Sri Karri Prakash Babu

O.S.No.357/2014 CJ (SD), TPG

IN THE COURT OF THE CIVIL JUDGE (SENIOR DIVISION): TADEPALLIGUDEM

P P r r e e s s e e n n t t : : S S r r i i K K . . P P r r a a k k a a s s h h B B a a b b u u

S S e e n n i i o o r r C C i i v v i i l l J J u u d d e e

Thursday, the 4 th day of April, 2024

O.S.No.357/2014

Between:-

1.Pasarla Naga Venkata Dheeraj, S/o. late Vara Prasad, male, aged 23 years, Mother's protection, r/o. D.No.11-28-5/8, Narasimharao Peta, Tadepalligudem, W.G.Dt.

2.Pasarla Suraj, S/o. late Vara Prasad, male, aged 22 years, Mother's protection, r/o. D.No.11-28-5/8, Narasimharao Peta, Tadepalligudem, W.G.Dt.

3.Pasarla Ramadevi, W/o. late Vara Prasad, female, aged 34 years, housewife, r/o. D.No.11-28-5/8, Narasimharao Peta, Tadepalligudem, W.G.Dt.

(Plaintiffs 1 and 2 are declared as majors as per the orders in I.A.No.737/2021 dated 28-02-2022)

... Plaintiffs

And

1.Pasarla Nageswara Rao, S/o. Ramanna, male, aged 70 years, Retired Employee, r/o. Kamala Nagar, Plot No.99, L.B. Nagar, Hyderabad, Telangana State.

2.Pasarla Somamma, W/o. Nageswara Rao, female, aged 65 years, housewife, r/o. Kamala Nagar, Plot No.99, L.B. Nagar, Hyderabad, Telangana State.

3.Shaik Peer Basha, S/o. Venki Saheb, male, aged 44 years, business, r/o. D.No.1-47, Siddapuram, Nidamarru Mandal, W.G.Dt.

4.Kolli Ramalingeswara Rao, S/o. Kota Satyanarayana, male, aged 50 years, Vanastalipuram, Hyderabad, Telangana State.

(4th defendant is added as per the orders in I.A.No.738/2021 dated 28-01- 2022).

. .. Defendants

This suit is coming on 01-04-2024 before me for final hearing in the presence of Sri T.V. Satyanarayana, Counsel for Plaintiffs and of

Sri Mutta Rama Rao, Counsel for the defendants 1 to 3 and of Sri Ch. Udaya 1

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Bhaskar, Counsel for the 4th defendant and having stood over for consideration, till this day, this Court delivered the following:

J U D G M E N T

This suit is filed by the plaintiffs for partition of the plaint schedule properties into Eighteen (18) equal shares and to allot four such shares to each of the plaintiffs and one such share to the 3rd plaintiff and for separate possession of their respective shares by cancelling the sale deed dated 07-08-2014 executed by the defendants 1 and 2 in favour of the 3rd defendant and for costs of the suit.

2. Brief averments in the plaint are -

The Plaintiffs 1 and 2 are sons of 3rd Plaintiff and Pasarla Vara

Prasad. The said Pasarla Vara Prasad is the son of Defendants 1 and 2. The 3rd

Defendant is alienee from the Defendants 1 and 2. The plaint schedule properties are ancestral properties of Plaintiffs and Defendants 1 and 2. Item No.1 of the plaint schedule property originally belongs to Pasarla Ramanna who is father of the 1st Defendant. After death of said Ramanna, Item No.1 of the plaint schedule property devolved on the 1st Defendant.

3. The 1st Defendant got one son by name Vara Prasad (father of

Plaintiffs 1 and 2) and two daughters. The father of the Plaintiffs 1 and 2 and 1st

Defendant developed Item No.1 of the plaint schedule property. The 1st

Defendant sold away some of the ancestral property and with that sale consideration the 1st Defendant and Vara Prasad purchased Item No.2 of the plaint schedule property in the name of 1st Defendant under sale deed dated 21-06-2006 and some other properties. Thus, Item Nos.1 and 2 are the ancestral 2

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properties of 1st Defendant and Pasarla Vara Prasad, who is father of the Plaintiffs 1 and 2.

4. It is further submitted that said Vara Prasad died intestate on 22-03-2011 while in joint and constructive possession with the 1st Defendant of the schedule properties, leaving the Plaintiffs 1 to 3 as his legal heirs. The father of the Plaintiffs 1 and 2 Vara Prasad has half share in the plaint schedule properties. After the death of Vara Prasad who is father of Plaintiffs 1 and 2, his share devolved on the Plaintiffs 1 to 3. Thus the Plaintiffs 1 to 3 have half share in the plaint schedule properties.

5. The 1st Defendant and father of the Plaintiffs 1 and 2 performed the marriage of two daughters of 1st Defendant by giving some properties and they are living at their respective places with their families and the daughters of 1st

Defendant have no share in the schedule properties.

6. The 1st Defendant used to give share in the income from the plaint schedule properties up to 2010. There after the 1st Defendant started to act against the interest of the Plaintiffs in the plaint schedule properties. The Plaintiffs demanded the 1st Defendant for partition of the plaint schedule properties to enable them to have their half share in the plaint schedule properties. But the 1st

Defendant is postponing the same on some pretext or other.

7. It is further submitted that the Plaintiffs came to know that the

Defendants 1 and 2 executed a nominal, sham and concocted document styled as sale deed on 07-08-2014 in favour of 3rd Defendant, which does not bind on the

Plaintiffs and their share in the plaint schedule properties. Since the death of Vara 3

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Prasad, the Plaintiffs and 1st Defendant are in joint and constructive possession of the schedule property. The Plaintiffs 1 and 2 each having 2/9 shares and the 3rd

Plaintiff has 1/18 share in total of 1/2 share in the plaint schedule property of Vara

Prasad.

8. The Schedule properties are ancestral properties of Plaintiffs and

Defendants under the management of 1st Defendant. The 1st defendant is acting against interest of the Plaintiffs. The Plaintiffs are now residing in Item No.2 of the plaint schedule property since 2007. The Defendants are further trying to alienate the schedule properties in favour of others. The Plaintiffs have demanded the

Defendants for the partition of the plaint schedule properties but the Defendants are postponing the same on some pretext or other. The Plaintiffs are no longer willing to continue joint with the Defendants. It is further submitted that the

Plaintiffs got issued registered notice to the Defendants on 25-08-2014 demanding partition of the schedule property but in vain. Hence the suit.

9. The 1st defendant filed written statement denying the material allegations in the plaint and submitted that their deceased son by name Vara

Prasad has completed his school education in the year 1989 and thereafter he could not take up any permanent employment. The marriage of the 3rd Plaintiff and the son of these Defendants 1 and 2 took place in the year 1997. It is further submitted that since Vara Prasad habituated bad habits, his health was spoiled and the 1st defendant who was working in Government Service, used to help the family of his Deceased son.

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10. It is humbly submitted that Vara Prasad has grossly increased demanding money without any genuine requirement and only with an intention to harass the 1st Defendant. In the year 2003, settlement took place between the 1st and Vara Prasad and accordingly the deceased Vara Prasad i.e. husband of the 3rd Plaintiff received an amount of Rs. 1,00,000/- towards full and final settlement of his entire claims over the properties belong to his father i.e 1st

Defendant and executd cash receipt styled as "No Objection Certificate." The said settlement was taken place within the personal knowledge of the 3rd Plaintiff and as such, the claim of the 3rd Plaintiff again resorting for partition of the alleged properties is totally illegal.

11. It is further submitted that the 1st Defendant got retired on 31 May 2006 and with the employment benefits, he got purchased the property at

Tadepalligudem i.e Item No. 2, which is absolutely belong to the 1st Defendant only and it is not ancestral property as claimed by the Plaintiffs. It is further submitted that right from the day of marriage of the 3rd Plaintiff with their son, there is no occasion for their son to have a stable job or income source, as such after purchasing the house at Tadepaligudem on humanitarian grounds and for the survival of the family of their son in the year 2007, the 1st Defendant permitted the Plaintiffs along with their son to reside in only two rooms (kitchen and a room) of the house at Tadepalligudem.

12. It is further submitted that in view of the above fact, the possession of the Plaintiffs over Item No.2 of the Schedule Property is only permissive possession and not joint possession as claimed by them. He further submits that 5

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in the year 2008, he also provided hand loan of Rs.50,000/- twice to his son, for purchase of a Passenger Auto vehicle for the livelihood of their son but the said amounts were spent for some other purpose by the 3rd Plaintiff and her husband.

13. It is humbly submitted that during the year May 2010 and March 2011, the 3rd Plaintiff brought their deceased son to Hyderabad for better medical treatment and the 1st defendant alone with great difficulty spent all the medical expenses and in view of inconsistent health, the husband of the 3rd Plaintiff died on 22-03-2011.

14. It is further submitted that after the death of Vara Prasad, the creditors of the 1st Defendant started demanding to repay the amounts, as such the 1st Defendant decided to sell away his property at Tadepalligudem, which was purchased by him in the year 2006 with his own funds. The 3rd plaintiff is always threatening the old aged in-laws saying that she will put criminal case against them. It is submitted that in view of the above conduct of 3rd Plaintiff, the 1st

Defendant was constrained to issue legal notice dated 22-06-2013 calling the 3rd

Plaintiff to vacate Item No.2 of the plaint schedule property. After receipt of the notice, the 3rd Plaintiff assured the Defendant 1 and 2 that she will vacate the schedule property Item No.2 by the time as and when the proposed sale process be completed.

15. It is further submitted that the Defendants 1 and 2 are under obligation to take care of the grand children i.e. children of their daughter

Padmaja who died in the year 2004 and their son-in-law Appa Rao, who died in

August, 2005. It is further submitted that since the Plaintiff No.3, is not 6

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cooperating to complete the sale process of the property at Tadepalligudem, the

Defendant No.1 was constrained to sell the property at Siddapuram, in order to meet the immediate demands of their Creditors to some extent and as such they sold the property in the name of Defendant No.3 and now recently they also sold the property at Tadepalligudem much prior to have notice of the present suit, filed by the Plaintiffs with false averments.

16. It is submitted that, the Plaintiffs by suppressing all these facts have got filed the present suit by claiming partition over the suit property and filed the present false suit only to harass the old aged Defendants 1 and 2. This Defendant also submits that as on the date of filing the present suit the Plaintiffs were never in joint possession of the Properties under Items No.1 and 2 as pleaded by the

Plaintiffs, as such the suit for partition is devoid of merits and prayed to dismiss the suit.

17. The defendants 2 and 3 filed memos adopting the written statement filed by the 1st defendant.

18. Additional written statement filed by the 4th defendant denying the material allegations in the plaint and submitted that the suit is bad for non-joinder of parties and the shares claimed is not correct and daughters have share in the schedule properties after latest amendment and Tangella Srinivasu is also proper and necessary party to the suit.

19. It is submitted that the claim of the plaintiffs is barred by limitation and the plaintiffs intentionally added Item No.2 of the property to get undue advantage and the relief prayed for is not inconsonance with the pleadings. There 7

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are no joint family or ancestral properties even by the date of filing of the suit and the plaintiffs never in joint and constructive possession of the schedule properties and there is no ancestral nucleus.

20. It is further submitted that the defendants 1 and 2 had three children namely Kolli Venkata Lakshmi, Pasarla Venkata Prasasd, Sappa Padmaja.

The plaintiffs and 2nd defendant are legal heirs of the deceased son Vara Prasad and there are no valid reasons assigned for non-joinder of 2nd defendant as one of the sharer to the deceased son. Both the daughters of the defendants 1 and 2 are not parties to the suit despite their marriages were subsequent to amendment, which is contrary to settled proposition of law and non-joinder of parties is fatal to the case of the plaintiffs.

21. It is further submitted that there are no valid instances to show about ancestral nature of the properties and also incomes there from in purchasing Item No.2 of the plaint schedule property. The 1st defendant purchased Item No.2 of the plaint schedule property with his own monies. The father of the plaintiffs 1 and 2 had no avocation except depending upon the income of the 1st defendant and he addicted to vices and indebted to several others. After death of son of defendants 1 and 2, his creditors made an attack on the house of the 1st defendant and that the 1st defendant decided to sell away the property to clear the debts of his son. So, the question of contribution of his son for purchase of property is totally absurd. This defendant is a bona-fide purchaser for valuable consideration 8

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22. It is further submitted that the 4th defendant leased out the plaint schedule property to the 3rd plaintiff for the purpose of her Beauty Parlour business on a monthly rent of Rs.4,000/- and the 3rd plaintiff agreed to vacate the plaint schedule property in case of default in two months rents consecutively. The 3rd plaintiff committed default in payment of monthly rents and failed to vacate the premises on demands made by the 4th defendant and the plaintiffs are nothing but defaulters of rent and they have no locus standi to question the sale deeds. There are no bona-fides in the suit and prayed to dismiss the same.

23. Basing on the pleadings of both parties, the following issues were framed for trial by my predecessor:

1. Whether the plaint schedule properties are ancestral properties?

2. Whether the plaint schedule properties are self-acquired properties of 1st defendant?

3. Whether the father of the plaintiffs 1 and 2 received Rs.1 lakh towards full and final settlement over the property belonging to the 1st defendant?

