1 O.S.No.2 of 2009
IN THE COURT OF THE III ADDITIONAL DISTRICT JUDGE,
AT :: KARIMNAGAR,
PRESENT:M. Krishna Murthy, III Additional District Judge, Karimnagar.
WEDNESDAY, the 11th day of APRIL, 2018
O.S. No.2 of 2009
Between:- Bethu Rajaram, S/o.Gunusulu, Age: 80 years, Occ: Business, R/o.H.No.1-10-126, Metpelly proper.
…...Plaintiff.
And
1. Bethu Rajaiah (died on 19.08.2012).
2. Bethu Prasad, S/o.Rajaiah, Age: 40 years, Occ: Business is Defendant No.2
3. Bethu Shankar, S/o.Rajaiah, Age: 37 years, Occ: Business is Defendant NO.3. Both are Lrs. of D.1, R/o.H.No.4-2-43, Metpelly proper, (M) Mandal is the defendant No.3
4. Ryagalla Shankar, S/o.Peddaiah, Age: 62 years, Occ: Business, R/o.Near Agriculture Market Yard, Metpelly proper, (M) Metpelli.
5. Ryagalla Venkatesham, S/o.Peddaiah, Age: 56 years, Occ: Business, R/o.Metpelly proper, (M) Metpelly, now residing at Vemulawada proper, (M) Vemulawada, Dist: Karimnagar.
6. Pudari Chandra Prakash Goud, S/o.Satyanarayana Goud, Age: 35 years, Occ: Tapper,
7. Pudari Rajaram Goud, S/o.Narsimhulu, AGe: 60 years, Occ: Taper, Both are R/o.Metpelly proper (M), Metpelly is Defendant No.6 and 7.
8. Smt. Eqbal Begum, W/o.Shaik Mohiuddin, Age: 45 years, R/o.Metpelly proper (M), Metpelli.
9. Armoor @ Marri Pochaiah, S/o.Pochaiah, Age: 45 years,
10.Armoor Narsubai, W/o.Armoor Rodda Pochaiah, 2 O.S.No.2 of 2009
Age: 70 years, Occ: Household, 11.Armur Laxmibai, W/o.Anjaiah, Age: 50 years, Occ: Household,
12.Thopparapu Manjula, W/o.Naresh, Age: 33 years, Occ; Household,
13.Armoor Arun, S/o.Anjaiah, Age: 30 years, Occ: Fisherman,
14.Armoor Anil, S/o.Anjaiah, Age: 29years, Occ: Fisherman, All are R/o.Metpelly proper, (M) Metpelly are the defendant No.9 to 14.
15.Armoor Gangaram, S/o.Gangaram, Age: 65 years, Occ: Fisherman,
16.Armoor Lasmaiah, S/o.Sivaiah, Age: 65 years, Occ: Fishermaan,
17.Armoor Dubba Rajaiah, S/o.Balaiah, Age: 40 years, Occ: Fisherman,
18.Armoor Buchamma, W/o.Pochaiah, Age: 60 years, Occ: Household, All are R/o.Boiwada, Metpelly proper, (M) Metpelly are the defendant No. 15 to 18.
19.Ejjapu Raja Reddy, S/o.Rajamallu, Age: 47 years, Occ: Business, R/o.H.No.1-119,
20.Penta Limbadri, S/o.Gangaram, Age: 37 years, Occ: Business, R/o.H.No.5-99, Both are Vemulakurthi (V), Ibrahimpatnam (M) are defendant No.19 and 20.
21.Bethu Venu, S/o.Dasharatham, Age: 39 years, Occ: Private employee,
22.Bethu Shekar, S/o.Dasharatham, Age: 34 years, Occ: Business,
23.Bethu Rajasri, D/o.Dasharatham, Age: 27 years, Occ: Household,
24.Bethu Rajitha, D/o.Dasharatham, Age: 25 years, Occ: Household,
25.Bethu Jamuna, W/o.Dasharatham, Age: 57 years, Occ: Household, all are LRs of Dasharatham, R/o.H.No.4-2-43, Metpelly proper at present residing at H.No.203/1, Rajachal, Padmanagar, Bheemandi, Dist: Thane - 421 302 are the defendants No. 21 to 26.
