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IN THE COURT OF THE SENIOR CIVIL JUDGE:: AT TANUKU.
PRESENT: SRI L.VENKATESWARA RAO,
SENIOR CIVIL JUDGE,
Monday, this the 16th day of March, 2020
ORIGINAL SUIT NO.57/2009
BETWEEN:
Gottumukkala Santha Narasimha Kumari @ Swetha. …..Plaintiff.
And
1.Kalidindi Venkata Krishna Satyanarayana Raju. 2.Pakalapati Butchi Venkatapathi Raju.
(2nd defendant add as I.A.270/2018 dt.2.4.2019) .....Defendants.
This suit coming on 28-02-2020 for hearing before me in the presence of Miss D.Radha, Advocate for the plaintiff and Sri I.Kishore, Advocate for Defendant No.1, Sri R.Raja Kiran, Advocate for the defendant No.2 and having stood over for consideration till this day, this court has delivered the following:-
J U D G M E N T
The suit is filed for partition of plaint ‘A’ and ‘B’ schedule properties into two equal shares and allot one such share to the plaintiff , grant profits on her share, costs of the suit and such other reliefs.
2. The case of the plaintiff in brief;
The plaintiff is the only daughter to the 1st defendant. The 1st defendant is having four brothers and one sister, and his parents are alive. There was a partition among the 1st defendant, his brothers and father and in the said partition the plaint schedule properties fell to the share of the 1st defendant. Due to matrimonial disputes the 1st defendant has been living separately from his wife i.e., the mother of the plaintiff.
plaintiff is a married women having a daughter and she is living with her mother along with her daughter in the tiled house since long time attending to its repairs etc.,
The mother of the plaintiff got issued a legal notice to the 1st defendant on 2.2.2009 when he sold away granaries for which the 1st defendant gave a reply notice on 6.2.2009 with false and frivolous 2 allegations. In the reply notice the 1st defendant pleaded that he got the house property and other properties from his maternal grand mother as such it is his self acquired property etc.,
Plaint ‘A’ schedule property is a fertile land capable of yielding two crops in an year and commercial crops like sugarcane, plantain etc., can also be raised in the said property. The 1st defendant has no necessity to borrow any amount and he has no debts and 1st defendant has been realizing the entire income from ‘A’ schedule property.
Plaint ‘B’ schedule property is a house site situated at Relangi, 1st defendant has been residing in one portion and leased out the other portion.
Since those two properties are their ancestral properties the plaintiff is entitled to a share in the said property, hence, the suit.
Subsequently plaint got amended and it is alleged the 2nd defendant appears to have filed O.S.135/2009 and got the plaint schedule property auctioned in Court. The said suit is filed by the 2nd defendant only after filing of the suit and therefore, the 2nd defendant can not bring the plaint schedule property for sale and the sale is not valid and binding on the plaintiff.
3. The defendants 1 and 2 filed separate written statements denying the material averments of the plaint.
The case of the 1st defendant in brief;
The plaintiff is not the daughter of the 1st defendant , and she is not born to him, as such she is not entitled to seek relief of partition of plaint schedule properties. The 1st defendant is not aware of the birth of the plaintiff. And he is also not aware the plaintiff was married to one
Srinivasa Naveen Kumar who died later etc.,
Item No.1 of plaint ‘A’ schedule property is the self acquired property of the 1st defendant which he purchased and 1st defendant got item No.2 of plaint ‘A’ schedule property through the partition and out of Ac.0-67 cents 3 1st defendant gave Ac.0-03 cents of land to his form servant by way of gift who constructed a house in the said site and at present the extent of item
No.2 is only Ac.0-64 cents. Item No.3 of plaint ‘A’ schedule property fell to the share of Chalapathi Raju in the partition and item No.4 of plaint ‘A’ schedule property fell to the share of Narayana Raju and those two properties belonging to them and plaintiff is nothing to do with those properties.
It is alleged in the partition he got only Ac.0-64 cents of land in item No.2 of plaint ‘A’ schedule property and in total he is in possession of Ac.1-19 cents i.e., item No.1 and 2 of plaint ‘A’ schedule property and he pleaded that in the reply notice given by him to the mother of the plaintiff due to type mistake the word ‘NOT’ not typed in line 2 and plaintiff can not take advantage of the same and infact he alleged '' the plaintiff is not born to him.''
The wife of the 1st defendant neglected him and went to her mother’s house and started living there separately long back and inspite of his best efforts she did not join him due to which 1st defendant became ashamed in the public and fell sick. The mother of the 1st defendant used to look after him. He mentally depressed and did not go out into the public, due to the attitude of his wife and infact during his wedlock one female child was born to them, but the said female child was died two or three days after her birth, thereafter 1st defendant and his wife did not live together. And 1st defendant strongly believes the plaintiff is not born to him. 1st defendant due to sickness could not do any work and he spend huge amounts for his illness for the last 25 years and he is having debts of Rs.15,00,000/. the property possessed by the 1st defendant is hardly sufficient to discharge those debts, accordingly he prays to dismiss the suit with costs.
