1 O.S.118-2012, dated 29.7.2021
IN THE COURT OF THE SENIOR CIVIL JUDGE :: DARSI
PRESENT: Smt K. Sree Devi,
Senior Civil Judge, Darsi
Thursday, this the 29 th day of July, 2021
ORIGINAL SUIT No. 118 OF 2012
Between:
Pabolu Rama Rao S/o. Late Seshaiah, 75 Years, Hindu, Business, Native of East Gangavaram village, Thallur Mandal, Prakasam District, now residing at Door No.10-14-1960, S.R. Nagar, Nizamabad Town and District. … PLAINTIFF Vs., 1Pabolu Koteswaramma W/o. Late Venkata Subba Rao, 66 Years, Hindu, Housewife, R/o.East Gangavaram village, Thallur Mandal, Prakasam Dist. 2Pabolu Venkateswarlu S/o. Late Venkata Subba Rao, 52 Years, Hindu, Business, R/o.Jeans House, Opp.to Vijaya Complex, Kurnool Road, Ongole. 3Pabolu Satyavathi W/o. Late Pabolu Raja Rao, 40 Years, Hindu, Housewife, R/o.D.No.12-20-4, Seetharam Nagar, Kotha Gajuwaka, B.C.Road, Vishakhapatnam. 4Perumallu Durga Sowjanya D/o. late Raja Rao, 21 Years, Hindu, R/o.D.No.12-20-4, Seetharama Nagar, Kotha Gajuwaka, B.C.Road, Visakhapatnam 5Pabolu Kalyani D/o.late Raja Rao, 19 Years, Hindu, R/o.D.No.12-20-4,SeetaramaNagar,Kotha Gajuwaka, B.C.Road, Visakhapatnam. 6Pabolu Srinivasa Rao S/o. Late Venkata Subba Rao, 48 Years, Hindu, Business, R/o.Jeans Park, Jagganna Nilayam, Main road, New Gajuwaka, Visakhapatnam. 7Pabolu Ramu @ Rama Rao S/o. Late Venkata Subba Rao, 45 Years, Hindu, Business, R/o.Jeans House, Opp.to Vijaya Complex, Kurnool Road, Ongole. 8Pabolu Satyanarayana S/o. Late Venkata Subba Rao, 43 Years, Hindu, Business, R/o.Jeans House, Opp.to Vijaya Complex, Kurnool Road, Ongole. 9Pabolu Anjaneyulu S/o. Late Venkata Subba Rao, 40 Years, Hindu, Business, R/o.Jeans Park, Jagganna Nilayam, Main road, New Gajuwaka, Visakhapatnam 10Padmanabhuni Lakshmi Prasanna W/o. Sudhakara Rao, 38 Years, Hindu, Housewife, R/o.C/o.Hari Priya Khadi Bandar, Bapuji Complex, Ongole.
11. Patchipulusu Anjamma W/o.Subba Rao, 72 Years, Hindu, Housewife, R/o.Swarna Village, Karamchedu Mandal, Prakasam District.
12. Ravva Suseela W/o. Late Nageswara Rao, 63 Years, Hindu, Housewife, R/o.Nappatlapadu village, Chimakurthy Mandal, Prakasam District. ** The defendants 11 and 12 are added as per orders … DEFENDANTS in I.A.501/2019, dated 20.1.2020 2 O.S.118-2012, dated 29.7.2021
The suit coming on 23.07.2021before me for final hearing in the presence of Sri G.T.Shiva Sharma, Advocate for the Plaintiff and of
Sri P. Prem Kumar, Advocate for defendants 1, 2, 7, 8 and 10 and the defendants 3 to 6, 9, 11, and 12 set exparte,and upon perusing the material available on record, and upon hearing the arguments and having stood over for consideration to this day, till this day, this Court delivered the the following:-
// J U D G M E N T //
1.This suit is filed for partition of plaint schedule properties be divided into half share to the plaintiff and deliver separate possession of the same to the plaintiff and for costs of the suit.
2.The brief averments of the plaint are as follows;
One Pabolu Seshaiah is permanent resident of East Gangavaram village and he had two sons by name Pabolu Rama Rao, who is the plaintiff and
Pabolu Venkata Subba Rao, who is the husband of 1st defendant and the father of defendants 2 and 6 to 10, grand father of defendants 4 and 5 and father-in-law of 3rd defendant. Plaint A schedule properties are the ancestral properties of Pabolu Seshaiah, he and his two sons were in joint possession and enjoyment of plaint A schedule properties during his life time. After the death of Seshaiah, plaint A schedule properties were devolved upon the plaintiff and his brother Pabolu Venkata Subba Rao by virtue of succession and they are enjoyment of the same jointly as they both of them have got equal share. Ever since the plaintiff and his brother Pabolu Venkata Subba
Rao were in joint and constructive possession of plaint A schedule properties as they are got equal shares. Subsequently, the plaintiff migrated to
Nizamabad to eke-out his livelihood. His brother Pabolu Venkata Subba Rao collected rents from A schedule properties and used to give rents on A schedule properties to the plaintiff towards his share. Thus, the plaint A schedule properties are ancestral properties of plaintiff and defendants.