4. Whether the plaintiffs are in permanent possession in Item No.2 of the plaint schedule property?

5. Whether the plaintiffs are entitled for partition of properties, if so, to what share?

6. Whether the plaintiffs are entitled for cancellation of sale deed

dated 07-08-2014 executed in favour of the 3rd defendant?

7. To what relief?

On 06-09-2022, the following additional issue was framed:

Whether the plaintiffs are entitled to seek cancellation of sale deed dated 09-01-2015 executed by Tangella Srinivasu in favour of the 4th defendant?

24. To substantiate the case of plaintiffs, PWs1 to 4 were examined and got marked Exs.A-1 to A-9. On behalf of the defendants, the 1st defendant is 9

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examined as DW1 and got marked Exs.B1 to B3.

25. Heard both sides. I have given my earnest consideration to the submissions made by the plaintiffs as well as the defendants. Perused the written arguments submitted on both sides.

26. I S S U E Nos.1, 2, 5 and 6:

Whether the plaint schedule properties are ancestral properties?

Whether the plaint schedule properties are self-acquired properties of 1st defendant?

Whether the plaintiffs are entitled for partition of properties, if so, to what share?

Whether the plaintiffs are entitled for cancellation of sale deed dated 07-08-2014 executed in favour of the 3rd defendant?

To substantiate the case of the plaintiffs, the 3rd plaintiff herself examined as PW1, got examined PWs2 to 4 and got marked Exs.A1 to A9. To substantiate the case of the defendants, the 1st defendant himself examined as

DW1 and got marked Exs.B1 to B3.

27. The issue involved in this case is whether the plaint schedule properties are self-acquired properties or ancestral properties.

28. It is the case of the defendants that the 1st defendant got retired from his service on 31-05-2006 and with the retirement benefits, he purchased

Item No.2 of the plaint schedule property at Tadepalligudem as such, it is his absolute property and it is not ancestral property.

29. It is further case of the 1st defendant that since marriage of his 10

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deceased son Vara Prasad with the 3rd plaintiff, he has no suitable employment and there is no occasion to their son to contribute any income. The 1st defendant purchased the property for survival of family of his son Vara Prasad and the 1st defendant permitted the plaintiffs along with his son to reside in only two rooms i.e. kitchen and a room, as such, the possession of the plaintiffs over the property is only permissive possession and not joint possession as claimed by them.

30. It is further case of the 1st defendant that in the year 2007, the 1st defendant provided loan of Rs.50,000/- to his son Vara Prasad to purchase a passenger auto but the said amount was utilised for some other purpose by his son and the 3rd plaintiff. During the month of May 2010 and March 2011, the 3rd plaintiff brought their son to Hyderabad for better treatment and the 1st defendant spent Rs.2 lakhs at Global Hospital, Karmanghat, Hyderabad apart from spending Rs.45,000/- at Tadepalligudem and Tanuku. In view of the inconsistent health grounds, the husband of the 3rd plaintiff died on 22-03-2011, as such the 1st defendant faced mental depression.

31. It is further case of the 1st defendant that the creditors of their son

Vara Prasad demanded for repayment of his debts, as such, the 1st defendant decided to sell away the property in Tadepalligudem which was purchased in the year 2006. However, the 3rd plaintiff who was permitted to reside in the said house, started threatening the old aged father in law with dire consequences.

Whenever any prospective purchaser intending to purchase the property, she along with her family members made galata. In view of the conduct of the 3rd plaintiff, the 1st defendant got issued legal notice dated 22-06-2013 to the 3rd 11

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plaintiff to vacate Item No.2 of the plaint schedule property. After receipt of notice, the 3rd plaintiff assured that she will vacate the premises as and when the proposed sale process is completed.

32. It is further case of the 1st defendant that since the 3rd plaintiff is not cooperating to sell the property at Tadepalligudem, the 1st defendant constrained to sell the property at Siddapuram in order to meet the immediate demands of their creditors to some extent. As such, they sold the property to the 3rd defendant and recently, they also sold the property at Tadepalligudem. It is submitted that the defendants 1 and 2 are under the obligation to look after welfare of children of their deceased daughter Padmaja, by name Harish Venkata

Sai and Supriya Santoshi. Their daughter died in the month of September 2004 and their son in law, by name, S. Appa Rao died in the month of August 2005.

33. The plaintiffs filed the suit by suppressing all these facts only to harass them and to gain wrongfully. On the date of filing of the suit, the plaintiffs were never in possession of the plaint schedule property and the suit is liable to be dismissed.

34. On the other hand, the case of the plaintiffs is that the plaint schedule properties are ancestral properties. Pasarla Vara Prasad, who is father of the plaintiffs 1 and 2 and husband of 3rd plaintiff died intestate while he was in joint and constructive possession of the plaint schedule properties. The plaintiffs 1 to 3 are the legal heirs of Vara Prasad. The 1st defendant used to give share over the plaint schedule properties up to 2010, thereafter, he started acting against interest of the plaintiffs.

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35. It is vehemently argued by the learned counsel for the defendants, particularly, 4th defendant that due to non-joinder of daughters of defendants 1 and 2, the suit is not valid as held in the case of Vineet Sharma Vs. Rakesh

Sharma. In the absence of all the coparceners, claiming 18 shares is not valid.

The suit is bad for non-joinder of all the coparceners. In a suit for partition, the initial burden is on the plaintiffs to discharge the jointness.

36. It is further argued that except examination of PW1, no other independent witness was examined no documentary proof was filed and the other ancestral properties were not added and never questioned the registered sale deed dated 21-06-2006 and the previous sale deed is only questioned. The 1st defendant purchased the property from his retirement benefits under registered sale deed dated 21-06-2006 as such the joint and constructive possession does not arise. Except oral evidence, there is no documentary proof to show the jointness of the properties. The plaintiffs failed to prove that the 1st defendant sold some of the ancestral properties and that the sale consideration was paid by the 1st defendant and Vara Prasad for purchase of Item No.2 of the plaint schedule property.

37. On the other hand, the learned counsel for the plaintiffs vehemently argued that the suit is filed for partition of ancestral properties which are in the management of the 1st defendant. The 1st defendant is trying to alienate the schedule properties in favour of others and the plaintiffs demanded the 1st defendant for partition of the plaint schedule properties into two equal shares and to allot one such share to the plaintiffs. Subsequent to filing the suit, the 13

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defendants 1 and 2 executed sham and nominal document dated 07-08-2014 in favour of the 3rd defendant which is not binding the plaintiffs.

38. It is further argued that subsequent to filing suit, the 1st defendant executed a sham and nominal sale deed dated 23-12-2014 in respect of Item No.2 of the plaint schedule property in favour Tangella Srinivasu and the same is not binding on the plaintiffs. Subsequently, Tangella Srinivasu executed a sham and nominal document dated 09-01-2015 in favour of 4th defendant and the same is also not binding on the plaintiffs.

39. It is further argued that during cross-examination, DW1 admitted that he sold away the property in Siddapuram i.e. Item No.1 of the plaint schedule property without notice to the plaintiffs. The said property is ancestral property of

DW1. He also admitted that plaintiffs are residing in Item No.2 of the plaint schedule property for the last 17 years. He further admitted that by the date of sale, the plaintiffs are residing in the house i.e. Item No.2 of the plaint schedule property. Through the evidence of PWs1 to 3, the plaintiffs proved that the plaint schedule properties are ancestral properties and prayed to decree the suit.

40. Upon careful scrutiny of evidence on record, during cross- examination, DW1 admitted the relationship with the plaintiffs and categorically deposed that he is ready to give some amount out of his retirement benefits to the plaintiffs but they did not agree for the same. He further deposed that he proposed to give Rs.5 lakhs and house property to the plaintiffs but they denied to receive the same. He admitted that Item No.1 of the plaint schedule property is ancestral property and he denied the same in respect of Item No.2. He further 14

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admitted that he sold away the property in Siddapuram i.e. Item No.1 of the plaint schedule property without notice of the plaintiffs. He further admitted that by the date of sale, the plaintiffs were residing in the house and the said sale was held on 23-12-2014.

41. As per the evidence of DW1, so far as Item No.1 of the plaint schedule property is ancestral property. So, plaintiffs 1 to 3 have got share in the said property. The property was devolved on Vara Prasad, who is father of the plaintiffs 1 and 2 and husband of 3rd plaintiff. The plaintiffs failed to prove that

Vara Prasad agitated towards sale consideration of Item No.2 of the plaint schedule property i.e. under Ex.A8. So, Ex.A7 and A8 clearly establish that Item

No.2 of the plaint schedule properties is self-acquired property of the 1st defendant and Item No.1 of the plaint schedule property is ancestral property.

42. The plaintiffs 1 and 2 being the children and the 3rd plaintiff being the wife of Vara Prasad, who is son of defendants 1 and 2, got a share in the ancestral property i.e. Item No.1 of the plaint schedule property. However, ratio of share could not be decided here in the suit since as argued by the learned counsel of the 4th defendant, the plaintiffs failed to add the necessary parties to the suit.

The defendants 1 and 2 have got knowledge about the other necessary parties i.e.

their daughters, wherein, one of their daughter, by name, Padmaja died in the year 2004 and her husband died in the year 2005 leaving behind them their children namely Harish Venkata Sai and Supriya Santoshi. So it is argued by the learned counsel for the 4th defendant that non-joinder of necessary parties is fatal to the case of the plaintiffs.

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43. In fact, if any persons who are necessary to prove the fact on record, in a suit for partition, mere passing of preliminary decree does not said to be end of the litigation. Further, in a partition suit, the Court will only decide rights of the parties but not the shares. If at all, any coparcener or legal heir got any right, he can be joined at the stage of final decree.

44. It is clear from the evidence of the plaintiffs and pleadings of the plaintiffs and defendants that the defendants 1 and 2 blessed with one son and two daughters. One of the daughter, by name, Padmaja and her husband were died leaving behind them their legal representatives by name Harish Venkata Sai and Supriya Santoshi. The other daughter of the defendants 1 and 2 is Kolli

Venkata Lakshmi. It is the contention of the 4th defendant that both the daughters are not parties to the suit despite their marriages were performed after amendment to the Hindu Succession Act. However, the property was sold by the 1st defendant and he admitted that Item No.1 of the plaint schedule property is ancestral property. So, all the his legal heirs along with the 1st defendant got share in the said property i.e. 1st defendant, plaintiffs 1 to 3 i.e. share of deceased son of 1st defendant by name Vara Prasad, shares of the two daughters.

45. Though non-joinder of necessary parties in a suit for partition is not maintainable, but when the fact came to the knowledge of the defendants, they failed to join the necessary parties. The defendants also have got equal liability to join the necessary parties. Moreover, in this suit, particularly, the 4th defendant is not claiming any share over the property, as such, he has got every right to join 16

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them as necessary parties, since the 1st defendant executed sale deed in favour of

Saik Peer Basha.

46. During preliminary decree stage, in a suit for partition, only rights of the sharers will be decided. So, as per the averments of the written statement of 4th defendant, the two daughters of 1st defendant also got share in the ancestral properties.

47. As per the discussion stated supra, Item No.1 of the plaint schedule property is ancestral property and Item No.2 of the plaint schedule property is self-acquired property of the 1st defendant. Therefore, the plaintiffs 1 to 3 will get a share i.e. share of Vara Prasad, defendants 1 and 2 get a share, the daughters of the defendants 1 and 2 got each one share. Therefore, Item No.1 of the plaint schedule property, which is ancestral property, shall be divided into four equal shares and one such share allotted to the plaintiffs 1 to 3. Accordingly, these issues are answered.

48. I S S U E Nos.3:

Whether the father of the plaintiffs 1 and 2 received Rs.1 lakh towards full and final settlement over the

property belonging to the 1st defendant?

No. The plaintiffs proved that no amount was given by the 1st defendant though he alleged that father of the plaintiffs 1 and 2 received Rs.1 lakh towards full and final settlement but the 1st defendant failed to prove the said fact. Though, the 1st defendant filed a document said to have been executed by the deceased Vara Prasad, but no way it is useful to the 1st defendant.

Accordingly, this issue is answered.

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49. I S S U E No.4:

Whether the plaintiffs are in permanent possession in Item No.2 of the plaint schedule property?

Yes. The 1st defendant who examined as DW1 categorically admitted in his cross examination that the mother of the plaintiffs 1 and 2 i.e. 3rd plaintiff and the plaintiffs 1 and 2 are residing in Item No.2 of the plaint schedule property for the last 17 years. It is also agreed by the defendants 1, 2 and 4th defendant that possession of the plaintiffs 1 to 3 is permissive possession.

50. It is further contended by the plaintiffs that Item No.2 of the plaint schedule property alienated to Tangella Srinivasu who is none other than son in law of Pasarla Nageswara Rao i.e. 1st defendant. Therefore, the allegations made by the plaintiffs that the 1st defendant alienated Item No.2 of the plaint schedule property on 23-12-2014 is nothing but sham and nominal document since it is done during pendency of the suit. The suit is instituted for partition on 03-11-2014 but subsequently, the property was alienated by 1st defendant knowing fully well and without knowledge of the plaintiffs. Subsequently, Tangella Srinivasu alienated the property to the 4th defendant which is nonest in the eye of law.

Accordingly, this issue is answered.