4. In additional written statement the 1st defendant pleaded plaint ‘B’ schedule property is their ancestral property in which his brothers and 4 father are having rights and the said property was not correctly shown and he also alleges that he is suffering with diseases like pyleria , diabetes and heart problem etc., and he is now aged about 65 years and living at the mercy of his parents.
It is alleged for his ailments he borrowed amounts from the 2nd defendant and when he could not repay the same the 2nd defendant filed
O.S.135/2009 against him for recovery of money and got his properties sold
in a Court auction being the highest bidder and the 2nd defendant is a bonafide purchaser of the property and the said property is not liable for partition. And it is also pleaded though plaintiff filed an application for
D.N.A test and it was allowed but for the reasons best known plaintiff did not choose to proceed for D.N.A test and this itself shows plaintiff is not born to him.
5. The 2nd defendant filed written statement contending that he is a senor citizen and he lent amount to the 1st defendant and when he failed to repay the same , he filed O.s.165/2005 against him for recovery of money and obtained decree later he got filed E.P for sale of the properties of the 1st defendant and purchased the property being highest bidder in
Court auction, thus, he is a bonafide purchaser of the plaint schedule property for valuable consideration and for the fault of the parties he can not deprived of his money.
And he further pleads if the court does not accept that he is a bonafide purchaser it can direct the parties to pay the amount due to him with interest. Accordingly he prays to dismiss the suit with costs.
6. Originally the suit is filed against the 1st defendant in respect of plaint ‘A’ schedule landed property for partition. Subsequently plaint ‘B’ schedule item No.1 and 2 house properties and sites are added and also 2nd defendant was added and the plaInt is amended accordingly.
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7. On perusal of the pleadings of both sides, the following issues have been settled for determination; (1) Whether the plaintiff is not the daughter of the defendant as contended by the defendant? (2) Whether item No.1 of the plaint schedule property is the self acquired property of the defendant as contended by him? (3) Whether item No.2 of the plaint schedule property is comprising of only Ac.0-64 cents ?
(4) Whether item Nos.3 and 4 of the pliant schedule
properties are not the properties of the defendant?
(5) Whether plaintiff is entitled to preliminary decree for
partition of the pliant schedule property into two equal
shares and for allotment of one such share as prayed
for?
(6) Whether plaintiff is entitled for future profits?
(7) To what relief?
After amendment and impleading of 2nd defendant the following additional issue is framed.
1. Whether 2 nd defendant is a bonafide purchaser of Plaint Schedule
Property and those properties are not liable for partition?
8. During the course of trial, on behalf of the plaintiff, plaintiff
Gottumukkala Santha Lakshmi Narasimha Kumari is examined as P.W.1, she examined her aunt ( mother’s sister) i.e., P.W.2 Manthena Sita Devi, got marked Ex.A.1 to Ex.A.25.
On behalf of the defendants, defendants 1 and 2 are examined as D.W.1 and D.W.2 respectively, got marked Ex.B.1 Certified Copy of
E.P.24/2010 and order thereon.
9. The witnesses deposed evidence by way of chief affidavits, and they are in the lines of respective pleadings.
10. Heard arguments of both sides.
The learned counsel for the plaintiff during the course of arguments fairly conceded the case of the plaintiff in respect of item No.3 and item No 4 of plaint ‘A’ schedule property and item No.1 of Plaint ‘B’ schedule property and restricted the claim of the plaintiff for partition in 6 respect of item No.1 and 2 and plaint ‘A’ schedule and item No.2 of plaint ‘B’ schedule and filed a memo to that effect after giving notice to other side, this court recorded the said memo. In the light of above issue No.4 can be dispensed and struck off.
11. ISSUES NO.1 :- (1) Whether the plaintiff is not the daughter of the defendant as contended by the defendant?
The case of the plaintiff is that she is the daughter of the 1st defendant and born to the 1st defendant on 4.7.1980 at Relangi Village. She filed Ex.A.8 copy of birth certificate issued by Registrar Births Gram
Panchayat, Relangi dt.1.12.2015 to show that she is daughter of 1st defendant. 1st defendant did not deny his marriage with the mother of the plaintiff and during his evidence as D.W.1 he admitted that his marriage with the mother of the plaintiff is still subsisting.
9. The learned counsel for the 1st defendant during the cross examination of P.W.1 tried to suggest in Ex.A.8 birth certificate the father of the plaintiff was mentioned as Krishanam Raju , and thereby contend said krishnam raju is father of plaintiff but not 1st defendant, for which
P.W.1 categorically stated the 1st defendant is also called as Krishnam
Raju. D.W.1 also in the cross examination admitted that he is also called as
Krishnam Raju. And therefore, the contention of the learned counsel for the 1st defendant as per Ex.A.8 birth certificate 1st defendant is not the father of plaintiff can not be accepted.