26.Bethu Rajubai, D/o.Rajaiah, Age: 47 years, Occ: Household, 3 O.S.No.2 of 2009
27.Bethu Sulochana, D/o.Rajaiah, Age: 44 years, Occ: Household,
28.Bethu Rajeshwari, D/o.Rajaiah, Age: 42 years, Occ: Household,
29.Bethu Radha, D/o.Rajaiah, Age: 39 years, Occ: Household, All are LRs of Bethu Rajaiah, Defendant No.1, R/o.H>No.4-2-43, Backside to Head Post Office, Metpelly - 505325 are the defendants No.27 to 30.
(Defendants No.21 to 29 impleaded as per the orders in I.A. No. 1689/12, Dt. 29-4-2014)
…...Defendants.
This petition coming before me on 28.03.2018 for final hearing in the presence of Sri T.G.Prasad, Advocate for the plaintiff, and of Sri S.Kondapally, Advocate for D.2 and D.3, and of Sri K.Venkateshwar Rao, Advocate for D.4, D.19 and D.20; and of Sri M.V.Ramana Murthy, Advocate for D.6, D.7, D.10 and D.12 and of Sri Ch.Ramkishan Rao, Advocate for D.9, D.11, D.13, D.15 to D.17; and D.1, D.8, D.14 and D.18 died; and the suit is dismissed against D.28, upon perusing material papers on record, upon hearing arguments and the matter having stood over for consideration this day the Court delivered the following:-
:: J U D G M E N T ::
This is a suit for partition and declaration that the registered sale deeds dated 13.05.2005, 12.03.2009 and 12.03.2009 are null and void and not binding on the plaintiff and for costs.
2.01 The case of the plaintiff in brief is as follows:-
The plaintiff and D.1 who are brothers did business of manufacturing of cement tiles and cement rings useful for the 4 O.S.No.2 of 2009 purpose of irrigation wells and drinking wells. With their joint labour they acquired suit schedule lands 1 to 4. They jointly purchased Ac.0-18 guntas of land in Sy.No.740 with the income of said business by purchasing from its owner Ryagalla Peddaiah under a simple sale deed in 1983 for Rs.30,000/-. The name of said Peddaiah is still continuing in the pahanies. He died about 15 years back. Hence, his heirs i.e. D.4 and D.5 are made parties to this case. Out of the said Ac.0-18 guntas the plaintiff and D.1 jointly sold Ac.0-10 guntas to others and the balance Ac.0-08 guntas is the plaint schedule item No.1 which is still in joint possession and enjoyment of plaintiff and D.1. They also jointly purchased Ac.1-10 guntas in Sy.No.740/a in 1984 for Rs.20,000/- from the owners Pudari Satyanarayabna Goud and his brother
Pudari Rajaram Goud(D.7) under unregistered sale deed. The plaintiff and D.1 sold away Ac.1-1 ½ guntas from out of the said land and the remaining Ac.0-08½ guntas i.e. plaint schedule item
No.2 is still in joint possession and enjoyment. The said Pudari
Satyanarayana Goud died about 14 years back without issues and his wife also died and D.6 is his adopted son. Hence, D.6 and D.7 are made parties.
5 O.S.No.2 of 2009 2.02The Plaintiff and D.1 also purchased Ac.0-30 guntas in
Sy.No.655 from Smt. Shareefa Bee in 1986 for Rs.70,000/- and it is the suit schedule item No.3. D.8 got entered her name falsely in respect of said land in the pahanies of 1999-2000, 2000-2001, 2005-2006 and hence, she is made party. The names of D.2 and
D.3 who are sons of D.1 also appearing in column No.12 of the pahani. The plaintiff and D.1 also purchased Ac.0-05 guntas in
Sy.No.402/u, i.e., item No.4 of the suit schedule on 4.10.1987 from Armoor Rodda Pochaiah who is the owner under a registered sale deed.
2.03.Plaint schedule items 1 to 4 properties were purchased in the name of D.1 as he is eldest brother. The name of Armoor
Narsubai who is father of Rodda Pochaiah was shown in the pahani of 2000-2001 and names of D.2 and D.15 to D.18 who are unconcerned persons were nominally recorded in the pahani of 2005-2006 in collusion with Village Revenue Officer, Metpalli at the instigation of D.1. Hence, D.2, D.9 and D.15 and D.18 were shown as parties. The said Rodda Pochaiah died about 12 years back leaving behind him his wife D.10 and daughter-in-law D.11 who 6 O.S.No.2 of 2009 is wife of deceased Anjaiah who is son of said Rodda Pochaiah.
D.12 to D.14 are grand daughters and grand sons of said Rodda
Pochaiah. D.2 and D.15 to D.20 have no right, title, interest in or over the said land.