51. Additional issue:

Whether the plaintiffs are entitled to seek cancellation of sale deed dated 09-01-2015 executed by Tangella Srinivasu in favour of the 4th defendant?

The sale deed dated 09-01-2015 is executed by Tangella Srinivasu who is none other than son in law of defendants 1 and 2, which is lack of 18

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consideration under registered document dated 23-12-2014. The transaction under the said sale deed dated 23-12-2014 is between the son in law and father in law and the said document is executed after commencement of the litigation. No doubt, the said property is self-acquired property of 1st defendant, however, by the date of sale in favour of Tangella Srinivasu, the plaintiffs 1 to 2 are very much present in the schedule property and they were residing therein for more than 12 years, which is hostile to the owner. Only for the purpose to avoid residence to the plaintiffs, the father in law of 3rd plaintiff executed sale deed in favour of

Tangella Srinivasu who in turn executed sale deed in favour of 4th defendant.

Therefore, no right, title and interest conveyed to Tangella Srinivasu, if at all, consideration is passed, the 1st defendant has to establish the same. No person is examined by the 1st defendant and his evidence is not believable in nature which is full of omissions and contradictions which are material in nature. Therefore, when once, no right, title and interest conveyed to a person, he cannot convey a better title. Accordingly, this issue is answered.

52.I S S U E No.7: To what relief?

In the result, suit is decreed partly passing preliminary decree for partition of Item No.1 of the plaint schedule property into four equal shares and allot one such share to the plaintiffs 1 to 3 being legal heirs of the deceased

Pasarla Vara Prasad, who is father of the plaintiffs 1 and 2 and husband of 3rd plaintiff, one share to the 1st defendant, one share to the deceased daughter of 1st defendant, by name, Sappa Padmaja and one share to the other daughter of 1st defendant by name Kolli Venkata Lakshmi. The other reliefs are concerned, the 19

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suit is dismissed. In the circumstances of the case, no costs.

Typed to my dictation to the Stenographer Gr.I on computer, corrected, signed and pronounced by me in open Court this the 4th day of April, 2024.

SD/- K. PRAKASH BABU

CIVIL JUDGE (SENIOR DIVISION),

TADEPALLIGUDEM

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFFS FOR DEFENDANTS

PW1Pasarla Rama DeviDW1Pasarla Nageswara Rao

PW2Pasarla Srinivasa Rao

PW3Varri Appala Satyam

PW4Matala Srinu

DOCUMENTS MARKED

For Plaintiffs:

Ex.A125-08-2014Office copy of legal notice got issued by the plaintiffs to the defendants 1 to 3.

Ex.A2-Returned postal cover.

Ex.A3-Returned postal cover.

Ex.A4-Postal acknowledgment.

Ex.A5-Postal receipt.

Ex.A6-Postal receipt.

Ex.A721-06-2006Registration extract of sale deed in favour of 1st defendant executed by Chelluri Chanti @ Mutyalamma and another.

Ex.A807-08-2014Registration extract of sale deed in favour of Shaik Peer Saheb executed by the defendants 1 and 2.

Ex.A909-01-2015Registration extract of sale deed in favour of 4th defendant executed by Tangella Srinivasu.

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O.S.No.357/2014 CJ (SD), TPG

FOR DEFENDANTS :-

Ex.B1-Marriage invitation.

Ex.B222-06-2013Legal notice got issued by the 1st defendant to the 3rd p,

Ex.B3-Proceedings of RPAO, Survey of India, Hyderabad in respect of sanction of arrears of 6th Pay Revision Commission.

ILD/-KPB

CJ(SD),

TPG 21

O.S.No.70/2012 CJ (SD), TPG

IN THE COURT OF CIVIL JUDGE (SENIOR DIVISION): TADEPALLIGUDEM

Present:- Sri K. Prakash Babu,

Civil Judge (Senior Division)

Wednesday, the 3rd day of April, 2024

O.S.No.70/2012

Between:

1.Gadde Chittibabu (died).

2.Gadde Vijayalakshmi Kumari, w/o. late Chittibabu, Hindu, female, aged 54 years, properties, r/o. D.No.8-35, Pothavaram, Nallajarla Mandal, West Godavari District.

3.Gadde Pardhasaradhi, S/o. late Chittibabu, Hindu, male, aged 37 years, cultivation, r/o. D.No.8-35, Pothavaram, Nallajarla Mandal, West Godavari District.

4.Gadde Krishna Chaitanya, S/o. late Chittibabu, Hindu, male, aged 36 years, cultivation, r/o. D.No.8-35, Pothavaram, Nallajarla Mandal, West Godavari District.

5.Gadde Uma Mahesh, S/o. late Chittibabu, Hindu, male, aged 34 years, cultivation, r/o. D.No.8-35, Pothavaram, Nallajarla Mandal, West Godavari District.

(Plaintiffs 2 to 5 are added as legal heirs of the deceased 1st plaintiff as per the orders in I.A.No.1258/2014 dated 30-11-2021). … Plaintiffs

And

1.Gannamani Chandravathi, W/o. Satyanarayana, female, aged 75 years, cultivation, r/o. D.No.1-155(A), Pothavaram, Nallajarla Mandal, West Godavari District (died).

2.Morampudi Sithamahalakshmi, W/o. Babu Rao, female, aged 45 years, housewife, r/o. D.No.3-33-1, Surampalem, Chanubanda Mandal, Krishna District.

3.Ghanta Manohari, W/o. Rama Rao, female, aged 40 years, housewife, r/o. D.No.4-32-1, Makkinavarigudem, Jeelugumilli Mandal, West Godavari District.

4.Gannamani Venkata Subba Rao, S/o. Satyanarayana, male, aged, 37 years, cultivation, r/o. D.No.1-159, Pothavaram, Nallajarla Mandal, West Godavari District. … Defendants 1

O.S.No.70/2012 CJ (SD), TPG

This suit is coming on 01-04-2024 for final hearing before me in the presence of Sri K. Subrahmanya Sharma, Counsel for the Plaintiffs and of Sri G.V. Dwarakanadh, Counsel for the Defendants 2 and 3, Smt. G.K. Durga Devi, Counsel for the 4th defendant and the 1st defendant died and the matter having stood over for consideration till this day, this Court delivered the following:

J U D G M E N T

Initially, this suit is filed by the deceased 1st Plaintiff against the defendants for partition of the plaint schedule property into three equal shares and to allot 1/3rd share to the deceased 1st plaintiff and to hand over possession, for future mesne profits and for costs of the suit.

2. The brief facts stemming out of the plaint are:

The 1st defendant is sister and the defendants 2 and 3 are daughters of another sister by name Makkina Papayamma of the deceased 1st plaintiff. The 4th defendant is son of the 1st defendant. The deceased 1st plaintiff and his father by name Gadde Rama Seshanna had joint family properties. The deceased 1st plaintiff filed suit O.S.No.117/1988 against his father, mother and sisters on the file of the Senior Civil Judge's Court, Tadepalligudem for partition of all the joint family properties.

3. It is further submitted that subsequently the said suit was compromised and the terms of compromise was reduced into writing and the suit was referred to Lok Adalat for recording of compromise and compromise decree was passed on 15-03-1997. As per the terms of Award passed by the Lok Adalat, 2

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an extent of Ac.3-20 cents and Ac.3-00 cents in R.S.No.154/1 of Pothavaram respectively to the share of mother of the deceased 1st plaintiff, by name, Gadde

Venkayamma, who is 4th defendant in O.S.no.117/1988. In respect of Ac.3-00 cents in R.S.no.154/1 only life estate was given to Venkayamma and vested remainder was given to the deceased 1st plaintiff.

4. It is further submitted that as per the terms of the Award, all the shares enjoyed their share of properties. Subsequently, mother of the deceased 1st plaintiff died intestate on 19-04-1998 and after her death, the plaint schedule property devolved upon the deceased 1st plaintiff and the defendants 1 to 3 being legal heirs of Venkayamma. The defendants 2 to 3 are daughters of late Makkina

Papayamma and she died intestate in the year 1996. Makkina Papayamma is sister of the deceased 1st plaintiff and she is also having undivided 1/3rd share in the plaint schedule property and hence, the defendants 2 and 3 were added as necessary parties.

5. It is further submitted that the 1st defendant executed a registered settlement deed dated 10-06-1997 in favour of the 4th defendant, which is not binding on the deceased 1st plaintiff and he is in joint possession of the plaint schedule property. The deceased 1st plaintiff not interested to continue in joint in the plaint schedule property along with the defendants. Hence, the suit.

6. On the other hand, the 1st defendant filed written statement denying the material allegations in the plaint and submitted that the plaintiff filed 3

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the suit by suppressing the real facts. The plaintiff has no right, title or possession in the plaint schedule property.

7. It is submitted that Gadde Ramaseshanna and Gadde Venkayamma are husband and wife and they are parents of the plaintiff. Gadde Ramaseshanna and Gadde Venkayamma have two daughters namely Makkina Papayamma, and

Gannamani Chandravathi. The 1st defendant is the eldest son of Gannamanı

Chandravathi. Gadde Ramaseshanna died in the year 1992. The plaintiff herein filed suit in O.S.No.117/1988 on the fie of the Subordinate Judge's Court,

Tadepalligudern against Gadde Ramaseshanna. During pendency of that suit,

Gadde Ramaseshanna died. Hence, the wife o Gadde Ramaseshanna namely

Gadde Venkayamnna and his daughters namely Makkina Papayamma and

Gannamani Chandravathi were added in the above suit as legal heirs of Gadde

Ramaseshanna.

8. It is further submitted that during pendency of that suit Makkina

Papayamma also died and her legal heirs were also added in that suit. The defendants 2 and 3 are daughters of Makkina Papayamma. Gadde Ramaseshanna executed a registered settlement deed dated 10-8-1988 conveying land in an extent of Ac.6-50 cents in R.S.No.160/1 of Pothavaram Village in favour of Gadde

Venkayamma and delivered possession of the same to her. Taking consideration of all the facts, the above suit in O.S.No.117/1988 was compromised and the plaint schedule property was given towards rights and share of Gadde 4

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Venkayamma and possession of the plaint schedule property was given to Gadde

Venkayamma. The land covered under the registered settlement deed dated 10- 08-1988 was given to the deceased 1st plaintiff. The total extent of the Land in

R.S.No.154/1 is an extent of Ac.10-20 cents. Out of it, the Southern Ac.2-00 cents of the land was settled in favour of Makkina Papayamma under the registered settlement deed by Gadde Ramaseshanna, the land in an extent of Ac.2-00 cents on the North of the same was settled in favour of Gannamani Chandravathi under the registered settlement deed by Gadde Ramaseshanna and the remaining Ac.6- 20 cents on the North of the same belonged to Gadde Venkayamma. All these facts were admitted in the above compromise in the above suit. An extent of

Ac.3-20 cents was given with absolute rights to Gadde Venkayamma and Ac.3-00 cents was given with life estate. It is submitted that even then in view of Section 14(2) of Hindu Succession Act of 1956, Gadde Venkayamma became absolute owner of the plaint schedule property. The legal heirs of Makkina Papayamma executed a registered Sale deed dated 21-05-1998 in favour of the 2nd defendant conveying the Southern Ac.2-00 cents of land in R S.No.154/1 of Pothavaram

Village and the 2nd defendant took possession of the same.

9. It is submitted that the 1st defendant executed a registered settlement deed dated 30-06-2003 in favour of the 4th defendant conveying the land in an extent of Ac 2-00 cents in R.S. No.154/1 of Pothavaram Village and the 4th defendant took possession of the same. Gadde Venkayamma executed a 5

O.S.No.70/2012 CJ (SD), TPG

Registered Settlement Deed dated 10-06-1997 conveying the land in an extent of

Ac.3-20 cents in R.S.No.154/1 including the right in the bore-well, Electrical

Service Connection etc in favour of the 4th defendant and as such the 4th defendant took possession of the same. Gadde Venkayamma executed a Will

dated 14-04-1998 in a sound and disposing state e of mind bequeathing all her

properties including the plaint schedule property to the 4th defendant and she died on 19-04-1998 and the said Will is her last testament.

10. It is submitted that during the life time of Gadde Venkayamma also, the 4th defendant used to cultivate the entire land of Ac.10-20 cents as tenant.

The deceased 1st plaintiff completely neglected his mother namely Gadde

Venkayamma. The 4th defendant, his wife and Gadde Venkayamma used to live as a family and they looked after the welfare, health and maintenance of Gadde

Venkayamma and they alone performed the expenditure for obsequies of Gadde

Venkayamma. The plaintiff came to the burial ground to do religious ceremony to

Gadde Venkayamma on reprimand of the elders only. The 4th defendant has been in possession and enjoyment of the plaint schedule property and got absolute right over the plaint schedule property and prayed to dismiss the suit.

11. The defendants 2 and 3 filed written statement denying the material allegations in the plaint and submitted that their mother by name Makkina

Papayamma, the deceased 1st plaintiff and 1st defendant are the legal heirs of

Gadde Venkayamma. The deceased 1st plaintiff filed suit O.S.No.117/1988 on the 6

O.S.No.70/2012 CJ (SD), TPG

file of the Senior Civil Judge, Tadepalligudem for partition of the properties and in the said suit compromise was reduced into writing and the matter was referred to

Lok Adalat on 15-03-1997 and the Lok Adalat, Tadepalligudem passed compromise decree.