Plaintiff besides Ex A8 also got field Ex.A.9 original household card issued by M.R.O in the name of the 1st defendant dt.10.6.1992 and Ex.A.10 pass book issued by Andhra bank, Relangi in favour of the plaintiff issued in the year 1998, and those two documents are much prior to the suit and they reflect the name of the 1st defendant as the father of the plaintiff.
Besides those documents plaintiff also got marked Ex.A.14 to Ex.A.16 7 photographs through D.W.1 in the cross examination, while confronting those photos to him which were taken at the half saree function of plaintiff.
D.w.1 admitted Ex.A.14 photo contains the photographs of his mother and father and the girl in Ex.A.14 photo is the plaintiff herein. And he also identified his mother and plaintiff herein in Ex.A.15 photo and the mother of the plaintiff, his brother’s wife and plaintiff herein in Ex.A.16 photo. He admitted in their community they perform half saree function for the girls attained puberty and further admitted those photos are taken during the half saree function of the plaintiff. Though he denied his photograph by the side of the mother of the plaintiff in Ex.A.14 photo saying the photo is fabricated and the girl is not born to him, he failed to explain how his family members were all present along with the plaintiff in her half saree function, normally when 1st defendant alleges such serious disputes with mother of plaintiff, who left him one year after marriage and blessed plaintiff through somebody his family members would not take lead in performing half saree function to plaintiff, and this is a strong circumstance to doubt the case of 1st defendant.
12. The contention of the 1st defendant is only one year he lived with the mother of the plaintiff and during that time a daughter was born to him, who died immediately after her birth, and thereafter himself and the mother of the plaintiff did not live together and he has been living separately ever since. D.W.1 is aged 70 years by now and according to them the marriage between the mother of the plaintiff and 1st defendant was performed about 41 years ago. The contention of the 1st defendant that they lived together for only and for the last 35 or 40 years they are living separately is proved to be false on the face of Ex.A.14. To A. 16 photos and
Ex.A.8 to Ex.A.11, documents, apart from this D.W.2 Pakalapati Butchi
Venkatapathi Raju the own brother-in-law of 1st defendant in his evidence 8 categorically stated that 1st defendant and his wife and daughter are living separately since 20 years.
D.W.2 is examined on 27.11.2019 he is a retired electrical engineer, Simhachalam , Visakhapatnam and qualified person aged 72 years, if the evidence of D.W.2 is taken into consideration it has to be concluded the 1st defendant and his wife are living separately only from the year 1999 or so but not from 35 years to 40 years as contended by the 1st defendant.
13. Sec .112 of Indian Evidence Act, provides for conclusive proof of lagitimacy and it says that,
if any child was born during the continuance of a valid
marriage between his mother and any man, or within 280 days
after its dissolution, the mother remaining unmarried, it shall be
conclusive proof that he is the legitimate son of that man, unless it
can be shown that the parties to the marriage had no access to
each other at any time when he or she could have been begotten.
Since valid marital relationship between 1 st defendant and
mother of plaintiff is still subsisting, under this section it shall be the
conclusive proof to held plaintiff is the legitimate daughter of 1 st
defendant, unless 1 st defendant failed to prove non access between
them at time during conceiving of plaintiff
This section is based on presumption of public morality and public policy. presumption of conclusive proof of legitimacy attached to a child born to the couple during subsistence of a valid marriage under this section and proving non access between the parties when the disputed child is begotten is the only option available for that man to dispel the said presumption and proof of non access must be clear and satisfactory. Law is well settled that the DNA test to establish paternity of a child is permissible only when strong prima facie case has been made out by the man disputing paternity, interestingly in the case 1st defendant has not moved the application for DNA test and it is the plaintiff who moved such application, though she could not prosecute petition later for want of money.
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14. The Hon’ble Apex Court and several Hon’ble High Courts has explained the meaning of non access as'' the opportunities for having sexual intercourse between the spouses during the period of conceiving of the child.''
In the case on hand, it is an admitted fact that plaintiff and her mother are residing in item No.2 of plaint ‘B’ schedule house situated in the same village Relangi where the 1st defendant is residing along with one of his brother and mother ( D.W.1 evidence in cross). And therefore, there is every possibility for the 1st defendant to have access with the mother of the plaintiff all through much less during conceiving of plaintiff. Though he admitted that he is having five brothers and one sister and mother and they can depose evidence on his behalf and he is having several family members residing in the same village, for the reasons best known, he failed to examine any of them to prove non access. In the light of above facts and circumstance this court has no hesitation to conclude the 1st defendant failed to prove non access to rebut presumption under section 112 of The Evidence Act.