3 O.S.118-2012, dated 29.7.2021
Subsequently, Pabolu Venkata Subba Rao and plaintiff jointly purchased plaint B schedule property from the earnings of joint family for valuable consideration of Rs.8,500/- from Cheedella Venkata Subbaiah and others and on 10.10.1979 the plaintiff and his brother jointly obtained a register sale deed from Cheedella Venkata Subbaiah and others under document bearing
No.1937/1979 and they duly inducted into the possession of B schedule property. Ever since purchase, the plaintiff and his brother Pabolu Venkata
Subba Rao were in joint possession and enjoyment of the same and he used to take usufruct derived from the plaint B schedule property every year.
While so, the brother of the plaintiff by name Pabolu Venkata Subba Rao died seven months back and leaving the defendants as his legal heirs. After the death of Pabolu Venkata Subba Rao, the plaintiff and defendants are jointly enjoying the suit A and B schedule properties. The defendants also used to give usufruct from plaint B schedule property and also rents from plaint A schedule properties to the plaintiff towards his share. While so, disputes arose between the plaintiff and defendants and the plaintiff has been demanding for partition of his undivided half share in the plaint A and B schedule properties. Though the defendants expressed their willingness for partition, but did not cooperate in affecting partition. The plaintiff learnt that the defendants are trying to execute some sham and nominal documents in their favour in collusion with each other and which is detrimental to the interest of the plaintiff. To achieve their evil desire they got implemented their names in plaint A schedule properties without the consent and knowledge of the plaintiff. When the plaintiff questioned the defendants, they gave evasive reply in order to deprive his half share in the plaint A and B schedule properties. In fact the defendants have no right to execute any documents in respect of the schedule properties ignoring the half share of the plaintiff. Hence, the present suit for partition and separate possession of his half share in the plaint A and B schedule properties.
4 O.S.118-2012, dated 29.7.2021
3.Defendants 1, 2, 7, 8 and 10 contested the suit, 2nd defendant filed his written statement and the same was adopted by the defendants 1, 3, 7, 8 and 10 denied the averments in the plaint except the relationship in between the plaintiff and defendants and further contended that in fact plaint A schedule properties are house properties and the same were stands in the name of 2nd defendant’s father Venkata Subba Rao. Prior to death of father of 2nd defendant’s grand father, the plaintiff left his parents by taking amounts towards his share and went to Nizamabad and settled there. The property shown in B schedule i.e., an extent of Ac.1.29cents covered in Sy.No.53/1 and
Ac.3.00 cents covered by Sy.No.43/2, total extent Ac.4.29 cents is single plot which is situated at Somavarappadu village of Thallur Mandal is self acquired property of Chidella Venkata Subbaiah S/o. Venkaiah of East Gangavaram village. While so, he offered to sell the same, and on mutual negotiations the sale price was fixed at Rs.8,500/- and on receipt of sale consideration
Ch.Venkata Subbaiah and his son Venkateswarlu have jointly executed a register sale deed bearing document No.1937/1979, dated 10.10.1979 and delivered possession of Ac.4.29 cents on the same day in favour of late
P.Venkata Subba Rao and his brother Rama Rao, who is plaintiff herein. The plaintiff has been residing at Nizamabad town, the plaintiff offered to sell his share of property i.e., the schedule property on mutual negotiations the sale price was fixed at Rs.5,000/- and on receipt of sale consideration the plaintiff executed a stamped agreement of sale dated 10.2.1980 and delivered possession of the schedule property in favour of 2nd defendant’s father
Venkata Subba Rao and since then Venkata Subba Rao has been in continuous possession and enjoyment of Plaint B schedule property along with his share of property with absolute rights along with his family members and thus the 2nd defendant and other family members are succeeded the estate of late Venkata Subba Rao as hereditary. During the life time of Pabolu
Venkata Subba Rao he paid land revenue to the Government and on 5 O.S.118-2012, dated 29.7.2021 recognizing his peaceful possession and enjoyment, the then revenue authorities of Tallur Mandal entered the name of Pabolu Venkata Subba Rao in revenue records such as 1-B, and No.3 extracts and also issued pattadar pass book and tittle deed book in the name of Pabolu Venkata Subba Rao. On 21.3.2005 late Venkata Subba Rao took loan of Rs.25,000/- from Andhra
Bank, East Gangavaram village by mortgaging the standing crop to an extent of Ac.4.29 cents i.e., B schedule property. The said loan have been renewed from time to time and the same is pending. On the stamped agreement of sale, the plaintiff has sold his share of property and executed a stamped agreement of sale in favour of late Venkata Subba Rao, dated 10.2.1980 and the said document is more than 30 years old and under Section 90 of
Evidence Act has got the evidentiary value of due execution of the said document. While so, on 24.1.2012 Pabolu Venkata Subba Rao died intestate leaving the 2nd defendant and others as his legal heirs and on his death, the defendants have succeeded his estate and have been in continuous possession and enjoyment of the same with absolute rights. Except the defendants, the plaintiff has no manner of right, title or interest over plaint A and B schedule properties. Since 40 years the plaintiff has been residing at
Nizamabad town and he has no right, title or possession over plaint A and B schedule properties. Due to recent disputes between the plaintiff and defendants family and taking advantage of the register sale deed bearing document No.1937/1979, dated 10.10.1979, the plaintiff is seriously trying to cause inconvenience to the defendants with an intention to grab plaint A and
B schedule properties. On the death of 2nd defendant’s father, 2nd defendant and other family members requested the plaintiff to execute a proper sale deed in pursuance of agreement of sale dated 10.2.1980, he has been postponing the same from time to time on some pretext or other. As the plaintiff is not coopering, the defendants filed a suit for specific performance of agreement dated 10.2.1980 and for permanent injunction on the file of 6 O.S.118-2012, dated 29.7.2021
Junior Civil Judge Court, Darsi in O.S.92/2012 and the same was transferred to this court and renumbered as O.S.105 of 2016. There is no prima faice case and balance of convenience. Thus, submitting they sought for dismissal of the suit.