12. It is further submitted that as per the Lot Adalat Award, the plaint schedule property fell to the share of mother of the plaintiff by name Gadde

Venkayamma and she got life estate only over the property and she died intestate on 19-04-1988 and after her death, the plaint schedule property devolved on the deceased 1st plaintiff and the defendants 1 to 3. All the sharers are in joint possession and enjoyment of the same and the defendants 2 and 3 are entitled to a share.

13. It is further submitted that the settlement deed dated 19-06-1997 is not binding on them since the said document was registered after the death of

Gadde Venkayamma. The defendants 2 and 3 and the plaintiffs no longer interested to continue in joint along with the 1st defendant and the plaint schedule property has to be partitioned and prayed to pass decree allotting share to them in the plaint schedule property.

14. The 4th defendant filed written statement denying the material allegations in the plaint and submitted that the plaintiff filed the suit by suppressing the real facts. The plaintiff has no right, title or possession in the plaint schedule property.

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O.S.No.70/2012 CJ (SD), TPG

15. It is submitted that Gadde Ramaseshanna and Gadde Venkayamma are husband and wife and they are parents of the plaintiff. Gadde Ramaseshanna and Gadde Venkayamma have two daughters namely Makkina Papayamma and

Gannamani Chandravathi. The 1st defendant is the eldest son of Gannamanı

Chandravathi. Gadde Ramaseshanna died in the year 1992. The plaintiff herein filed suit in O.S.No.117/1988 on the fie of the Subordinate Judge's Court,

Tadepalligudern against Gadde Ramaseshanna. During pendency of that suit,

Gadde Ramaseshanna died. Hence, the wife o Gadde Ramaseshanna namely

Gadde Venkayamnna and his daughters namely Makkina Papayamma and

Gannamani Chandravathi were added in the above suit as legal heirs of Gadde

Ramaseshanna.

16. It is further submitted that during pendency of that suit Makkina

Papayamma also died and her legal heirs were also added in that suit. Gadde

Ramaseshanna executed a registered settlement deed dated 10-08-1988 conveying land in an extent of Ac.6-50 cents in R.S.No.160/1 of Pothavaram

Village in favour of Gadde Venkayamma and delivered possession of the same to her. Taking consideration of all the facts, the above suit in O.S.No.117/1988 was compromised and the plaint schedule property was given towards rights and share of Gadde Venkayamma and possession of the plaint schedule property was given to Gadde Venkayamma. The land covered under the registered settlement deed

dated 10-08-1988 was given to the plaintiff. The total extent of the Land in

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O.S.No.70/2012 CJ (SD), TPG

R.S.No.154/1 is an extent of Ac.10-20 cents. Out of it, the Southern Ac.2-00 cents of the land was settled in favour of Makkina Papayamma under the registered settlement deed by Gadde Ramaseshanna, the land in an extent of Ac.2-00 cents on the North of the same was settled in favour of Gannamani Chandravathi under the registered settlement deed by Gadde Ramaseshanna and the remaining Ac.6- 20 cents on the North of the same belonged to Gadde Venkayamma. All these facts were admitted in the above compromise in the above suit. An extent of Ac.3- 20 cents was given with absolute rights to Gadde Venkayamma and Ac.3-00 cents was given with life estate.

17. It is submitted that even then in view of Sec.14 (2) of Hindu

Succession Act of 1956, Gadde Venkayamma became absolute owner of the plaint schedule property. The legal heirs of Makkina Papayamma executed a registered

Sale deed dated 21-5-1998 in favour of Gannamani Subbalakshmi conveying the

Southern Ac.2-00 cents of land in R S.No.154/1 of Pothavaram Village and the 2nd defendant took possession of the same.

18. It is submitted that the 1st defendant executed a registered settlement deed dated 30-06-2003 in favour of the 4th defendant conveying the land in an extent of Ac 2-00 cents in R.S. No.154/1 of Pothavaram Village and the 4th defendant took possession of the same. Gadde Venkayamma executed a

Registered Settlement Deed dated 10-06-1997 conveying the land in an extent of

Ac.3-20 cents in R.S.No.154/1 including the right in the bore-well, Electrical 9

O.S.No.70/2012 CJ (SD), TPG

Service Connection etc., in favour of the 4th defendant and as such the 4th defendant took possession of the same. Gadde Venkayamma executed a Will

dated 14-04-1998 in a sound and disposing state e of mind bequeathing all her

properties including the plaint schedule property to the 4th defendant and she died on 19-04-1993 and the said Will is her last testament.

19. It is submitted that during the life time of Gadde Venkayamma also, the 4th defendant used to cultivate the entire land of Ac.10-20 cents as tenant.

The deceased 1st plaintiff completely neglected his mother namely Gadde

Venkayamma. This defendant, his wife and Gadde Venkayamma used to live as a family and the they looked after the welfare, health and maintenance of Gadde

Venkayamma and they alone performed the expenditure for obsequies of Gadde

Venkayamma. The plaintiff came to the burial ground to do religious ceremony to

Gadde Venkayamma on reprimand of the elders only. The plaintiff filed a petition vide I.A. No.495/1999 in O.S.No.117/1998 with false allegations stating that

Ac.3-20 cents also was given to Gadde Venkayamma with life interest only and the said petition was dismissed on 28-11-2002 and the final decree was passed as per the terms of compromise only.

29. It is further submitted that there is a bore-well, bore and shed on the

Northern side of entire Ac.10-20 cents in R.S No.154/1 of Pothavaram Village to which the plaint schedule property is a part. This defendant purchased 7.5 H.P.

Motor at Surya Enterprises, Jangareddigudem on 02-11-2001 and fixed the same 10

O.S.No.70/2012 CJ (SD), TPG

and later the 1st defendant purchased 12.5 H.P Texmo Motor with Pump on 13- 02-200 from Surya Enterprises and the same was installed on the above bore. This defendant and his wife have been using that Motor and Pump and Electrical

Service Connection and they have been raising Virgenia Tobacco in Ac.9-20 cents and Jadu Crop in Ac.1-00 cents. This defendant and his wife alone have been paying Electrical Charges to the Electrical Service connection situated in the plaint schedule property. As the Electrical Service Connection is in the name of Gadde

Ramaseshanna, now and then the demand notice of service charges used to go to the residence of plaintiff. The plaintiff created false evidence of receipts taking advantage of the same to create false evidence only and plaintiff never paid the

Electrical consumption charges for the bore-well situated in the plaint schedule property. There is no land revenue to the plaint schedule property. The defendants obtained Pattadar Pass Books for the entire Ac.10-20 cents in

R.S.No.154/1 of Pothavaram Village including the plaint schedule property.

21. The deceased 1st plaintiff filed suit in O.S.No.481/2008 on the file of the Principal Junior Civil Judge, Tadepalligudem for permanent injunction with false allegations and obtained ex-parte injunction order. This defendant and his wife filed their written statement in that suit stating the above facts. The deceased 1st plaintiff filed another suit O.S.No.107/2010 on the file of this Court with false allegations against this defendant and his wife and the plaintiff did not file any application under order 23 of C.PC. to withdraw the suit. The plaintiff filed only a 11

O.S.No.70/2012 CJ (SD), TPG

Memo to dismiss the suit O.S.No.481/2008 without costs. So, the Junior Civil

Judge, Tadepalligudem dismissed the suit with costs on 18-03-2010. So, the

Judgement dated 18-03-2010 in O.S.No.481/2008 on the file of the Junior Civil

Judge, Tadepalligudem becomes final and conclusive and as such the suit is

barred by the doctrine of resjudicata under sec.11 of CPC. This suit is also barred under order 2 rule 2 of C.PC. This defendant has been in possession and enjoyment of the plaint schedule property even prior to the death of Gadde

Venkayamma and thereafter till today and prayed to dismiss the suit.

22. Basing on the above pleadings of the Plaintiffs as well as the

Defendants, the following issues are settled for trial by my predecessor:

1. Whether Gadde Venkayamma is absolute owner of the plaint schedule property?

2. Whether Gadde Venkayamma executed settlement deed dated 10-06-1997 in favour of 4th defendant is true and 4th defendant is in absolute possession of the same?

3. Whether plaintiffs are entitled for partition as prayed for, if so, to what relief?

4. Whether the suit is hit by Principle of Resjudicata under Section 11 of CPC and bad under Order II Rule 2 CPC?

5. Whether plaintiffs are entitled for future mense profits?

6. To what relief?

23. In support of the case of the plaintiff, the 5th plaintiff is examined as

PW1 and got marked Exs.A1 to A3. On behalf of the defendants, the 1st defendant is examined as DW1, got examined DW.2 and got marked Exs.B1 to B4.

24. Heard both sides. I have given my earnest consideration to the respective submissions of counsel for the plaintiffs as well as defendants. Perused 12

O.S.No.70/2012 CJ (SD), TPG

the written arguments submitted by plaintiffs and defendants.

25. I S S U E Nos.1 to 5:

Whether Gadde Venkayamma is absolute owner of the plaint schedule property?

Whether Gadde Venkayamma executed settlement deed

dated 10-06-1997 in favour of 4th defendant is true and 4th

defendant is in absolute possession of the same?

Whether plaintiffs are entitled for partition as prayed for, if so, to what relief?

Whether the suit is hit by Principle of Resjudicata under Section 11 of CPC and bad under Order II Rule 2 CPC?

Whether plaintiffs are entitled for future mense profits?

This is a peculiar suit, as such, all the issues are answered once without going into the merits and demerits of the evidence, documents and other aspects since the parties to the proceedings and plaint schedule properties are one and the same in this suit and in the former suit O.S.No.117/1988 except legal representatives in place of the dead persons.

26. This suit is filed basing on compromise decree before the Lok Adalat.

The cause of action for the suit goes to show that the plaintiff filed suit

O.S.No.117/1988 for partition of the plaint schedule properties and subsequently

on 15-03-1997 the parties to the former suit appeared before the Lok Adalat and submitted Ex.A1 herein i.e. terms of compromise in respect of the plaint schedule properties. Then, the Lok Adalat, Tadepalligudem passed Compromise Decree by 13

O.S.No.70/2012 CJ (SD), TPG

dismissing the suit against the 5th defendant in O.S.No.117/1988. It is the story of the deceased 1st plaintiff that basing on the compromise decree which was entered into between the parties before the Lok Adalat and allotted respective shares to the parties and on 19-04-1998 when the mother of the deceased 1st plaintiff died intestate and immediately after the death of mother of the deceased 1st plaintiff, the deceased 1st plaintiff took possession of the property and cultivated the same till 17-02-2009 and on 18-02-2009 when the defendants 1 and 2 forcibly occupied the plaint schedule property and they are proclaiming in the village that they will alienate the property.

27. The suit was taken on file basing on the pleadings. Written statements were filed by the defendants. During pendency of suit, the 1st plaintiff died and the plaintiffs 2 to 5 were added as his legal representatives.

28. This suit is filed for partition and the Court framed issues and recorded evidence and received documents at various stages after commencement of trial. When the matter is posted for judgment, surprisingly, Ex.A1 certified copy of compromise filed by the deceased 1st plaintiff under Order XXIII Rule 3 CPC in

O.S.No.117/1988 was filed.

29. Upon careful scrutiny of the said document, it is only a petition filed under Order XXIII Rule 3 and Section 151 CPC, wherein, the deceased 1st plaintiff who is also plaintiff in O.S.No.117/1988 and one Gadde Venkayamma from whom the deceased 1st plaintiff is claiming right, title and interest is 4th defendant 14

O.S.No.70/2012 CJ (SD), TPG

therein. It is only a proposal made before the Court. Whether decree was passed with the conditions mentioned therein under Ex.A1 by the then Subordinate

Judge, Tadepalligudem not came to the light by filing copy of compromise decree

or copy of the same to substantiate that the said compromise acted upon.

30. However, this Court after taking due care by exercising powers vested under judicial notice under Indian Evidence Act, addressed a letter to the

Honourable Principal District Judge, West Godavari, Eluru calling for the record

O.S.No.117/1988 to avoid miscarriage of justice.

31. Now, on careful reading of the entire docket orders in

O.S.No.117/1988, after the date of decree i.e. 15-03-1997, a petition in

I.A.No.495/1999 was filed for amendment of the compromise terms and the then

Subordinate Judge dismissed the said petition stating that award of Lok Adalat cannot be changed. So, the Award passed by the Lok Adalat, Tadepalligudem became finality of the lis i.e. partition in O.S.No.117/1988.

32. After passing the decree, the then Subordinate Judge directed the parties to file Non-Judicial Stamps for engrossing final decree in terms of compromise. But, the Court contradicting itself, in spite of collecting Non-Judicial

Stamps which is a ministerial work, inadvertently, dismissed the suit on 23-04-2002. By virtue of Lok Adalat Award, O.S.No.117/1988 became final for partition in respect of the plaint schedule properties. No Court has got any right to lay its hands after the matter became final, particularly, in this particular case, 15

O.S.No.70/2012 CJ (SD), TPG

after passing award by the Lok Adalat which is a decree in its nature and no appeal is preferred against the said Award.