The learned counsel for the 1st defendant would submit the plaintiff filed a petition for D.N.A examination and though this court was pleased to allow the application, for the reasons best known plaintiff did not pursue the application and did not take steps, as a result the said application was dismissed, hence, adverse inference can be drawn against the plaintiff. When The learned counsel suggested the same to P.W.1 in the cross examination she stated that she thought of spending Rs.2,000/- or Rs.3,000/- for the DNA test but later she came to know the test would cost about Rs.25,000/- and unable to bear the said amount she could not prosecute the application, but not otherwise, this explanation prima facie falsifies the contention of 1st defendant that she did not offer any explanation as to why she did not prosecute DNA application. On the other 10 hand, 1st defendant evidently did not dispute the poor financial back ground of the plaintiff and her in capacity to pay the said amount. It is not the case of the 1st defendant that plaintiff or her mother are having any independent source of income or properties. The evidence of P.W.1 go to show that she is a widow and she is living along with her mother and her evidence further go to show her mother unable to maintain herself filed
O.S.125/2009 for maintenance against 1st defendant and obtained decree ,
this shows the poor financial back ground of plaintiff in paying money for
D.N.A examination. Infact when plaintiff was able to establish that she was conceived during substance of a valid marriage between her mother and 1st defendant and they both lived considerable time together as can be seen from the photos even by the time of her half saree function, the presumption of legitimacy under section 112 of The Evidence Act comes in to operation and she is not required to prove the paternity by asking for
D.N.A examination and it is for the 1st defendant to prove non access during the period which 1st defendant miserbly failed by adducing any evidence or by eliciting any worthful admissions from P.W.1 and P.W.2, as such the non prosecuting of D.N.A application by the plaintiff can not be ground to reject her case to draw any adverse inference against her, hence, this argument of the learned counsel for the 1st defendant is not accepted.
15. P.W.2 is the aunt of P.W.1 i.e., mother’s sister and she denied the mother of the plaintiff and defendant separated about 40 years ago and she stated since 20 to 25 years only they are living separately. Her evidence is in corroboration with the evidence of D.W.2 who also stated 1st defendant and mother of the plaintiff are living separately since 20 years. Since P.W.1 is aged about 35 years by now and born in the year 1980 and as can be seen from Ex.A.14 to Ex.A.16 photos her half saree function was also celebrated among the family members of the 1st defendant it can be concluded without hesitation the plaintiff is legitimate daughter 11 of the 1st defendant born through his wife Boodevi. Hence this issue is answered accordingly against the 1st defendant.
16. ISSUE NO.2:- (2) Whether item No.1 of the plaint schedule property is the self acquired property of the defendant as contended by him?
Item No.1 of plaint ‘A’ schedule is Ac.1-26 cents of landed property situated in R.S.No.594/2 at Relangi Village. The contention of the plaintiff is it is their ancestral property, where as 1st defendant contends that it is his self acquired property. However D.W.1 did not file any document to establish that he purchased this property. Plaintiff got filed
Ex.A.5 registration extract of Adangal obtained through Mee-seva, which shows item No.1 of the property stands in the name of 1st defendant
Though Ex.A.5 is wrongfully referred that it relates to item No.3 of ‘A’ schedule.
On perusal of Ex.A.5 this court noticed that it relates to Item
No.1 and stands in the name of the 1st defendant. D.W.1 in the cross examination categorically admitted that he got Ac.1-90 cents of land towards his share consisting two items i.e., Ac.1-26 cents ( item No.1 of ‘A’ schedule) and Ac.0-64 cents item No.2 of ‘A’ schedule and he stated that he is in possession of the said property till the land was sold in Court auction to the 2nd defendant about 5 or 6 years back. The genuineness of the said
Court sale is the subject matter of other issue to be discussed at a later point of time. But for the present since 1st defendant failed to place any record to show that he purchased item No.1 of the schedule property nor adduced any evidence to substantiate it , it has to be concluded by virtue of
Ex.A.5 Adangal, A21 to A 24 Tax receipts coupled with the evidence of
D.W.1 who stated that they partitioned their joint family properties about 10 years back and house sites about 7 or 8 years back, that this property is the ancestral property of the 1st defendant but not his self acquired property.
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17. ISSUE NO.3:-
3) Whether item No.2 of the plaint schedule property is comprising of only Ac.0-64 cents ?
According to the plaintiff item No2 of plaint A schedule is Ac.0-67 cents of land in R.S.No.569/1. The 1st defendant is disputing the extent and contends that out of Ac.0-67 cents he settled Ac.0-04 cents to his farm servant who constructed a house in it and therefore, the actual extent of item No.2 at present is only Ac.0-64 cents but not Ac.0-67 cents.