4.Basing on the both sides pleadings, the following issues have been framed for trial;
1. Whether the plaintiff is entitled for ½ share towards his share and partition?
2. Whether the plaintiff sold away his share of property to Venkata Subba
Rao and executed a stamped agreement of sale dated 10.2.1980?
3. Whether the father of first defendant by name Venkata Subba Rao and the plaintiff jointly purchased plaint B schedule on 10.10.1979 with joint earnings?
4. Whether the court fee paid by the plaintiff is correct?
5. To what relief?
5.To prove his case, the plaintiff examined PW.1 to PW.3 and marked
Exs.A1 to A3. On the other hand, the defendants examined DW.1 to DW.4 and marked Exs.B1 to B17.
6.In order to substantiate his contention, the plaintiff filed his chief affidavit as PW.1 and stated in his chief affidavit by reiterating the averments in the plaint and also marked certificate issued by the Gram Panchayat, East
Gangavarm village along with revision register dated 2.9.2012 as in Ex.A1, certificate issued by the Panchayat Secretary, Ramabhadrapuram village,
dated 28.9.2012 as in Ex.A2 and certified copy of register sale deed executed
by Cheedella Venkata Subbaiah and another in favour of plaintiff and his brother Pabolu Venkata Subba Rao dated 10.10.1979 as in Ex.A3.The plaintiff also examined defendants 11 and 12 as PW.2 and PW.3. PW.2 and PW.3 stated in their evidence that the plaintiff is the younger brother of PW.2 and elder brother of PW.3 and the marriage of PW.2 was performed at about 50 years back and the marriage of PW.3 was performed at about 40 years back.
7 O.S.118-2012, dated 29.7.2021
They further stated that at the time of their marriages sufficient amount was given to them. During the life time of their father, their elder brother i.e., plaintiff left to Nizamabad and he did business and settled there. While leaving the plaintiff from East Gangavaram village no amount was given to him, no partition was took place in between the plaintiff, their father and another brother Pabolu Venkata Subba Rao. As the plaintiff is residing at
Nizamabad, the plaintiff, their father and elder brother Venkata Subba Rao are in joint family and they are enjoying the plaint schedule properties i.e., houses and land jointly. During the life time of their father every year their father used to give usufruct derived from the plaint schedule property to the plaintiff till his death and no document was executed by the plaintiff and his elder brother Pabolu Venkata Subba Rao in favour of their father. The plaintiff also filed certificates issued by Panchayat Secretary, Ramabhadrapuram village as in Ex.A1 and A2 to show that the house in Sy.No.268/2 with assessment No.75 in East Gangavaram Gram Panchayat Secretary is belongs to Pabolu Venkata Subba Rao Son of Seshaiah and also filed certified copy of register sale deed dated 10.10.1979 as in Ex.A3.
7.On the other hand, the first defendant by name Pabolu
Koteswaramma,who was examined as DW.1 and stated in her chief affidavit by reiterating the averments in her written statement and marked
Registered sale deed dated 9.2.1976 stands in the name of P.Seshaiah as in
Ex.B1, Agreement of sale dated 20.2.1986 stands in the name of P.Venkata
Subba Rao as in Ex.B2, Registered sale deed dated 16.8.1982 stands in the name of 2nd defendant as in Ex.B3, House tax receipts (17) for item No.1 of plaint A schedule property as in Ex.B4, House tax receipts(18) for item No.2 of plaint A schedule property as in Ex.B5, House tax receipts(19) for item
No.3 of plaint A schedule property as in Ex.B6, House tax receipt for item
No.4 of plaint A schedule property as in Ex.B7, Registered sale deed dated 10.10.1979 stands in the name of P.Venkata Subba Rao as in Ex.B8, 8 O.S.118-2012, dated 29.7.2021
Agreement of sale dated 10.2.1980 executed by plaintiff in favour of
P.Venkata Subba Rao as in Ex.B9, Old rytu pass book dated 19.12.1981 stands in the name of P.Venkata Subba Rao as in Ex.B10, Land revenue receipts total 9 from 1982 to 2009 as in Ex.B11, Pattadar pass book stands in the name of P.Venkata Subba Rao as in Ex.B12, No.3 extract for fasali 1405 to 1410 issued by the then MRO, Tallur, dated 2.1.2007 as in Ex.B13, Death certificate of P.Venkata Subba Rao dated 24.1.2012 as in Ex.B14, 1-B extract obtained through Mee-Seva dated 26.5.2013 as in Ex.B15, No.3 extract for
Sy.No.53/1 C of Somavarappadu village, dated 23.5.2013 as in Ex.B16, and
No.3 extract for Sy.No.43/2 of Somavarappadu village, dated 24.5.2013 as in
Ex.B17.