33. So, it is clear from the docket orders in O.S.No.117/1988, award is final but for the reasons best known to the deceased 1st plaintiff, again he filed this suit and now he is seeking declaration for part of the property partitioned as the Testator executed a Will even prior to the decree.

34. Even otherwise considered, whether the Testator Venkayamma executed the Will or not is material since the Award passed by the Lok Adalat is final so far as the property of the share of Venkayamma holds good and by the date of Award, she is very much alive. So, if this Court considers that the suit is dismissed by the Subordinate Judge, again parties to the present suit have to agitate by way third round of litigation.

35. At this Stage, this Court relied on the judgment of the Honourable

Supreme Court in the case of 1 between Kale & Others vs Deputy Director Of

Consolidation and Others, wherein, Their Lordships categorically held that - " Generally condition for the validity of family arrangements, it is not necessarily so. Even bona fide dispute present or possible, which may not involve legal claims would be sufficient. Members of a joint Hindu family may to maintain peace or to bring about harmony in the family, enter into such a family arrangement. If such an agreement is entered into bona fide and the terms thereto are fair in the circumstances of a particular case, the courts would more readily give assent to such an agreement than to avoid it." 1AIR 1976 Page No.807 16

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"Thus it would appear from a review of the decisions analysed above that the Courts have taken a very liberal and broad view of the validity of the family settlement and have always tried to uphold it and maintain it. The central idea in the approach made by the Courts is that if by consent of parties a matter has been settled, it should not be allowed to be re-opened by the parties to the agreement on frivolous or untenable grounds"

36. So, it is clear from the above judgment of the Honourable Apex Court that where a family settlement though it is not registered, the Courts have to assent them without disturbing the same. The intention of the Honourable Apex

Court is that once a settled matter shall not be unsettled for want of legalities.

The core intention of the Honourable Apex Court is that the harmony of the family arrangement shall not be disturbed.

37. Here in the present case on hand also, the arrangement among the family members i.e. plaintiffs and the defendants arrived at a compromise and the

Subordinate Court of Tadepalligudem assented it and call it a day by passing Lok

Adalat Award and later it is disagreed to change it by assenting it as final.

38. However, subsequently on 23-04-2002, the Subordinate Court,

Tadepalligudem passed an erroneous order by dismissing the suit

O.S.No.117/1988 without having any jurisdiction. The cause of action for the suit

was already settled in O.S.No.117/1988 by passing Lok Adalat Award and the award is acted upon by way of finality i.e. putting the parties in their respective shares, until then the properties are said to be status of jointness and to be 17

O.S.No.70/2012 CJ (SD), TPG

considered as rights of the parties. Otherwise, as stated supra, the third round of litigation commences by reopening the succession. But, this Court is of the opinion that the orders of dismissal is written by the Court is of no value since collection of

Non-Judicial stamps is ministerial duty. Until and unless the final decree is passed by the Court, the preliminary decree holds good. Limitation for execution of any final decree, as per the Limitation Act is 12 years under Article 136.

39. Therefore, it is clear from the above discussion, there is no need to answered issue Nos.1 to 5 with the help of the available evidence on record. The compromise arrived at between the parties holds good until it is set aside by the competent authority i.e. by the Honourable High Court or the Honourable

Supreme Court. The order of dismissal itself is lack of jurisdiction. After passing of Lok Adalat Award, the Subordinate Court has no jurisdiction to lay its hand to pass any orders. The orders passed without jurisdiction can be rectified in the subsequent suit since the orders of the Court is only irregular but not illegal. The irregular orders can be set right by way of orders of Court since the Court ought not have passed such orders which causes prejudice to the parties to the suit. It is the duty of the Court to set right such orders in subsequent proceedings in the interest of justice and to see that justice shall not be miscarried.

40. As such, the parties are at liberty to implement the Lok Adalat Award passed on 15-03-1997. The period of pendentilite recons in this suit from the date of passing the erroneous order to the date of disposal of this suit i.e. from 23-04- 18

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2002 to 03-04-2024 except any period that was abandoned by the plaintiffs in not bringing the suit i.e. after passing award, a petition vide I.A.No.495/1999 was filed and the same was disposed of on 23-11-2000 and the said period shall also be reckoned as pendentilite.

41. So, it is clear basing on the ratio laid down in the judgment of Kale and others Vs. Deputy Director of Consolidation and others, the harmony of the family arrangement shall not be disturbed when the matter is already settled among the family members and the Court can give assent to the family arrangement. Therefore, the Lok Adalat Award passed in O.S.No.117/1988 is final and the parties to the proceedings can proceed further according to law.

42. Therefore, it is clear from the above discussion that the parties are at liberty to seek final decree basing on the compromise but not by way of suit for declaration. As such, this Court could not find any merits in the suit and the same is liable to be dismissed. Accordingly, these issues are answered.

43. I S S U E No.6: To what relief?

In the result, suit is dismissed without costs.

Typed to my dictation to the Stenographer Grade-I on computer, corrected, signed on the draft judgment and pronounced by me in open Court this the 3rd day of April, 2024 and digitally signed.

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O.S.No.70/2012 CJ (SD), TPG

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFFS FOR DEFENDANTS

PW1 Gadde Uma Mahesh DW1 Gannamani Venkata Subba Rao

DW2 Prathipati Venkataratnam

DOCUMENTS MARKED

For Plaintiffs:

Ex.A1-Certified copy of compromise petition in O.S.No.117/1988 on the file of Senior Civil Judge's Court, Tadepalligudem.

Ex.A2 15-03-1997 Certified copy of Award passed by the Lot Adalat in

O.S.No.117/1988.

Ex.A3 10-06-1997 Registration extract of settlement deed executed by Gadde Venkayamma in favour of 4th defendant.

For Defendants:

Ex.B110-06-1997Settlement deed executed by Gadde Venkayamma in faovur of 4th defendant.

Ex.B2 19-09-2008 Registration extract of settlement deed executed by 1st defendant in favour of his wife Subbalakshmi.

Ex.B3 - Certified copy of petition filed by the deceased 1st plaintiff vide I.A.No.495/1999 in O.S.No.117/1988 on the file of

Senior Civil Judge's Court, Tadepalligudem.

Ex.B4 17-02-2009 Certified copy of order in I.A.No.3280/2008 in

O.S.No.484/2008 along with schedule.

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O.S.No.107/2010 CJ (SD), TPG

IN THE COURT OF CIVIL JUDGE (SENIOR DIVISION): TADEPALLIGUDEM

Present:- Sri K. Prakash Babu,

Civil Judge (Senior Division)

Wednesday, the 3rd day of April, 2024

O.S.No.107/2010

Between:

1.Gadde Chittibabu (died).

2.Gadde Vijayalakshmi Kumari, w/o. late Chittibabu, female, aged 54 years, properties, r/o.D.No.8-35, Pothavaram, Nallajarla Mandal, West Godavari District.

3.Gadde Pardhasaradhi, S/o. late Chittibabu, male, aged 37 years, cultivation, r/o. D.No.8-35, Pothavaram, Nallajarla Mandal, West Godavari District.

4.Gadde Krishna Chaitanya, S/o. late Chittibabu, male, aged 36 years, cultivation, r/o. D.No.8-35, Pothavaram, Nallajarla Mandal, West Godavari District.

5.Gadde Uma Mahesh, S/o. late Chittibabu, male, aged 34 years, cultivation, r/o. D.No.8-35, Pothavaram, Nallajarla Mandal, West Godavari District.

(Plaintiffs 2 to 5 are added as legal heirs of the deceased 1st plaintiff as per the orders in I.A.No.1258/2014 dated 30-11-2021).

… Plaintiffs

And

1.Gannamani Venkata Subba Rao, S/o. Satyanarayana, male, aged 42 years, cultivation, r/o. D.No.1-159, Pothavaram, Nallajarla Mandal, West Godavari District.

2.Gannamani Subba Lakshmi, W/o. Venkata Subba Rao, female, aged 37 years, housewife, r/o. D.No.1-159, Pothavaram, Nallajarla Mandal, West Godavari District. … Defendants

This suit is coming on 01-04-2024 for final hearing before me in the presence of Sri K. Subrahmanya Sharma, Counsel for the Plaintiffs and of Smt. G.K. Durga Devi, Counsel for the 1st Defendant, Sri N.V. Satyanarayana, Counsel for the 2nd defendant and the matter having stood over for consideration till this day, this Court delivered the following:

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O.S.No.107/2010 CJ (SD), TPG

J U D G M E N T

Initially, this suit is filed by the deceased 1st Plaintiff against the defendants to declare the deceased 1st plaintiff as absolute owner of the plaint schedule property, for possession of the plaint schedule property after ejecting the defendants 1 and 2 there from within the time stipulated by the Court, otherwise, the same shall be done through process of law, for past profits and for costs of the suit. In the amended plaint, the plaintiffs also prayed for the past and future profits.

2. The brief facts stemming out of the plaint are:

The deceased 1st plaintiff and his father had joint family properties and that the deceased 1st plaintiff filed suit O.S.No.117/1988 on the file of the

Senior Civil Judge's Court, Tadepalligudem against his father, mother and sisters

for partition and separate possession of his share of properties mentioned in the plaint schedule in O.S.No.117/1988.

3. It is further submitted that subsequently the said suit was compromised on the intervention of the elders and the said suit was transferred to

Lok Adalat for recording compromise and on 15-03-1997, Lok Adalat passed decree. As per the award passed by the Lok Adalat, an extent of Ac.3-20 cents and Ac.3-00 cents in R.S.No.154/1 of Pothavaram respectively fell to the share of 2

O.S.No.107/2010 CJ (SD), TPG

mother of plaintiff, by name, Gadde Venkayamma. In respect of Ac.3-00 cents in

R.S.No.154/1 only life estate was given to Venkayamma and vested remainder was given to the deceased 1st plaintiff.

4. It is further submitted that as per the terms of the Award, all the shares enjoyed their share of properties. Subsequently, mother of the deceased 1st plaintiff died intestate on 19-04-1998 and immediately after her death, the deceased 1st plaintiff took possession of the plaint schedule property. There is a bore-well in the middle of Item Nos.1 and 2 with electrical service connection

No.346.

5. It is further submitted that the 1st defendant with an intention to change and shift the electrical service connection in his name, made an application on 23-02-2004 by forging signature of father of the deceased 1st plaintiff and that the deceased 1st plaintiff filed C.C.No.349/2008 against the 1st defendant and others under Section 468 of IPC and the same is pending.

6. It is submitted that on 23-10-2008, the 1st defendant along with his men made an attempt to occupy the plaint schedule property and that the deceased 1st plaintiff filed O.S.No.481/2008 on the file of the Principal Junior Civil

Judge's Court, Tadepalligudem for permanent injunction and subsequently he

withdrawn the said suit.

7. It is further submitted that the defendants have no manner of right 3

O.S.No.107/2010 CJ (SD), TPG

in respect of the plaint schedule property and the deceased 1st plaintiff perfected his title to the same in terms of compromise award passed by Lok Adalat on 15-03-1997. The alleged Will dated 14-04-1988 alleged to have been executed by mother of the plaintiff in favour of the 1st defendant in respect of the plaint schedule property does not bind the deceased 1st plaintiff since the Testator of said Will is having only life interest and vested remainder right is with the plaintiff as per the award passed by the Lok Adalat.

8. It is submitted that the 1st defendant brought into existence settlement deed dated 19-09-2008 in favour of the 2nd defendant, who is his wife, and the same is not binding on the deceased 1st plaintiff. The defendants 1 and 2 have no manner of right to interfere with possession and enjoyment of the deceased 1st plaintiff and the Mandal Revenue Officer also issued Possession and

Enjoyment Certificate dated 16-01-2009 and also cancelled the pattadar passbook and title deeds of the defendants as per the orders dated 25-10-2008 in respect of the plaint schedule property and the remaining Ac.3-20 cents. It is further submitted that the defendants are trying to alienate the property to create trouble to the plaintiffs. The defendants have no manner of right, title and interest over the plaint schedule properties. Hence, the suit.

9. On the other hand, the defendants filed written statement denying the material allegations in the plaint and submitted that the plaintiff filed the suit by suppressing the real facts. The allegation that the mother of the plaintiff 4

O.S.No.107/2010 CJ (SD), TPG

namely Gadde Venkayamma has only life estate with vested remainder to the plaintiff in the plaint schedule property and the plaintiff is the owner of the plaint schedule property with possession etc are all not true and correct. The plaintiff has no right, title or possession in the plaint schedule property.

10. It is submitted that Gadde Ramaseshanna and Gadde Venkayamma are husband and wife and they are parents of the plaintiff. Gadde Ramaseshanna and Gadde Venkayamma have two daughters namely Makkina Papayamma and

Gannamani Chandravathi. The 1st defendant is the eldest son of Gannamanı

Chandravathi. Gadde Ramaseshanna died in the year 1992. The plaintiff herein filed suit O.S.No.117/1988 on the fie of the Subordinate Judge's Court,

Tadepalligudern against Gadde Ramaseshanna. During pendency of that suit,

Gadde Ramaseshanna died. Hence, the wife of Gadde Ramaseshanna, namely,

Gadde Venkayamma and his daughters namely Makkina Papayamma and

Gannamani Chandravathi were added in the above suit as legal heirs of Gadde

Ramaseshanna.