D.W.1 in his written statement pleading and evidence categorically stated that extent and he further admitted his defence in the present suit, and in
O.S.125/2009 filed by the mother of the plaintiff against him for
maintenance and right of residence in item No.2 of plaint ‘B’ schedule property is same. Plaintiff got filed Ex.A.11 Certified Copy of Judgment in
O.S.125/2009 filed by her mother against 1st defendant. In Ex.A.11 also
the 1st defendant categorically stated item No.2 of plaint ‘A’ schedule is
Ac.0-64 cents but not Ac.0-67 cents and in the said suit he got filed some document and the learned court believed the version of the 1st defendant and concluded the extent of item No.2 of plaint ‘A’ schedule is Ac.0-64 cents . the said finding was not challenged and disputed by the 1st defendant or her mother. In the present suit also when D.W.2 categorically stated the extent of item No.2 of the plaint ‘A’ schedule is Ac.0-64 cents, there was no denial by the plaintiff about this extent. In view of the same it can be concluded item No.2 of plaint ‘A’ schedule is only Ac.0-64 cents.
Hence, the issue is answered accordingly in favour of the 1st defendant.
18. ADDITIONAL ISSUE:-
Whether 2 nd defendant is a bonafide purchaser of Plaint
Schedule Property and those properties are not liable for
partition?
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The contention of the 1st defendant is as the mother of the plaintiff discarded him, he became ashamed in public and fell sick and mentally depressed and according to him due to his sickness he could not do any work and spent huge amounts towards his hospital charges for the last 25 years and incurred the debts to a tune of Rs.15,00,000/- and to discharge those debts he borrowed amount from others.
His contention is he borrowed amount from his brother-in-law i.e., 2nd defendant Pakalapati Butchi Venkatapathi Raju, who filed
O.S.135/2009 against him and obtained decree and later he filed
E.P.24/2010 for realization of decree amount and got attached item No.1
and 2 of plaint ‘A’ schedule property and purchased the said property in
Court auction. Thus 1st defendant contends item No.1 and 2 of plaint ‘A’ schedule property was sold to the 2nd defendant in court auction and 2nd defendant is in possession of those properties and he is not having any properties for partition.
D.W.2 in his evidence supported the testimony of D.W.1 and stated that he advanced money to the 1st defendant under a pronote and when 1st defendant failed to pay the same he filed O.S.135/2009 against the 1st defendant and obtained decree later he filed E.P.24/2010 for sale of item
No.1 and 2 of plaint ‘A’ schedule property for realization of his decree amount and purchased the said property in court auction, thus, 2nd defendant claims that he is a bonafide purchaser of item No.1 and 2 of plaint ‘A’ schedule property for valuable consideration in Court auction.
The learned counsel for the plaintiff strongly disputed this contention of the both defendants and submitted that since the defendants 1 and 2 are brother-in-laws ,they hatched up a plan and only to avoid the legitimate share of the plaintiff in the plaint schedule property they brought into existence a fabricated pronote and got filed O.S.135/2009 collusively and 14 as such the decree in O.S.135/2009 and the court sale in E.P.24/2010 are not binding on the plaintiff.
19. P.W.1 in the evidence categorically stated the transaction in
O.S.135/2009 between defendants 1 and 2 is a fake transaction. Plaintiff
got filed Ex.A.25 Certified Copy of suit register in O.S.135/2009. As per
Ex.A.25 the 2nd defendant filed the suit against the 1st defendant for recovery of money under two pronotes, one for Rs.4,00,000/- dt.9.7.2007 and another for Rs.2,00,000/- dt.29.1.2008 total Rs.6,00,000/- and he filed the suit on 9.7.2009 and obtained decree on 3.12.2009 i.e., within three months from the date of filing of the suit. As per Ex.B.1 Certified copy of
E.P.24/2010 and order thereon filed by the 2nd defendant, it is an exparte
decree. Evidently even before this suit the mother of the plaintiff filed
O.S.135/2009 for maintenance claiming the charges over the plaint A and
B schedule properties against the 1st defendant and as can be seen from
Ex.A.11 Certified Copy of Judgment in O.S.125/2009 she filed the said suit on 25.2.2009 and plaintiff filed the present suit before this Court on 22.2.2009. Thus, both these two suits i.e., O.S.57/2009 and
O.S.125/2009 are filed almost 5 months prior to the filing of the
O.S.135/2009 by the 2nd defendant against the plaintiff. Therefore if we see
the probabilities since in O.S.125/2009 the mother of the plaintiff sought for charge of the plaint schedule properties and plaintiff herein asked for partition of plaint schedule properties , to avoid the legitimate share of the plaintiffs, the 1st defendant in collusive with his own brother-in-law i.e., 2nd defendant brought into existence O.S.135/2009 on 9.7.2009 can not be ruled out.
20. The learned counsel for the 1st defendant would argue that the suit pronotes in O.S.135/2009 are of the year 2007 and 2008 i.e., prior to the suits of plaintiff and her mother, and therefore, the genuineness of those two pronotes cannot be doubted. this Court with due respect did 15 not appreciate the version of the 1st defendant for the reason since the pronotes are not a registerable documents and the existence of those debts are not even spoken by the 1st defendant in Ex.A.2 reply notice issued by him for the first time dt.6.2.2009 for Ex.A.1 notice issued by the plaintiff and also in his earlier written statement pleadings, considering the above facts as contended by learned counsel for plaintiff any amount of foul play by defendant can be doubted, and therefore this court not inclined to place any reliance on those debts especially in view of the close relationship between the defendants and proceedings allowed to be completed within no time by 1st defendant remained exparte.