8.Apart from her oral testimony, the first defendant also examined Putta
Rama Rao as DW.2, who is 3rd party to the suit proceedings. DW.2 stated in his chief affidavit that at about 40 years back the plaintiff and his elder brother Venkata Subba Rao @ Subba Rao jointly purchased an extent of ac.4.29 cents situated at Somavarappadu village and since then he has been cultivating the same on lease. Later the plaintiff sold his half share to his brother Venkata Subba Rao, as Ramarao has been residing at Nizamabad and on receipt of sale consideration P.Rama Rao executed stamped agreement of sale dated 10.2.1980 and on the same day delivered possession in favour of
Venkata Subba Rao. At the time of execution of agreement of sale, plaintiff,
Pabolu Venkata Subba Rao @Subba Rao, scribe, Cheedella Venkata Subbaiah and himself were present. Chedella Venkata Subbaiah and himself are put his signatures as attestors. After execution of agreement of sale, the document writer read over its contents to them. Later the then revenue authorities of
Tallur granted pattadar pass book and titled deed book in the name of
Venkata Subba Rao. One Nerella Anjaneyulu, who is 3rd party to the suit proceedings was examined as DW.3. DW.3 stated in his chief affidavit that 9 O.S.118-2012, dated 29.7.2021 originally item No.2 of plaint A schedule property was belongs to his paternal grandfather Nerella Ramisetty and he succeeded the same as hereditary.
While so, for his family necessities his paternal grand father sold the same and executed a stamped agreement of sale dated 20.2.1986 and delivered possession of the same on the same day in favour of Pabolu Venkata Subba
Rao, who is husband of first defendant and father of defendants 2, 6 to 9. At that time his father Nerella Hanumantha Rao was also present and signed as witness. By that time, he is aged about 23 years and he can identify his paternal grandfather and his father Hanumantha Rao. The signatures shown on stamped agreement of sale dated 20.2.1986 are belongs to his paternal grand father Nerella Ramisetty and his father Hanumantha Rao. Similarly he came to know that the husband of first defendant Pabolu Venkata Subba Rao purchased item NO.1, 3 and 4 of A schedule property and B schedule property and since then Pabolu Venkata Subba Rao and his family members i.e., the defendants have been in possession and enjoyment of the same with absolute rights. He also stated that during life time Pabolu Venkata Subba
Rao has been in possession and enjoyment of B schedule property and on recognizing his possession and enjoyment the then revenue authorities Tallur granted pattadar pass book and title deed book in the name of Pabolu
Venkata Subba Rao.
9. DW.4 stated in his chief affidavit that originally item No.1 of A schedule property was belongs to his father Chandolu Subba Rayudu and he succeeded the same as hereditary. While so, for his family necessities his father sold the same and executed agreement and delivered possession of the same prior to 1976 in favour of Pabolu Venkata Subba Rao who is husband of first defendant and father of defendants 2, 6 to 9. After purchase
Pabolu Venkata Subba rao got constructed a house and have been residing 10 O.S.118-2012, dated 29.7.2021 therein along with his family. Later in the year 1976 Pabolu Seshaiah got purchased house site on the East of item No.1 and obtained sale deed from his vendors Jasti Guravamma and another and on perusing schedule of the sale deed, item No.1 of schedule property is stands in the name of Pabolu
Subba Rao @ Venkata Subba Rao. The plaintiff has no right, title or interest over item No.1 of A schedule property. Similarly he came to know that the husband of first defendant Pabolu Venkata Subba Rao got purchased item
No.2 to 4of A schedule property and B schedule property and since then
Pabolu Venkata Subba Rao and his family members i.e., defendants have been in possession and enjoyment of the same with absolute rights. During the life time of Pabolu Venkata Subba Rao has been in possession and enjoyment of the B schedule property and on recognizing his possession and enjoyment, the then revenue authorities of Tallur grated pattadar pass book and title deed book in the name of Pabolu Venkata Subba Rao.
10.At the time of arguments, the learned counsel for the plaintiff argued by reiterating the averments in the plaint and evidence on record. On the other hand, the learned counsel for the defendants filed written arguments by reiterating the averments in the pleadings and evidence on record. He also relied upon a decision reported by the Hon’ble High Court of Andhra
Pradesh, B Nadamuni Chetty S/o. Nagaiah Vs., P.Krishna Reddy and Six others, dated 22 October, 2010 in 2010 LawSuit(AP) 677, wherein the second appeal was allowed dismissing the relief in respect of item No.1 of plaint schedule in O.S.6 of 1987 on the file of Additional Subordinate Judge,
Tirupathi, observing that the judgments of both the lower courts i.e., trial court and first appellate court are opposed to the settled legal decision that burden of proof was entirely on the plaintiff and the plaintiff in the said suit has failed to discharge such initial burden.
