumbrance certificate issued by the Sub Registrar, Madanapalle for a period from 01.01.1956 to 31.12.1982.
Ex.A10:Certified copy of 1-B / R.O.R.
Defendants:
Ex.B1:Registered sale deed executed by M.Chinna Ramanna in favour of T.Venkatramana dated 04.02.1971,
Ex.B2:Registered sale deed dated 03.05.1972 executed by Peddanna in favour of Akkulappa,
Ex.B3:R.H. Extract issued by Sub Registrar’s office, Madanapalle,
Ex.B4:Original sale deed dated 13.05.1961 executed by M.Chinnaramanna in favour of Peddaramanna,
Ex.B5:Registration copy of the sale deed dated 04.02.1971 obtained by second defendant T.Akkulappa from M.Chinnaramanna,
Ex.B6:Registration copy of the sale deed dated 03.05.1972 obtained by D2 from M.Chinnaramanna,
Ex.B7:Challan.
Digitally signed SRINIVASAby SRINIVASA MURTHY MURTHY
ISUKAPALLI
ISUKAPALLI
Date: 2021.12.06
14:32:20 +0530 A.S.C.J M.P.L.