Apart from this, during cross examination of DW1 and DW2, this
Court noticed several material inconsistencies to suspect the genuineness of the debt of the 2nd defendant for the reason, according to the 1st defendant, because of attitude of the mother of the plaintiff he became mentally depressed and fell sickness and he spent huge amounts towards hospital charges and for discharge of those debts he borrowed amounts to a tune of Rs.15,00,000/-. As against this in his evidence he stated that he borrowed Rs.6,00,000/- from his brother-in-law i.e., D.W.2 and except this debt he did not borrow any amount from others. This evidence of D.W.1 falsifies his own version that he incurred debts of Rs.15,00,000/- from several persons, and according to him he borrowed only Rs.6,00,000/- from the 2nd defendant and none else.
21. Contrary to his evidence D.W.2 in the cross examination stated
as 1st defendant became insolvent while conducting chits he lent money to
him. Thus, there is clear inconsistency in the evidence of D.W.1 and
D.W.2 about the purpose for which the 1st defendant borrowed money from him. Evidently 1st defendant has not filed any medical record to show that he was suffering with any ill health or spent any money for his illness.
The evidence of D.W.2 go to show that he is a retired electrical engineer in 16
Ship Yard at Visakhapatnam and he is resident of Simhachalam in
Visakhapatnam. He is the own brother-in-law of 1st defendant. And his evidence is as 1st defendant could not attend court in Visakhapatnam he filed the suit i..e, O.S.135/2009 before Tanuku Court, where 1st defendant residing this itself go to show his close acquaintance and love and affection towards 1st defendant. Moreover according to him he lent money of Rs 5,00,000 during 2002 or 2003 and he again says he lent
Rs.7,00,000/- to him. Both are in correct factually Thus, he is not sure what was the amount he advanced to the 1st defendant and though he stated initially he did not obtain any pronote from D.1 and subsequently he obtained pronote from D.1, he is not in a position to state the date and year when he obtained those two pronotes. And according to him he purchased the property in court auction for Rs.10,00,000/- and he got obtained delivery of the property in an understanding with D.1 but not through the court. Where as D.W.1 stated that D.W.2 purchased the property for Rs.8,56,000/- and court delivered the land to the 2nd defendant and this is yet another piece of evidence to disbelieve the evidence of D.W.2.
Though D.W.2 stated to have purchased the property in the year 2010 itself and has been enjoying the property through one Kapagani Venkateswara
Rao a cultivating tenant who is paying maktha of 12 paddy bags per acre.
He is not in a position to say the survey number of land and its extent. He failed to examine the said Kapagani Venkateswara Rao to prove the enjoyment as owner of the property.
According to him he is paying land revenue to the government in the name of the D.1. this court unable to comprehend why 2nd defendant being highly qualified person having purchased the property in the year 2010 itself and claims to have been enjoying the property paying land revenue in the name of 1st defendant, this is another circumstance to disbelieve the story of defendants. Plaintiffs got filed Ex.A.21 to Ex.A.24 17 extracts of tax receipts obtained through Me-seva which shows the 1st defendant is paying land revenue to the schedule property. According to
D.W.1 he is now residing in the house of his 2nd younger brother along with his mother. Though the name of the 2nd younger brother of the 1st defendant, was not elicited D.W.2 in the cross examination stated that one
Badri is the younger brother of the 1st defendant and his son married the daughter of Badri , from these admissions , this Court understands that there is a close relationship and understanding between D.W.1 and D.W.2 and since the existence of the debts of 2nd defendant are not referred or shown in Ex.A.2 reply notice of the 1st defendant and also in the written statement of the 1st defendant and as the said suit i.e., O.S.135/2009 was filed almost 5 months after filing of the suit in O.S.125/2009 filed by the mother of the plaintiff and as 2nd defendant stated to have obtained exparte decree within no time in O.S.135/2009 and as he failed to produce any evidence to show that he has been enjoying the said property after his purchase in the year 2010 and as there are categorical inconsistencies in the evidence of D.W.1 and D.W.2 in respect of the amount borrowed and the purpose for which the property was sold , this court considering the circumstances of the case, doubts the genuineness of debt of 2nd defendant, and it has no hesitation to conclude O.S.135/2009 was brought into existence by the 1st defendant only to avoid the legitimate share of the plaintiff in the plaint schedule properties.
In view of the same the decree in O.s.135/2009 and the subsequent sale of item No1 and.2 of plaint ‘A’ schedule in E.P.24/2014 filed by the 2nd defendant will not come in the way to deny the legitimate share of the plaintiff in the plaint schedule property. Hence, the 2nd defendant can not be considered as a bonafide purchaser of the plaint schedule property and as such the sale is not binding on the plaintiff. Accordingly the additional issue is answered against the defendants and in favour of the plaintiff.