11. It is further submitted that during pendency of that suit Makkina

Papayamma also died and her legal heirs were also added in that suit. Gadde

Ramaseshanna executed a registered settlement deed dated 10-08-1988 conveying land in an extent of Ac.6-50 cents in R.S.No.160/1 of Pothavaram

Village in favour of Gadde Venkayamma and delivered possession of the same to her. Taking consideration of all the facts, the above suit O.S.No.117/1988 was 5

O.S.No.107/2010 CJ (SD), TPG

compromised and the plaint schedule property was given towards rights and share of Gadde Venkayamma and possession of the plaint schedule property was given to Gadde Venkayamma. The land covered under the registered settlement deed

dated 10-08-1988 was given to the plaintiff. The total extent of the Land in

R.S.No.154/1 is an extent of Ac. 10-20 cents. Out of it, the Southern Ac.2-00 cents of the land was settled in favour of Makkina Papayamma under the registered settlement deed by Gadde Ramaseshanna, the land in an extent of Ac.2-00 cents on the North of the same was settled in favour of Gannamani Chandravathi under the registered settlement deed by Gadde Ramaseshanna and the remaining Ac.6- 20 cents on the North of the same belonged to Gadde Venkayamma. All these facts were admitted in the above compromise in the above suit. An extent of

Ac.3-20 cents was given with absolute rights to Gadde Venkayamma and Ac.3-00 cents was given with life estate.

12. It is submitted that even then in view of Sec.14(2) of Hindu

Succession Act of 1956, Gadde Venkayamma became absolute owner of the plaint schedule property. The legal heirs of Makkina Papayamma executed a registered

Sale deed dated 21-05-1998 in favour of the 2nd defendant conveying the

Southern Ac.2-00 cents of land in R S.No.154/1 of Pothavaram Village and the 2nd defendant took possession of the same.

13. It is submitted that Gannamani Chandravathi executed a registered settlement deed dated 30-06-2003 in favour of the 1st defendant conveying the 6

O.S.No.107/2010 CJ (SD), TPG

land in an extent of Ac 2-00 cents in R.S.No.154/1 1 of Pothavaram Village and the 1st defendant took possession of the same. Gadde Venkayamma executed a

Registered Settlement Deed dated 10-06-1997 conveying the land in an extent of

Ac.3-20 cents in R.S.No.154/1 including the right in the bore-well, Electrical

Service Connection etc., in favour of the 1st defendant and as such the 1st defendant took possession of the same. Gadde Venkayamma executed a Will

dated 14-04-1998 in a sound and disposing state e of mind bequeathing all her

properties including the plaint schedule property to the 1st defendant and she died on 19-04-1993 and the said Will is her last testament.

14. It is submitted that during the life time of Gadde Venkayamma also, the 1st defendant used to cultivate the entire land of Ac.10-20 cents as tenant.

The deceased 1st plaintiff completely neglected his mother namely Gadde

Venkayamma. The defendants and Gadde Venkayamma used to live as a family and the defendants looked after the welfare, health and maintenance of Gadde

Venkayamma and the defendants alone performed the obsequies of Gadde

Venkayamma. The plaintiff came to the burial ground to do religious ceremony to

Gadde Venkayamma on reprimand of the elders only. The deceased 1st plaintiff filed a petition vide I.A. No.495/1999 in O.S.No.117/1998 with false allegations stating that Ac.3-20 cents also was given to Gadde Venkayamma with life interest only and the said petition was dismissed on 23-11-2000 and the final decree was passed as per the terms of compromise only.

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15. It is further submitted that there is a bore-well, bore and shed on the

Northern side of entire Ac.10-20 cents in R.S No.154/1 of Pothavaram Village to which the plaint schedule property is a part. The defendants purchased 7.5 H.P.

Motor at Surya Enterprises, Jangareddigudem on 02-11-2001 and fixed the same and later the 1st defendant purchased 12.5 H.P Texmo Motor with Pump from

Surya Enterprises and the same was installed on the above bore. The defendants have been using that Motor and Pump and Electrical Service Connection and they have been raising Virgenia Tobacco in Ac.9-20 cents and Jadu Crop in Ac.1-00 cents. The defendants alone have been paying Electrical Charges to the Electrical

Service connection situated in the plaint schedule property. As the Electrical

Service Connection is in the name of Gadde Ramaseshanna, now and then the demand notice of service charges used to go to the residence of the deceased 1st plaintiff. The deceased 1st plaintiff created the false evidence of receipts and he never paid the Electrical consumption charges for the bore-well situated in the plaint schedule property. There is no land revenue to the plaint schedule property.

The defendants obtained Pattadar Pass Books for the entire Ac.10-20 cents in

R.S.No.154/1 of Pothavaram Village including the plaint schedule property. The defendants have no land at Pothavaram Village except the land in an extent

Ac.10-20 cents in R.S.No.154/1 of Pothavaram Village including the plaint schedule property.

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16. The 1st defendant executed a registered settlement deed dated 19-09-2008 in favour of the 2nd defendant for the plaint schedule property which was got by him under the Will dated 14-04-1998 executed by Gadde

Venkayamma. The deceased 1st plaintiff has no right or possession over the plaint schedule property. The deceased 1st plaintiff filed suit in O.S.No.481/2008 on the file of the Principal Junior Civil Judge, Tadepalligudem for permanent injunction with false allegations and obtained ex-parte injunction order. The defendants 1 and 2 herein filed their written statement in that suit stating the above facts.

The deceased 1st plaintiff did not file any application under order 23 of C.PC to withdraw the suit. The plaintiff filed only a Memo to dismiss the suit without costs.

So, the Junior Civil Judge, Tadepalligudem dismissed the suit with costs on 18-03- 2010. So, the Judgement dated 18-03-2010 in O.S.No.481/2008 on the file of the

Junior Civil Judge, Tadepalligudem becomes final and conclusive and as such the suit is barred by the doctrine of resjudicata under sec.11 of CPC. This suit is also barred under order II rule 2 of C.PC. The defendants have been in possession and enjoyment of the plaint schedule property even prior to the death of Gadde

Venkayamma and thereafter till today and prayed to dismiss the suit.

17. The 1st defendant filed additional written statement stating that the plaint schedule property is an extent of Ac.3-00 cents and the prevailing lease is

Rs.75,000/- per annum is not correct. The plaintiff ought to have claimed the relief of mesne profits at the time of filing the suit only and the prevailing lease is only 9

O.S.No.107/2010 CJ (SD), TPG

Rs.10,000/- per acre and the plaintiffs are not entitled for recovery of past profits for the years 2011-12, 2012-13 and 2013-14 with interest and prayed to dismiss the suit.

18. The 2nd defendant filed memo adopting the additional written statement filed by the 1st defendant.

19. Basing on the above pleadings of the Plaintiffs as well as the

Defendants, the following issues are settled for trial by my predecessor:

1. Whether the plaintiff is entitled to declare that the plaintiff is

the absolute owner of the plaint schedule property?

2. Whether the plaint schedule property bequest on 1st defendant under a Will dated 14-04-1998 executed by Smt. Gadde Venkayamma and 1st defendant is in possession and enjoyment of the same?

3. Whether plaintiff is entitled for possession of plaint schedule property by evicting the defendants 1 and 2 by Court through process of law?

4. To what relief?

20. In support of the case of the plaintiff, the 5th plaintiff is examined as

PW1 and got marked Exs.A1 to A10. On behalf of the defendants, the 1st defendant is examined as DW1, got examined DWs.2 and 3 and got marked

Exs.B1 to B14.

21. Heard both sides. I have given my earnest consideration to the respective submissions of counsel for the plaintiffs as well as defendants. Perused the written arguments submitted on behalf of the defendants.

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O.S.No.107/2010 CJ (SD), TPG

22. I S S U E Nos.1 to 3:

Whether the plaintiff is entitled to declare that the plaintiff is the absolute owner of the plaint schedule property?

Whether the plaint schedule property bequest on 1st defendant under a Will dated 14-04-1998 executed by Smt. Gadde Venkayamma and 1st defendant is in possession and enjoyment of the same?

Whether plaintiff is entitled for possession of plaint schedule property by evicting the defendants 1 and 2 by Court through process of law?

This is a peculiar suit, as such, all the issues are answered once without going into the merits and demerits of the evidence, documents and other aspects since the parties to the proceedings and plaint schedule properties are one and the same in this suit and in the former suit O.S.No.117/1988 except legal representatives in place of the dead persons.

23. This suit is filed basing on compromise decree before the Lok Adalat.

The cause of action for the suit goes to show that the plaintiff filed suit

O.S.No.117/1988 for partition of the plaint schedule properties and subsequently

on 15-03-1997 the parties to the former suit appeared before the Lok Adalat and submitted Ex.A1 herein i.e. terms of compromise in respect of the plaint schedule properties. Then, the Lok Adalat, Tadepalligudem passed Compromise Decree by dismissing the suit against the 5th defendant in O.S.No.117/1988. It is the story of the deceased 1st plaintiff that basing on the compromise decree which was entered into between the parties before the Lok Adalat and allotted respective 11

O.S.No.107/2010 CJ (SD), TPG

shares to the parties and on 19-04-1998 when the mother of the deceased 1st plaintiff died intestate and immediately after the death of mother of the deceased 1st plaintiff, the deceased 1st plaintiff took possession of the property and cultivated the same till 17-02-2009 and on 18-02-2009 when the defendants 1 and 2 forcibly occupied the plaint schedule property and they are proclaiming in the village that they will alienate the property.

24. The suit was taken on file basing on the pleadings. Written statement and additional written statement also filed by the defendants. During pendency of suit, the 1st plaintiff died and the plaintiffs 2 to 5 were added as his legal representatives.

25. This suit is filed for declaration and the Court framed issues and recorded evidence and received documents at various stages after commencement of trial. When the matter is posted for judgment, surprisingly, Ex.A1 certified copy of compromise filed by the deceased 1st plaintiff under Order XXIII Rule 3 CPC in

O.S.No.117/1988 was filed.

26. Upon careful scrutiny of the said document, it is only a petition filed under Order XXIII Rule 3 and Section 151 CPC, wherein, the deceased 1st plaintiff who is also plaintiff in O.S.No.117/1988 and one Gadde Venkayamma from whom the deceased 1st plaintiff is claiming right, title and interest is 4th defendant therein. It is only a proposal made before the Court. Whether decree was passed with the conditions mentioned therein under Ex.A1 by the then Subordinate 12

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Judge, Tadepalligudem not came to the light by filing copy of compromise decree

or copy of the same to substantiate that the said compromise acted upon.

27. However, this Court after taking due care by exercising powers vested under judicial notice under Indian Evidence Act, addressed a letter to the

Honourable Principal District Judge, West Godavari, Eluru calling for the record

O.S.No.117/1988 to avoid miscarriage of justice.

28. Now, on careful reading of the entire docket orders in

O.S.No.117/1988, after the date of decree i.e. 15-03-1997, a petition in

I.A.No.495/1999 was filed for amendment of the compromise terms and the then

Subordinate Judge dismissed the said petition stating that award of Lok Adalat cannot be changed. So, the Award passed by the Lok Adalat, Tadepalligudem became finality of the lis i.e. partition in O.S.No.117/1988.

29. After passing the decree, the then Subordinate Judge directed the parties to file Non-Judicial Stamps for engrossing final decree in terms of compromise. But, the Court contradicting itself, in spite of collecting Non-Judicial

Stamps which is a ministerial work, inadvertently, dismissed the suit on 23-04-2002. By virtue of Lok Adalat Award, O.S.No.117/1988 became final for partition in respect of the plaint schedule properties. No Court has got any right to lay its hands after the matter became final, particularly, in this particular case, after passing award by the Lok Adalat which is a decree in its nature and no appeal is preferred against the said Award.

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30. So, it is clear from the docket orders in O.S.No.117/1988, award is final but for the reasons best known to the deceased 1st plaintiff, again he filed this suit and now he is seeking declaration for part of the property partitioned as the Testator executed a Will even prior to the decree.

31. Even otherwise considered, whether the Testator Venkayamma executed the Will or not is material since the Award passed by the Lok Adalat is final so far as the property of the share of Venkayamma holds good and by the date of Award, she is very much alive. So, if this Court considers that the suit is dismissed by the Subordinate Judge, again parties to the present suit have to agitate by way third round of litigation.

32. At this Stage, this Court relied on the judgment of the Honourable

Supreme Court in the case of 1 between Kale & Others vs Deputy Director Of

Consolidation and Others, wherein, Their Lordships categorically held that - " Generally condition for the validity of family arrangements, it is not necessarily so. Even bona fide dispute present or possible, which may not involve legal claims would be sufficient. Members of a joint Hindu family may to maintain peace or to bring about harmony in the family, enter into such a family arrangement. If such an agreement is entered into bona fide and the terms thereto are fair in the circumstances of a particular case, the courts would more readily give assent to such an agreement than to avoid it." "Thus it would appear from a review of the decisions analysed above that the Courts have taken a very liberal and broad view of the validity of the 1AIR 1976 Page No.807 14

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family settlement and have always tried to uphold it and maintain it. The central idea in the approach made by the Courts is that if by consent of parties a matter has been settled, it should not be allowed to be re-opened by the parties to the agreement on frivolous or untenable grounds"

33. So, it is clear from the above judgment of the Honourable Apex Court that where a family settlement though it is not registered, the Courts have to assent them without disturbing the same. The intention of the Honourable Apex

Court is that once a settled matter shall not be unsettled for want of legalities.