11 O.S.118-2012, dated 29.7.2021
11. ISSUE Nos.1 to 3:
Since the issues 1 to 3 are inter-related, these issues are answered together.
As seen from the both sides pleadings, it is an admitted fact that the plaintiff and one Pabolu Venkata Subba Rao are the sons of Pabolu Seshaiah and defendants 11 and 12 are the sisters of plaintiff and Pabolu Venkata
Subba Rao. It is also an admitted fact that Pabolu Venkata Subba Rao died leaving behind the first defendant, who is his wife and defendants 2, 6 to 10 who are the sons and defendants 3, 4, and 5, who are the wife and children of deceased son of Seshaiah by name Raja Rao.
12.The disputed facts are according to the plaintiff that plaint A schedule properties are the ancestral properties of P.Seshaiah and he along with his two sons were in joint possession of A schedule properties during his life time, thereafter the death of their father plaintiff and Pabolu Venkata Subba
Rao had been in joint possession and enjoyment of plaint A schedule properties till the death of Pabolu Venkata Subba Rao. The plaintiff migrated to Nizamabad and his brother Pabolu Venkata Subba Rao used to collect the rents from A schedule properties and used to give rents to the plaintiff towards his share. After the death of Pabolu Venkata Subba Rao, the defendants also used to give usufruct from the plaint A schedule properties to the plaintiff towards his share.
13.According to the defendants that the plaint A schedule properties are house properties and the same was stands in the name of their father Pabolu
Venkata Subba Rao.
14.Since the present suit is filed by the plaintiff for partition of plaint schedule properties, claiming his share over plaint A schedule properties, contending that the plaint A schedule properties are ancestral properties of his father Seshaiah, it is for the plaintiff to prove that the plaint A schedule properties are ancestral properties of plaintiff and defendants and they are in 12 O.S.118-2012, dated 29.7.2021 joint possession and enjoyment of the same. To prove the same, the plaintiff filed Ex.A1 to A3 and examined PW.1 to PW.3. But Ex.A1 to A3, which are
Certificate issued by the Gram Panchayat, East Gangavaram village along with revision register, dated 2.9.2012, Certificate issued by the Panchayat
Secretary, Ramabhadrapuram village, dated 28.9.2012 and Certified copy of registered sale deed executed by Cheedella Venkata Subbaiah and another in favour of plaintiff and his brother Pabolu Venkata Subba, dated 10.10.1979 filed by the plaintiff are not helpful to the plaintiff to prove that the plaint A schedule properties are the ancestral properties of plaintiff and defendants, their oral testimonies cannot be considered in the absence of any documents.
Hence, the oral testimony of PW.1 to PW.3 cannot be considered.
15.On the other hand, to prove their contention that the plaint A schedule properties are stands in the name of their father, the defendants adduced oral testimony of DW.1 to DW.4 and also filed Ex.B1 to B7. It is the evidence of DW.1 that her husband purchased item No.1 of plaint A schedule property about 45 years back from one Chandolu Subbarayudu. Thereafter he removed mud house and constructed RCC roof house in item No.1 and to the
East of item No.1 there is a vacant site an extent of Ac.0.03cents and the same was purchased by her father-in-law Seshaiah under registered sale deed dated 9.2.1976 bearing document No.59/1976. To prove the same the first defendant also filed Ex.B1, which is the registered sale deed dated 9.2.1976 executed in favour of Seshaiah by one Jasti Guravamma W/o.
Kotaiah and Chaluvadi Lingaiah S/o. Ramaiah. The schedule in Ex.B1 reveals that it is situated in Sy.No. 16 of Somavarappadu village and the extent is
Ac.0.03 cents and bounded by East: site of vendors, South: house of Pulla
Rao, West: P. Subba Rao house and North: road. Hence, the schedule mentioned in Ex.B1 also clearly reveals that item No.1 is in the name of
Pabolu Venkata Subba Rao by the date of Ex.B1 registered sale deed dated 9.2.1976.
13 O.S.118-2012, dated 29.7.2021
16.In addition, the defendant also examined one Chandolu Venkata
Satyanarayana as DW.4 and he stated that originally item No.1 of plaint A schedule property was belongs to his father Chandolu Subba Rayudu and for family necessities his father sold the same under agreement prior to 1976 and delivered the possession to Pabolu Venkata Subba Rao. When DW.4 stated so, the counsel for the plaintiff cross examined him and during course of cross examination he stated that he has not seen the agreement executed by his father in respect of item No.1 of plaint A schedule property, but he came to know the same through his mother. He does not know when Pabolu
Venkata Subba Rao purchased item No.2 to 4 of A schedule property and when he was granted pattadar pass book and title deed book. But nothing was elicited from the mouth of DW.4, contra to his evidence that item No.1 is originally belongs to his father and his father sold the same to Pabolu
Venkata Subba Rao. In the absence of any document filed by the plaintiff and on considering the above evidence DW.1 and Dw.4 and Ex.B1, I found that item No.1 of plaint schedule property is the absolute property of Pabolu
Venkata Subba Rao.