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23. ISSUE NO.5 AND 6:- (5) Whether plaintiff is entitled to preliminary decree for
partition of the pliant schedule property into two equal
shares and for allotment of one such share as prayed
for?
(6) Whether plaintiff is entitled for future profits?
This Court while answering the issue No.1 to 3 and additional issue held the plaintiff is legitimate daughter of the 1st defendant and item No.1 and 2 of the plaint schedule properties are the ancestral properties of the plaintiff and 1st defendant. D.W.1 also in the cross examination admitted that he got item No.1 and 2 of plaint ‘A’ schedule property in the partition with his brothers about 10 years back and item No.2 of plaint ‘B’ schedule house and site in the partition among them about 8 years back vide
Ex.A.13 partition deed dt.8.7.2015 . A perusal of Ex.A.13 partition deed dt.8.7.2015 go to show item No.2 of plaint ‘B’ schedule property fell to the share of 1st defendant in the partition with his brothers. D.W.1 in the cross examination categorically admitted the mother of plaintiff is residing in that house and he is residing in the house of his 2nd brother along with his mother, and thus, as per the own version of D.W.1 item No. 1 and 2 of plaint'' A'' schedule properties and item No.2 of plaint ‘B’ schedule property is their ancestral property.
Since 1st defendant categorically denying the paternity of the plaintiff and denying the rights of the plaintiff in his properties and made deliberate attempt to screen away the properties by bringing
O.S.135/2009 through his brother-in-law i.e., the 2nd defendant, this Court
can understand the conduct of 1st defendant in giving share or account for the profits to the plaintiff, and as such plaintiff is entitled to get separated from him and ask for partition of the above properties into two equal share and she is entitled to one such share from the 1st defendant together with profits as prayed for. The issue is answered accordingly infavour of plaintiff and against defendants.
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24. ISSUE NO.7:- (7) To what relief?
In the result, the suit is decreed with costs.
A preliminary decree of partition is passed as follows:- (1)Partitioning item No.1 and 2 of plaint ‘A’ schedule property and item No.2 of plaint ‘B; schedule property into two equal shares and allot half share to the plaintiff and half share to the 1st defendant.
(2)Three months time is granted for the 1st defendant to come forward for partition and allot the half share and deliver her half share to the plaintiff, failing which the plaintiff is entitled to apply for final decree for half share in accordance with law.
(3) The mesne profits shall be determined on a separate application being filed by the plaintiffs in final decree proceedings.
Dictated to the Stenographer, transcribed by her, corrected and
pronounced by me in open court, this the 16 th day of March, 2020.
SENIOR CIVIL JUDGE,
TANUKU.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PLAINTIFF:- P.W.1: Gottumukkala Santha Lakshmi Narasimha Kumari. P.W.2: Manthena Sita Devi.
FOR DEFENDANTS:- D.W.1: Kalidindi Venkata Krishna Satyanarayana Raju. D.W.2: Pakalapati Butchi Venkatapathi Raju.
DOCUMENTS MARKED
FOR PLAINTIFF:- Ex.A.1- is the Office copy of the Registered notice dated 2.2.2009 Ex.A.2- is the Reply notice dt.6.2.2009 Ex.A.3- is the Adangal obtained in Mee-Seva Ex.A.4- is the Adangal obtained in Mee-Seva Ex.A.5- is the Adangal obtained in Mee-Seva Ex.A.6- is the Adangal obtained in Mee-Seva Ex.A.7- is the Adangal obtained in Mee-Seva Ex.A.8- is the birth certificate issued by Register of births and death Gram Panchayat, Relangi. Ex.A.9- is the Original Household Card.
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Ex.A10- is the Andhra Bank Pass book of P.W.1. Ex.A11- is the Certified Copy of Judgment in O.S.125/2009 Ex.A12- is the Certified Copy of Sale deed dt.19.12.1975. Ex.A13- is the Public abstract of registered partition deed dt.8.7.2015. Ex.A14- is the photo Ex.A15- is the photo Ex.A16- is the photo Ex.A17- is the Office copy of letter dt.11.6.2018 Ex.A18- is the Postal Acknowledgment Ex.A19- is the Postal Acknowledgment Ex.A20- is the Endorsement dt.12.7.2008 issued by Tahsildar. Ex.A21to Ex.A.24 are the true extract of tax receipts Ex.A25- is the Certified copy of suit register in O.S.135/2009
FOR DEFENDANTS: Ex.B.1- is the Certified copy of E.P.24/2010 and Order thereon.
SENIOR CIVIL JUDGE,
TANUKU.
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PLAINT PRESENTED ON : 25-02-2009 PLAINT FILED ON :19-03-2009
IN THE COURT OF THE SENIOR CIVIL JUDGE:: AT TANUKU.