The core intention of the Honourable Apex Court is that the harmony of the family arrangement shall not be disturbed.

34. Here in the present case on hand also, the arrangement among the family members i.e. plaintiffs and the defendants arrived at a compromise and the

Subordinate Court of Tadepalligudem assented it and call it a day by passing Lok

Adalat Award and later it is disagreed to change it by assenting it as final.

35. However, subsequently on 23-04-2002, the Subordinate Court,

Tadepalligudem passed an erroneous order by dismissing the suit

O.S.No.117/1988 without having any jurisdiction. The cause of action for the suit

was already settled in O.S.No.117/1988 by passing Lok Adalat Award and the award is acted upon by way of finality i.e. putting the parties in their respective shares, until then the properties are said to be status of jointness and to be considered as rights of the parties. Otherwise, as stated supra, the third round of litigation commences by reopening the succession. But, this Court is of the opinion 15

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that the orders of dismissal is written by the Court is of no value since collection of

Non-Judicial stamps is ministerial duty. Until and unless the final decree is passed by the Court, the preliminary decree holds good. Limitation for execution of any final decree, as per the Limitation Act is 12 years under Article 136.

36. Therefore, it is clear from the above discussion, there is no need to answered issue Nos.1 to 5 with the help of the available evidence on record. The compromise arrived at between the parties holds good until it is set aside by the competent authority i.e. by the Honourable High Court or the Honourable

Supreme Court. The order of dismissal itself is lack of jurisdiction. After passing of Lok Adalat Award, the Subordinate Court has no jurisdiction to lay its hand to pass any orders. The orders passed without jurisdiction can be rectified in the subsequent suit since the orders of the Court is only irregular but not illegal. The irregular orders can be set right by way of orders of Court since the Court ought not have passed such orders which causes prejudice to the parties to the suit. It is the duty of the Court to set right such orders in subsequent proceedings in the interest of justice and to see that justice shall not be miscarried.

37. As such, the parties are at liberty to implement the Lok Adalat Award passed on 15-03-1997. The period of pendentilite recons in this suit from the date of passing the erroneous order to the date of disposal of this suit i.e. from 23-04- 2002 to 03-04-2024 except any period that was abandoned by the plaintiffs in not bringing the suit i.e. after passing award, a petition vide I.A.No.495/1999 was filed 16

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and the same was disposed of on 23-11-2000 and the said period shall also be reckoned as pendentilite.

38. So, it is clear basing on the ratio laid down in the judgment of Kale and others Vs. Deputy Director of Consolidation and others, the harmony of the family arrangement shall not be disturbed when the matter is already settled among the family members and the Court can give assent to the family arrangement. Therefore, the Lok Adalat Award passed in O.S.No.117/1988 is final and the parties to the proceedings can proceed further according to law.

39. Therefore, it is clear from the above discussion that the parties are at liberty to seek final decree basing on the compromise but not by way of suit for declaration. As such, this Court could not find any merits in the suit and the same is liable to be dismissed. Accordingly, these issues are answered.

40. I S S U E No.6: To what relief?

In the result, suit is dismissed without costs.

Typed to my dictation to the Stenographer Grade-I on computer, corrected, signed on the draft judgment and pronounced by me in open Court this the 3rd day of April, 2024 and digitally signed.

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APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFFS FOR DEFENDANTS

PW1 Gadde Uma Mahesh DW1 Gannamani Venkata Subba Rao

DW2 Kanuri Janardhana Rao

DW3 Alluri Bhagavan Narayana

DOCUMENTS MARKED

For Plaintiffs:

Ex.A1Certified copy of compromise petition filed by late Gadde - Chittibabu under Order XXIII Rule 3 CPC in O.S.No.117/1988 on the file of Senior Civil Judge's Court, Tadepalligudem.

Ex.A2 15-03-1997 Certified copy of Award passed by the Lot Adalat.

Ex.A3 17-07-2007 Certified copy of land revenue receipt.

Ex.A4 28-02-1993 Certified copy of land revenue receipt.

Ex.A5 20-06-2008 Certified copy of Electricity Bill.

Ex.A6 24-10-2008 Certified copy of Police Report.

Ex.A7 26-10-2008 Certified copy of receipt issued by the Station House Officer, Ananthapalli.

Ex.A8 - Certified copy of proceedings of the Tahsildar, Nallajarla.

Ex.A9 25-10-2008 No.3 Adangal.

Ex.A10 - Certified copy of complaint filed before the Additional Judicial

Magistrate of I Class, Tadepalligudem.

For Defendants:

Ex.B110-08-1988Registration extract of settlement deed executed in favour of Gadde Venkayamma by Gadde Ramaseshanna.

Ex.B2 21-05-1998 Sale deed executed by Makkina Venkateswara Rao and others in favour of the 2nd defendant.

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Ex.B3 10-06-1997 Served copy of settlement deed executed in favour of 1st defendant by Gadde Venkayamma.

Ex.B4 30-06-2003 Settlement deed executed in favour of 1st defendant by his mother Chandravathi.

Ex.B5 14-04-1998 Will executed by Gadde Venkayamma in favour of 1st defendant.

Ex.B6 - Crop Season Tobacco Board Registration.

Ex.B7 02-11-2001 Bill issued by Surya Enterprises, Jangareddigudem along with guarantee card.

Ex.B8 13-02-2003 Bill issued by Surya Enterprises, Jangareddigudem.

Ex.B9 07-07-1995 Termination of agreement notice issued by the AP State Electricity Board to Seshanna along with information of waiver of surcharge.

Ex.B10 26-06-2008 Payment receipt for additional load in the name of Gadde Rama Seshanna.

Ex.B11 - Bunch of Electrical Receipts of electricity charges.

Ex.B12 18-03-2010 Certified copy of judgment in O.S.No.481/2008.

Ex.B13 01-11-2007 Authorisation letter issued in the name of the 1st defendant along with acknowledgment cum delivery.

Ex.B14 27-07-2004 Sale notes (four in number) in the name of Gannamani Subba Rao.

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O.S.No.107/2018 CJ (SD), TPG

IN THE COURT OF CIVIL JUDGE (SENIOR DIVISION) :: TADEPALLIGUDEM

P P r r e e s s e e n n t t : : S S r r i i K K . . P P r r a a k k a a s s h h B B a a b b u u C C i i v v i i l l J J u u d d e e ( ( S S e e n n i i o o r r D D i i v v i i s s i i o o n n ) )

Thursday, the 4 th day of April, 2024

O.S.No.107/2018

(Received as per the orders of the Honourable District Court, West

Godavari, Eluru vide Tr.O.P.No.1076/2017 to try along with

O.S.No.357/2014 and renumbered as O.S.No.107/2018)

Between:-

Kolli Ramalingeswara Rao, S/o. Kota Satyanarayana, male, aged 50 years, Vanastalipuram, Hyderabad, Telangana State.

... Plaintiff

And

Pasarla Ramadevi, W/o. late Vara Prasad, female, aged 34 years, housewife, r/o. D.No.11-28-5/8, Narasimharao Peta, Tadepalligudem, W.G.Dt.

... Defendant

This suit is coming on 01-04-2024 before me for final hearing in the presence of Sri Ch.U. Bhaskar, Counsel for Plaintiff and of

Sri T.V. Satyanarayana, Counsel for the defendant and having stood over for consideration, till this day, this Court delivered the following:

J U D G M E N T

This suit is filed by the plaintiff for delivery of vacant possession of the plaint schedule property after evicting the defendant and for costs of the suit.

2. Brief averments in the plaint are -

The Plaintiff is absolute owner of the plaint schedule property by virtue of registered sale deed dated 09-01-2015 purchased from Tangella

Srinivasu for a valuable consideration. Originally, after successive transfers, the 1

O.S.No.107/2018 CJ (SD), TPG

plaint schedule property was purchased by one Pasarla Nageswara Rao under registered sale deed dated 21-06-2006. After retaining the property for some time, the said Nageswara Rao sold away the same to Tangella Srinivasu under registered sale deed dated 23-12-2014 for a valuable consideration and from the said Srinivasu, the plaintiff purchased the entire property along with existing two portioned Bangalore tiled house with electricity and water assessment etc.

3. It is further submitted that the vendor of the property handed over the same with vacant possession. Then, the plaintiff altered the plaint schedule property suitable for residential purpose. After that number of tenants approached the plaintiff seeking the plaint schedule premises on monthly tenancy and the property situated in a prime, commercial locality. The plaintiff tried to let out the plaint schedule property on rent to his friends and relatives since he is far away from the plaint schedule property due to his employment.

4. It is further submitted that the plaintiff had no regular contacts with his father in law except courtesy talk. But at the instance of his wife, the plaintiff decided to purchase the property for settlement at Tadepalligudem. The defendant who is no other than daughter in law of father in law of the plaintiff, approached the plaintiff and requested to let out the plaint schedule property for her residence and Beauty Parlour business. At no point of time, the plaintiff had much more contacts with the defendant. In view of long distance of the plaintiff, the plaintiff fell in trap with the passive words of the defendant. The defendant agreed to pay monthly rent of Rs.4,000/- per month to both portions and also agreed to keep the plaint schedule property neat. She also agreed that rent has to 2

O.S.No.107/2018 CJ (SD), TPG

be payable on 1st week of next succeeding month and if the defendant failed to pay rent continuously for successive two months, the defendant has to vacate the plaint schedule property with good, perfect condition to the plaintiff.

5. It is further submitted that it is also agreed by the defendant that she is liable to account for the damage if any caused to the existing structure and also agreed that she will not let out the plaint schedule property to outsiders by way of sub-letting. In view of the family relation, the plaintiff did not insist for any lease deed and let out the plaint schedule property to the defendant.

6. It is submitted that the defendant paid rent for a period of three successive months up to April 2015 and obtained rent receipts but subsequently she committed default in payment of rent. The plaintiff demanded the defendant to vacate the plaint schedule property by paying rent for the remaining three months i.e. till July 2015 but the defendant gave evasive replies and postponed to vacate the plaint schedule property. The defendant is making hectic efforts to book the plaintiff in unnecessary criminal cases so as to avoid monthly rents.

7. It is further submitted that in case the defendant vacated the plaint schedule property after few months, the plaintiff may not be in a position to obtain possession with good condition and the same may become further financial burden to the plaintiff. The defendant committed the acts of waste and the neighbours also informed that the defendant is guilty of creating nuisance in the neighbourhood. The defendant proclaimed that she can create false title and retain in the plaint schedule property and trying to sub-let the plaint schedule property so as to create unnecessary troubles to the plaintiff. Hence, the suit.

3

O.S.No.107/2018 CJ (SD), TPG

8. The defendant filed written statement denying the material allegations in the plaint and submitted that part of the schedule property an extent of 147.3 sq. yards and RCC building therein situated in Siddapuram village is ancestral property of Pasarla Ramanna who is father of Pasarla Nageswara

Rao. After death of Ramanna, the above property devolved on Pasarla Nageswara

Rao.

9. It is further submitted that another extent of 220 Square Yards and two portioned Bangalore tiled house situated in Tadepalligudem, which is the plaint schedule property, was purchased by father in law of this Defendant under registered sale deed dated 21-06-2006 with the sale consideration of ancestral property. Thus, the schedule property total extent of Ac.147.3 and 220 Square

Yards are ancestral properties of husband of the Defendant and the said Pasarala

Nageswara Rao and husband of this defendant are in joint and constructive possession and enjoyment of the entire extent of Ac.147.3 and 220 sq.yds

10. It is further submitted that While so enjoying joint with Pasarla Nageswara

Rao, his Son Vara Prasad died intestate on 22-03-2011 leaving behind him his wife; i.e.

the Defendant herein and his Sons Pasarla Naga Venkata Dheeraj and Pasarla Suraj.

After the death of Pasarla Vara Prasad, this Defendant and her two Sons and Pasarala

Nageswara Rao are in joint and constructive possession of the property of Ac.147.3 and 220 sq.yds.

11. It is submitted that the Defendant and her sons have half share in the property of Ac. 147.3 and 220 sq.yds and Pasarla Nageswara Rao has no exclusive right over the property of Ac. 147.3 and 220 Sq. Yards and he has no right to execute any sale 4

O.S.No.107/2018 CJ (SD), TPG

deed in favour of Tangella Srinivasu or any other person and the alleged sale deed dated 23-12-2014 is void and not binding on the Defendant and her Sons.

12. It is further submitted that Tangella Srinivasu has no valid title over the plaint schedule property to execute sale deed dated 09-01-2015 in favour of the plaintiff and the plaintiff cannot acquire any title over the plaint schedule property basing on void document dated 09-01-2015. As Pasarla Nageswara Rao is acting against interest of the

Defendant and her Sons, they got filed suit vide OS 357/2014 against the said Pasarla

Nageswara Rao on the file of Senior Civil Judge's Court, Tadepalligudem for partition and it is pending. The said Nageswara Rao also sold an extent of 147.3 sq.yds situated in

Siddapuram village to one Shiek Peer Basha on 07-08 2014 for part of the joint property in which this Defendant and her Sons have got share. This Defendant and her Sons sought the relief to cancel the alleged sale deed dated 07-08-2014 executed by Pasarla

Nageswara Rao in the suit O.S.No.357/2014 filed by this Defendant and her Sons. The alleged sale deeds dated 23-12-2014 and 09-01-2015 are liable for cancellation.