17.Further, it is the evidence of DW.1 that item No.2 of plaint A schedule property was purchased by her husband Pabolu Venkata Subba Rao on 20.2.1986. She also filed the said agreement of sale dated 20.2.1986 as
Ex.B2. To prove Ex.B2 agreement of sale dated 20.2.1986, the defendant also examined DW.3 by name Nerella Anjaneyulu, who is the grand son of vendor under Ex.B2 and he stated in his evidence that his paternal grand father executed agreement of sale dated 20.2.1986 in favour of Pabolu Venkata
Subba Rao, husband of the first defendant. He also stated that one Nerella
Hanumantha Rao signed as a witness in Ex.B2. He also identified the signature of Ramisetty in Ex.B2. When DW.3 stated so, the counsel for the plaintiff cross examined him and during course of cross examination, he stated that he did not attest Ex.B2 though he has attained majority by that 14 O.S.118-2012, dated 29.7.2021 time. But he categorically stated that the property under Ex.B2 is originally belongs to his ancestors. He can identify the signature of his grand father and father, but he did not file any documents showing the signatures of his father and his grand father. I found nothing was elicited from his mouth contra to his evidence with regard to the execution of Ex.B1 by his grand father and about the signature under Ex.B2.
18. It is also the evidence of DW.1 that item No.3 of plaint A schedule property was purchased by her elder son Pabolu Venkateswarlu from Gujjula
Pitchireddy and others under registered sale deed dated 16.8.1982 bearing document No.1815/1982. To prove the same, the defendants also filed registered sale deed dated 16.8.1982 as an Ex.B3.
19.When the counsel for the defendants cross examined PW.1, PW.1 stated during course of cross examination that item No.1 of plaint A schedule property was purchased by his father in the name of his elder brother and it might be correct that the Western side of item No.1 of property is self acquired property of his elder brother Pabolu Venkata Subba Rao. His father purchased item No.2 of A schedule property in the name of his elder brother and item No.3 of A schedule property was also purchased by his father in the name of his elder brother. He also stated that the property to an extent of 164-3/9 sq.yards situated at Ongole exclusively belongs to his wife. But he denied the suggestion put to him that the said property purchased by his father in the name of his wife in the year 1982 under register sale deed in bearing document No.2/1983 of SRO, Ongole. The above evidence spoken by
PW.1 in respect of item No.1 to 4 that the said item No.1 to 4 of plaint A schedule properties were purchased by his father in the name of his brother
Pabolu Venkata Subba Rao is quite contra to his pleadings that plaint A schedule properties are ancestral properties of plaintiff, his father and defendant. Nowhere in his pleadings the plaintiff stated about the Ex.B1 to
B3 and it is not at all his contention that item No.1 to 4 were purchased by 15 O.S.118-2012, dated 29.7.2021 father of the plaintiff in the name of Pabolu Venkata Subba Rao out of the income derived from the joint family properties. But his only contention is that item No.1 to 4 of plaint A schedule properties are the ancestral properties of plaintiff, Pabolu Venkata Subba Rao and their father. During course of cross examination of DW.1 also the counsel for the plaintiff cross examined DW.1 contending that item No.1 to 4 are purchased in the name of
Pabolu Venkata Subba Rao out of the income derived from the joint family properties. But, nowhere it was stated by the plaintiff that plaint A schedule properties were purchased out of the income derived from the ancestral properties and no evidence adduced to that effect. Hence, from the pleadings of the plaintiff in the plaint and evidence spoken by PW.1 during course of cross examination, I found that the plaintiff filed the present suit without knowing anything about item No.1 to 4 of plaint A schedule properties, but claimed his share falsely pleading that they are the ancestral properties.
20.On considering the above discussed evidence on record adduced by the defendants i.e., oral testimony of DW.1 to DW.4 coupled with Ex.B1 to B3, I found that item No.1 to 4 of plaint A schedule properties are self acquired properties of Pabolu Venkata Subba Rao and the revenue records filed by the defendants as in Ex.B4 to B7, Ex.B11 to B16 also supports their contention that the name of Pabolu Venkata Subba Rao husband of first defendant was mutated in the revenue records in respect of item Nos.1 to 4 of plaint A schedule properties.
21.In view of the above discussion, I have no hesitation to hold that the item No.1 to 4 of plaint A schedule properties are the self acquired properties of Pabolu Venkata Subba Rao, but not the ancestral properties of plaintiff, plaintiff’s elder brother and their father as contended by the plaintiff. Hence, the plaintiff cannot get any share over item No.1 to 4 of plaint A schedule properties.