PRESENT: SRI L.VENKATESWARA RAO,
SENIOR CIVIL JUDGE,
Monday, this the 16th day of March, 2020
ORIGINAL SUIT NO.57/2009
BETWEEN:
Gottumukkala Santha Narasimha Kumari @ Swetha, W/o Late Srinivasa Navin Kumar, Hindu, Female,
28 yrs, Calling Nil, Relangi, Tanuku SCJC. …..Plaintiff.
And
1.Kalidindi Venkata Krishna Satyanarayana Raju, S/o Suryanarayana Raju, Hindu, Male, 60 yrs, Cultivation, Relangi, Tanuku SCJC. 2.Pakalapati Butchi Venkatapathi Raju, S/o Late Sita Rama Raju, Hindu, Male, 70 yrs, Retired Employee, Simhachalam, Visakhapatnam, VKSP District Courts.
(2nd defendant add as I.A.270/2018 dt.2.4.2019) ....Defendants.
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The suit is filed for partition of plaint ‘A’ and ‘B’ schedule properties into two equal shares and allot one such share to the plaintiff , grant profits on her share, costs of the suit and such other reliefs.
CAUSE OF ACTION: The cause of action for the suit arose in January 2009 when the defendant is acting against the interests of the plaintiff, in February, 2009 when plaintiff demanded for her share and at Relangi where the schedule property is situated within the jurisdiction of this Hon”ble Court.
VALUE OF THE SUIT:
Relief of partition of plaint ‘A’ schedule property into two equal shares and for separate possession of one such share would be ¾ market value of plaintiff’s share valued at Rs.2,05,000/- per acre. Value of ‘A’ schedule would be Rs.5,12,500/- half thereof would be Rs.2,56,250/- and 3/4th thereof would be Rs.1,92,187-00 Relief of partition of ‘B’ schedule property into two equal shares and for separate possession of one such share would be 3/4th market value of plaintiff’s share. Value of ‘B’ schedule site …. Rs.2,50,000-00 Value of ‘B’ schedule structure …. Rs.6,55,200-00 --------------------- Rs.9,05,200-00 Value of Half share Rs.4,52,600-00
And 3/4th thereof would be … (Amended as per orders in I.A.No.199/2015 dt.16.9.15) Rs.3,39,450-00
Relief of partition of item No.(2) of ‘B’ schedule property into two equal shares and for separate possession of one such share would be 3/4th market value of plaintiff’s share. Value of item No.(2) of ‘B’ schedule site Rs.10,76,475-00 Value of half share would be Rs. 5,38,237-00 And 3/4th thereof would be …, Rs.4,03,678-00 (Amended as per orders in I.A.No.271/2018 dt.2.4.2019)
On which a Court fee of Rs.200/- is herewith paid under sec.34(2)(ii) r/w sch.1 Art.1(b) & (c) of A.C.F and S.V.Act as the plaintiff is in joint possession of the property and her right has not been denied.
This suit is coming for final disposal before me in the presence of Miss D.Radha, Advocate for the plaintiff and Sri I.Kishore, Advocate for Defendant No.1, Sri R.Raja Kiran, Advocate for the defendant No.2 and having stood over for consideration till this day, this court Doth order and Decree as follows:
1)That the suit be and the same is hereby preliminary decreed with costs.
2)That partitioning item No.1 and 2 of plaint ‘A’ schedule property and item No.2 of plaint ‘B’ schedule property into two equal shares and allot half share to the plaintiff and half share to the 1st defendant.
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3)That three months time is granted for the 1st defendant to come forward for partition and allot the half share and deliver her half share to the plaintiff failing which the plaintiff is entitled to apply for final decree for half share in accordance with law.
4)That the mesne profits shall be determined on a separate application being filed by the plaintiffs in final decree proceedings.
5)That the defendants do also pay to the plaintiff a sum of Rs.48,357/- towards the costs of the suit.
6)The defendants do bear their own costs of Rs.10,002/- ( cost taxed). ( copy of plaint schedules herewith attached) Given under my hand and the seal of the court, this the 16th day of March, 2020.
SENIOR CIVIL JUDGE,
TANUKU.
MEMORANDUM OF COSTS
FOR PLAINTIFF: FOR DEFENDANTS :
(Cost taxed) 1.Vakalat ---Rs. 2-00 1.Vakalat --Rs. 2-00 2.Plaint fee ---Rs. 200-00 2.Pleader fee—Rs.10,000-00
3. Petition stamp ---Rs. 5-00 4.Process --- Rs. 145-00
5. Pleader’s fee ---Rs. 36,000-00 6.Junior Advocate fee ---Rs. 12,000-00
------------------- --------------------------------
---Rs. 48,357-00 --Rs.10,002-00
------------------- --------------------------------
SENIOR CIVIL JUDGE,
TANUKU.