13. It is submitted Pasarla Nageswara Rao had no exclusive right over the schedule property to execute any sale deed and the Plaintiff has no right, title over the plaint schedule property, as such the leasing of schedule property to Defendant does not arise. This Defendant and her Sons have half share in the plaint schedule property and there is no landlord and tenant relationship between the plaintiff and defendant and the defendant never took the plaint schedule property on rent and the plaintiff has no right to seek for the relief to vacate the plaint schedule property.

14. It is further submitted that after filing O.S.No.357/2014, Pasarla Nageswara

Rao colluded with the plaintiff and got filed this false suit with a; view to defraud the rights of this defendant and her sons din the plaint schedule property. This defendant 5

O.S.No.107/2018 CJ (SD), TPG

and her sons are living in the schedule property as of their own right of share holders of ancestral property and prayed to dismiss the suit.

16. Basing on the pleadings of both parties, the following issues were framed for trial by my predecessor:

1. Whether the plaintiff is entitled for eviction of the defendant and thereon vacant possession of the plaint schedule property as prayed for?

2. To what relief the plaintiff is entitled for?

17. To substantiate the case of plaintiff, the plaintiff himself examined as

PW1, got examined PW2 and got marked Exs.A-1 to A-7. On behalf of the defendant, the defendant herself examined as DW1, got examined DWs2 and 3 and got marked Exs.B1 to B6.

18. Heard both sides. I have given my earnest consideration to the submissions made by the plaintiffs as well as the defendants. Perused the written arguments

19. I S S U E No.1:

Whether the plaintiff is entitled for eviction of the defendant and thereon vacant possession of the plaint schedule property as prayed for?

It is the case of the plaintiff that the plaint schedule property purchased by him under sale deed dated 09-01-2015 from one Tangella Srinivasu.

In support of his contention, he filed Ex.A1 registered sale deed executed in his favour by Tangella Srinivasu and also got filed three house tax receipts paid by the plaintiff for the years 2015-16, 2017-18 and 2018-19.

20. During the cross examination, PW1 categorically deposed that he is 6

O.S.No.107/2018 CJ (SD), TPG

presently residing at Vanasthalipuram and he is resident of Hyderabad and he is doing business and his permanent residence is Goteru near Tanuku. The defendant is not his relative but he immediately admitted that husband of 1st defendant is his brother in law. Nageswara Rao and Somamma are his father in law and mother in law. The husband of the defendant died in the year 2009 or 2010. He has no knowledge about the partition suit filed by the defendant and he did not receive any notice. He further admitted that on 23-12-2014, Tangellla

Srinivasu purchased the property from his father in law and from 16th day of purchase of Tangella Srinivasu, he purchased the plaint schedule property. He categorically deposed that he purchased the property from Srinivasu and the scribe of the sale deeds purchased by him and his vendor are one and the same.

He did not pass any receipt for payment of rent and he does not know any agreement is obtained from the defendant or not. He further deposed that he did not give any no objection for establishment of Beauty Parlour in the plaint schedule property by the defendant.

21. So, it is clear from the evidence of PW1 that he purchased the property from Tangella Srinivasu. He did not give any notice to the defendant prior to filing of the suit for eviction under Section 106 of Transfer of Property Act.

In the absence of issuance of any notice, the owner is not entitled to seek for eviction of the tenant i.e. defendant. Moreover, the defendant is tenant of his vendor’s vendor Nageswara Rao and she has been in possession and enjoyment of the said property for more than 17 years and thereby she perfected her title against the true owner, as such, she cannot be dispossessed from the plaint 7

O.S.No.107/2018 CJ (SD), TPG

schedule property. Viewed from other angle, the plaint schedule property belongs to Pasarla Nageswara Rao, who is father in law of the defendant, who got issued legal notice to the defendant in the year 2013. Subsequently, he sold the property to the vendor of the plaintiff in collusive nature. As the defendant got perfected her title prior and after death of husband of defendant Vara Prasad over the plaint schedule property, a suit for eviction is not maintainable and the suit for recovery of possession ought to have been filed. With these observations, the issue is answered accordingly.

22. I S S U E No.2:

In the result, this suit is dismissed without costs.

Typed to my dictation to the Stenographer Gr.I, on computer, corrected, signed and pronounced by me in open Court this the 4th day of April, 2024.

SD/- K. PRAKASH BABU

CIVIL JUDGE (SENIOR DIVISION),

TADEPALLIGUDEM

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFFS FOR DEFENDANTS

PW1 Kolli Ramalingeswara Rao DW1 Pasarla Ramadevi

PW2 K.V. Ranga Rao DW2 Reddy Srinivasa Rao

DW3 Reddy Anjibabu

DOCUMENTS MARKED

For Plaintiff:

Ex.A109-01-2015Registration extract of sale deed executed in favour of the plaintiff by Tangella Srinivasu.

Ex.A223-12-2014Registration extract of sale deed in favour of Tangella 8

O.S.No.107/2018 CJ (SD), TPG

Srinivasu executed by Pasarla Nageswara Rao.

Ex.A321-06-2006Registration extract of registered sale deed executed in favor of Pasarla Nageswara Rao by Chelluri Chanti @ Mutyalamma and another.

Ex.A426-05-2005Proceedings of the Municipal Commissioner, Tadepalligudem along with requisition.

Ex.A519-11-2015House tax receipt for the year 2015-16.

Ex.A601-08-2017House tax receipt for the year 2017-18.

Ex.A717-12-2018House tax receipt for the year 2018-19.

FOR DEFENDANTS:-

Ex.B1-Certified copy of plaint in O.S.No.357/2014.

Ex.B2-Certified copy of written statement in O.S.No.357/2014.

Ex.B3-Certified copy of adoption memo filed by the defendants in

O.S.No.357/2014.

Ex.B4-Electricity bills (Two in number) in the name of the defendant.

Ex.B515-02-2020Notorised copy of Rice Card issued by the Revenue Authorities, Tadepalligudem in favour of the defendant.

Ex.B6-Voter ID card of the defendant.

ILD/-KPB

CJ (SD),

TPG 9

O.S.No.44/2021 SCJ, TPG

FAC/PSCJ, KVR

IN THE COURT OF SENIOR CIVIL JUDGE: TADEPALLIGUDEM

FAC/PRINICIPAL SENIOR CIVIL JUDGE: KOVVUR

Present:- Sri K. Prakash Babu,

Senior Civil Judge

Wednesday, the 1st day of November, 2023

O.S.No.44/2021

Between:

Ayinavalli Venkateswara Rao S/o. Satyanarayana, Hindu, Male, 51 years, Advocate, Attili Mandal, Cell No.9395375484. TJCJC. ...Plaintif

And:

1. Arigela Satyanarayana S/o Late Venkatarao, Hindu, Male, 49 years, cultivation, Gowripatnam, Devarapalli Mandal, PJCJ.

2. Gudepu Nagalakshmi W/o Venkateswara Rao, Hindu, Female, House wife, 50 years, D.No.5-117/2, Samshabad, Rangareddy District.

3. Lingisetti Sitha Maha Lakshmi W/o Srinivasa Rao, Hindu, Female, House wife, 44 years, D.No.5-249/3, Bank colony, Medchal, K.V.Rangareddy District -501401 Cell No.9573935667

...Defendants.

This suit is coming on 20.10.2023 before me for final hearing in the presence of Sri O.N.Krishna, Advocate for plaintif and Defendant No.1 has remained exparte and Sri.G.Surya Chandra Rao Advocate for the

Defendant No.2 and Defendant No.3 and this suit having stood over for consideration till this day, this Court made the following:

J U D G M E N T

This suit is filed seeking to direct the defendants to execute a registered sale deed in terms of the agreement of sale dt.27.06.2019 in respect of the plaint schedule property and costs thereon.

2. The plaintif averred that the defendants are close relatives, who are related to the plaintif through his wife A. Srivani. He averred that the one Late A. Venkatarao is the father of defendants 1 to 3 and husband of

Late Arigela Lalamani. He further averred that the said A. Venkatarao has got Ac.1.16 cents of land situated in R.S.No.43/2 of Gowripatnam Village by

O.S.No.44/2021 SCJ, TPG

FAC/PSCJ, KVR

Registered Sale deed 1954/1997 at office of S.R.O. Kovvur and later the said

A. Venkatarao died on 10.10.2017 and after the death the property devolved upon the defendants. when the 1st defendant intended to sell the schedule property and remaining defendants 2 and 3 and late Arigela

Lalamani informed over phone to the plaintif that they have no objection for the sale of the property and also promised that they will come forward for getting the family members certificate and in view of the relationship the plaintif believed the words and entered into agreement with the defendants.

Thereafter, the sale price was fixed at Rs.20,00,000/- (Rs. Twenty

Lakhs only) and the same agreed to purchased by the plaintif. On 27.06.2019 the plaintif has paid a major amount of Rs.15,00,000/- as an advance amount out of the sale consideration to the 1st defendant and on behalf of all defendants along with Arigela Lalamani and thereby the regular sale deed is to be executed within one year from the date of the sale agreement that is from 27.06.2019 to 27.06.2020 and the remaining sale consideration of Rs.5,00,000/- shall be paid within one year. The plaintif further averred that the original title deed having document No.1954/1997, which is standing in the name of A. Venkatarao, is handed over by the 1st defendant. Later, the plaintif is always ready and willing to perform his part of the contract, but the defendants have failed to come forward for execution and also not produced family members’ certificate. Subsequently, due to Covid-19 lock down the time went on and the plaintif waited patiently and vexed with the attitude of the defendants. Later, the plaintif issued a legal notice on 08.10.2020 to the defendants for demanding to execute a registered sale deed in favour of the plaintif after receiving the balance of sale consideration. Lastly, he averred that inspite of such legal notice, the defendants did not execute any sale deed. Hence, he filed this suit seeking the relief of Specific Performance of agreement of sale deed 27.06.2019 or alternatively he sought for refund of Rs. 15,00,000/- with interest @ 24% from the date of payment till realization with a charge against the Plaint Schedule Property.

3. As seen from the record, the plaintif herein filed this suit against

Defendants 1 to 3 and the 1st defendant remained ex-parte. As seen from the record, the 2nd and 3rd defendants made appearance and he filed written

O.S.No.44/2021 SCJ, TPG

FAC/PSCJ, KVR statement denying the genuineness of the agreement of sale dt.27.06.2019.

4. Thereafter, the 2nd and 3rd defendants filed written statement submitted that after the death of their father, the defendants and their mother are in the possession and enjoyment of the plaint schedule property and also came to dispose the plaint schedule property so as per the understanding in between them, the 1st defendant approached the wife of the plaintif and expressed his intention to sell the property and the plaintif accepted the proposal. They further submitted that the agreement was done by the 1st defendant on behalf of the defendants 2 and 3 and their mother with the plaintif for considering the sale amount of Rs.20,00,000/- and the plaintif paid an amount of Rs.15,00,000/- as an advance out of the sale consideration to the 1st defendant and on behalf of the defendants 2 and 3 and also Arigela Lalamani. After that the 1st defendant postponed to execute a regular sale deed after receiving balance of sale consideration, but the defendants 2 and 3 are ready to perform their part of the contract and also during the life time of their mother. While matter stood the mother of the defendants Arigela Lalamani died on 30.05.2021 and then due to

Covid and other unavoidable circumstances the defendants could not execute the document, but they are ready to perform their part of the contract.

5. No oral or documentary evidence is adduced on either side.

6. Heard both sides.

7. Now the point for consideration is:

Whether the petitioner is entitled to the relief as prayed for?

8. P O I N T : Order XV Rule 1 denotes, when the Parties are not yet issued whether at the first hearing of a Suit, it appears that parties are not yet issued on any question of law or of fact, the Court may at once pronounce Judgment.

O.S.No.44/2021 SCJ, TPG

FAC/PSCJ, KVR

9.As seen from the written statement of the defendants 2 and 3, at

Para 5 it is mentioned that even today the defendants are ready and willing to perform their part of the contract.

10.Hence as seen from the plaint and written statement, the parties are not yet issued on any question of law or of fact. Therefore, this Court is inclined to pronounce Judgment at once under Order XV Rule 1 of C.P.C.

11. In the result, the suit is decreed but with costs under Order XV

Rule 1 of C.P.C for specific performance of agreement of Sale Deed dated on 27.06.2019. The Plaintif shall deposit the balance of sale consideration

Rs.5,00,000/- and the defendants shall execute a regular registered sale deed in favour of the Plaintif within one month from date of receipt of balance sale consideration, failing which, the plaintif is at liberty to proceed under due process of law.

Dictated to the Stenographer Grade-III, typed by him on laptop,

corrected and pronounced by me in the open Court that this 1st day of November, 2023.

SD/- K. PRAKASH BABU

Senior Civil Judge, Tadepalligudem.

FAC/Principal Senior Civil Judge,

Kovvur.

Appendix of Evidence

(No oral or documentary evidence is adduced on either side)

ILD/-KPB.

SCJ, TPG.

FAC/PSCJ, KVR.