16 O.S.118-2012, dated 29.7.2021
22.Coming to the other contention of the plaintiff in respect of plaint ‘B’ schedule property, it is an admitted fact that the B schedule property was jointly purchased by Pabolu Venkata Subba Rao and plaintiff under sale deed dated 10.10.1979. But the disputed facts are that the plaintiff executed agreement of sale dated 10.2.1980 in favour of Pabolu Venkata Subba Rao in respect of his share over plaint B schedule property by receiving consideration of Rs.5000/- and delivered the possession of the same to
Pabolu Venkata Subba Rao, since then the husband of first defendant Pabolu
Venkata Subba Rao has been in possession and enjoyment of the entire plaint B schedule property, thereafter his death the defendants are in possession and enjoyment of the plaint B schedule property being absolute owners, but the plaintiff denied the agreement of sale dated 10.2.1980.
23.Defendants filed a suit in O.S.105 of 2016 on the file of this court for specific performance of contract in respect of plaint B schedule property and the same was disposed of today along with this suit and the suit in O.S.105 of 2016 was decreed granting specific performance of contract, directing the plaintiff to execute registered sale deed in pursuance of agreement of sale
dated 10.2.1980. Hence, in view of decree in O.S.105 of 2016, the plaintiff is
not entitled for any share over plaint B schedule property and he is not entitled for partition of plaint schedule properties. Accordingly issues No.1 to 3 are answered.
ISSUE No.4:
24.In view of my answer to issue No.1 to 3, I found that the plaint schedule properties are in possession and enjoyment of defendants, but the plaintiff filed the present suit claiming joint possession over the schedule properties and paid fixed court fee of Rs.200/- under Section 34(2) of APCF and SV Act, hence the court fee paid by the plaintiff is not correct. Accordingly, issue No.4 is answered.
17 O.S.118-2012, dated 29.7.2021
ISSUE No.5:
25. In the result, the suit is dismissed. In the circumstances of the case, no costs.
Dictated to the Personal Assistant, transcribed by him, corrected and pronounced
by me, this the 29 th day of July, 2021.
SENIOR CIVIL JUDGE,
DARSI.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For Plaintiff: For Defendants:
PW.1: P.Rama RaoDW.1:P.Koteswaramma PW.2: P.AnjammaDW.2:P.Rama Rao PW.3: R.SuseelaDW.3: N. Anjaneyulu DW.4:Ch.V.Satyanarayana
DOCUMENTS MARKED
For Plaintiff:
Ex.A1: Certificate issued by the Gram Panchayat, East Gangavaram village along with revision register, dated 2.9.2012 Ex.A2: Certificate issued by the Panchayat Secretary, Ramabhadrapuram village, dated 28.9.2012 Ex.A3: Certified copy of registered sale deed executed by Cheedella Venkata Subbaiah and another in favour of plaintiff and his brother Pabolu Venkata Subba, dated 10.10.1979
For defendants: Ex.B1: Registered sale deed dated 9.2.1976 stands in the name of P.Seshaiah Ex.B2: Agreement of sale dated 20.2.1986 stands in the name of P.Venkata Subba Rao Ex.B3: Registered sale deed dated 16.8.1982 stands in the name of 2nd de- fendant Ex.B4: House tax receipts (17) for item No.1 of plaint A schedule property Ex.B5: House tax receipts(18) for item No.2 of plaint A schedule property Ex.B6: House tax receipts(19) for item No.3 of plaint A schedule property Ex.B7: House tax receipt for item No.4 of plaint A schedule property Ex.B8: Registered sale deed dated 10.10.1979 stands in the name of P.Venkata Subba Rao Ex.B9: Agreement of sale dated 10.2.1980 executed by plaintiff in favour of P.Venkata Subba Rao Ex.B10 : Old rytu pass book dated 19.12.1981 stands in the name of P.Venkata Subba Rao Ex.B11 : Land revenue receipt total 9 from 1982 to 2009 Ex.B12 : Pattadar pass book stands in the name of P.Venkata Subba Rao 18 O.S.118-2012, dated 29.7.2021
Ex.B13 : No.3 extract for fasali 1405 to 1410 issued by the then MRO, Tallur,
dated 2.1.2007
Ex.B14 : Death certificate of P.Venkata Subba Rao dated 24.1.2012 Ex.B15 : 1-B extract obtained through Mee-Seva dated 26.5.2013 Ex.B16 : No.3 extract for Sy.No.53/1 C of Somavarappadu village,
dated 23.5.2013
Ex.B17 : No.3 extract for Sy.No.43/2 of Somavarappadu village
dated 24.5.2013
S.C.J., Darsi 19 O.S.118-2012, dated 29.7.2021
IN THE COURT OF THE SENIOR CIVIL JUDGE :: DARSI
PRESENT: Smt K. Sree Devi,
Senior Civil Judge, Darsi
Thursday, this the 29 th day of July, 2021
ORIGINAL SUIT No. 118 OF 2012
Between:
Pabolu Rama Rao S/o. Late Seshaiah, 75 Years, Hindu, Business, Native of East Gangavaram village, Thallur Mandal, Prakasam District, now residing at Door No.10-14-1960, S.R. Nagar, Nizamabad Town and District. … PLAINTIFF Vs., 1Pabolu Koteswaramma W/o. Late Venkata Subba Rao, 66 Years, Hindu, Housewife, R/o.East Gangavaram village, Thallur Mandal, Prakasam Dist. 2Pabolu Venkateswarlu S/o. Late Venkata Subba Rao, 52 Years, Hindu, Business, R/o.Jeans House, Opp.to Vijaya Complex, Kurnool Road, Ongole. 3Pabolu Satyavathi W/o. Late Pabolu Raja Rao, 40 Years, Hindu, Housewife, R/o.D.No.12-20-4, Seetharam Nagar, Kotha Gajuwaka, B.C.Road, Vishakhapatnam. 4Perumallu Durga Sowjanya D/o. late Raja Rao, 21 Years, Hindu, R/o.D.No.12-20-4, Seetharama Nagar, Kotha Gajuwaka, B.C.Road, Visakhapatnam 5Pabolu Kalyani D/o.late Raja Rao, 19 Years, Hindu, R/o.D.No.12-20-4,SeetaramaNagar,Kotha Gajuwaka, B.C.Road, Visakhapatnam. 6Pabolu Srinivasa Rao S/o. Late Venkata Subba Rao, 48 Years, Hindu, Business, R/o.Jeans Park, Jagganna Nilayam, Main road, New Gajuwaka, Visakhapatnam. 7Pabolu Ramu @ Rama Rao S/o. Late Venkata Subba Rao, 45 Years, Hindu, Business, R/o.Jeans House, Opp.to Vijaya Complex, Kurnool Road, Ongole. 8Pabolu Satyanarayana S/o. Late Venkata Subba Rao, 43 Years, Hindu, Business, R/o.Jeans House, Opp.to Vijaya Complex, Kurnool Road, Ongole. 9Pabolu Anjaneyulu S/o. Late Venkata Subba Rao, 40 Years, Hindu, Business, R/o.Jeans Park, Jagganna Nilayam, Main road, New Gajuwaka, Visakhapatnam 10Padmanabhuni Lakshmi Prasanna W/o. Sudhakara Rao, 38 Years, Hindu, Housewife, R/o.C/o.Hari Priya Khadi Bandar, Bapuji Complex, Ongole.
11. Patchipulusu Anjamma W/o.Subba Rao, 72 Years, Hindu, Housewife, R/o.Swarna Village, Karamchedu Mandal, Prakasam District.
12. Ravva Suseela W/o. Late Nageswara Rao, 63 Years, Hindu, Housewife, R/o.Nappatlapadu village, Chimakurthy Mandal, Prakasam District. ** The defendants 11 and 12 are added as per orders … DEFENDANTS in I.A.501/2019, dated 20.1.2020 20 O.S.118-2012, dated 29.7.2021
This suit is filed for partitionof plaint schedule properties be divided into half share according to the fertility and utility and deliver separate possession of the same to the plaintiff and for costs of the suit. CAUSE OF ACTION: The cause of action for the suit arose, when A and B schedule properties are ancestral properties of one Pabolu Seshaiah and he had two sons by name Pabolu Rama Rao and Venkata Subba Rao who is the husband of first defendant and the father of defendants 2 to 6 to 10, grand father of defendants 4 and 5 and father-in-law of 3rd defendant and that they are in joint possession and enjoyment of the same and subsequently the above said Seshaiah died and thereafter and even after the plaintiff and Pabolu Venkata Subba Rao were in joint possession and enjoyment of the same and subsequently the above said Pabolu Venkata Subba Rao also died that the plaintiff and defendants are in joint possession and enjoyment of the suit A and B schedule properties and the plaintiff is entitle to half share since a month when the plaintiff has been demanded the defendants to cooperate for a partition for which they did not come forward, since a week when the defendants are proclaiming in that village that tthey would execute the suit A and B schedule properties in Somavarappadu village, where the suit A and B schedule properties are situated within the jurisdiction of this court. VALUATION AND COURT FEE : For the purpose of court fee and jurisdiction, the total market value of suit schedule properties is 12,35,900/-; plaintiff’s half share is Rs.6,17,950/-; 3/4th of the market value of Rs.9,26,925/-, on which a court fee of Rs.200/- is paid under Sec.34(2) of APCF and SV Act, as the plaintiff is in joint possession along with defendants. Plaint presented on : 5.11.2012 and filed on: 23.11.2012
The suit coming before me for final hearing in the presence of Sri G.T.Shiva Sharma Advocate for the Plaintiff and of Sri P. Prem Kumar, Advocate for defendants 1, 2, 7, 8 and 10 and the defendants 3 to 6, 9, 11, and 12 set exparte,and upon perusing the material available on record, and upon hearing the arguments and having stood over for consideration to this day, till this day, this Court doth order and decree; .i. that the suit be and the same is hereby dismissed; .ii. that the plaintiff and defendants do bear their own costs of Rs.NIL (C.M and FC not filed on both sides) (Plaint schedule is attached herewith) Given under my hand and seal of Court, this the 29 th day of July, 2021.
SENIOR CIVIL JUDGE,
DARSI.
TABLE OF COSTS
FOR PLAINTIFF FOR DEFENDANTS
- C.M and FC not filed on both sides -
S.C.J. Note: The exhibited documents and non-exhibited documents which are marked have to be taken back by the parties concerned with in the stipulated time with an undertaking to produce the same as and when required by the Court.