2.04The disputes arose between plaintiff and D.1 in
December 1991 about the partition of the properties which were acquired jointly with the income from the joint business of cement tiles and cement rings of plaintiff and D.1. On 1.1.1992 the first defendant executed an agreement in favour of plaintiff agreeing to partitioning the properties into two equal shares and it was executed in the presence of one Gurudu Shankar and one Andhe
Bhoomaiah and the said Shankar attested the said agreement and said Bhumaiah scribed and attested the said agreement. The plaintiff and D.1 executed the agreement dated 21.11.2002 in favour of panchas namely Gangula Bhoomaiah, Marri Narayana,
Gurudu Shankar and Guntuka Vishnu in respect of partition of suit schedule items 3 and 4 properties. The said panchas made oral family settlement which was reduced into writing on 22.11.2002 as memorandum of family settlement mentioning about the 7 O.S.No.2 of 2009 investment made by plaintiff and D.1 in respect of said land. It was scribed by Gangula Bhumaiah and signed by panchas, plaintiff and D.1.
2.05The first defendant managed Village Revenue Officer,
Metpali and got made fraudulent entries in column No.12 of the pahanies of 1989-2000, 2000-2001, 2005-2006 pertaining to pattedar in respect of item No.3 of the suit schedule in the names of D.2, D.3 and D.8 in place of Sharifa Bee who died without issues and her husband also died. Such entries were made without any order from competent authority and any registered sale deed executed by said Shareefa Bee. D.2, D.3 and D.8 have no rights over the said property.
2.06The first defendant brought into existence a nominal, sham, fictitious Registered sale deed dated 13.05.2005 bearing
No.1399 of Sub Registrar Office Metpalli in favour of his son D.2 without delivery of possession in respect of suit schedule item
No.4 and the second defendant in turn brought into existence another nominal, sham and fictitious registered sale deed bearing document No.380 of 2009 dated 12.03.2009 of Sub Registrar 8 O.S.No.2 of 2009
Office Metpalli executed by him in favour of D.19 in respect of said suit schedule item No.4 without any consideration and delivery of possession. D.2 also brought into existence of a nominal, sham and fictitious registered sale deed bearing document No.381 of 2009 dated 12.03.2009 of Sub Registrar
Office, Metpalli in favour of D.20 and executed by him without any consideration and delivery of possession in respect of suit schedule item No.4.
2.07The above said sale deeds are null and void and not binding on the plaintiff as he is not party to them. The suit schedule items 1 to 4 properties are joint properties acquired with earnings from the joint business referred to above. Hence, the suit.
3.01The defendants 1 to 3 filed a written statement admitting relationship with the plaintiff and materially contending as follows:- Age of D.1 is 80 years and age of D.3 is 29 years and not 75 and 22 years respectively as mentioned in the plaint. The first defendant is also called as Bethi Lingaiah. There is another brother to plaintiff and D.1 by name Shankar. After death of 9 O.S.No.2 of 2009 father of plaintiff and D.1 by name Gunugulu they partitioned their joint family properties and used to do their individual business. The first defendant used to carry out the business of cement works of manufacturing cement bricks and rings right from 1978 at Metpalli and Chittapur villages by duly obtaining registration certificates from Industries department in his name and in the name of his eldest son.
3.02Similarly the plaintiff used to carry out his business in preparing and selling beedies under the name and style
Bhagyalaxmi Beedies Manufacturing unit at Metpalli and he also worked as commission agent of Shivaji Beedi and presently he was doing business under the name and style of 9 No. Vani Beedi
Company at Metpalli and their youngest brother Shanker used to do kiranam business and selling Madutha Manulu Business by purchasing them from Rajamundry of East Godavari District and sell them at Metpalli. Thus after separation of the brothers used to do their independent businesses and plaintiff and D.1 never did joint business in cement works. The plaintiff and his four sons and four daughters are residing separately and all the children of plaintiff were married except the physically handicapped daughter 10 O.S.No.2 of 2009 and two wives of plaintiff also died.
3.03The first defendant purchased Ac.0-05 guntas of land in Sy.No.740 in the name of his son, i.e., D.2 and obtained validation certificate in the name of D.2. There is no area of Ac.0- 08 guntas on the spot as mentioned in item No.1. One Sairi Ram
Babu purchased plaint schedule item No.2 land from plaint schedule from original owners Pudari Satyanarayana and Raja Ram and he obtained declaratory decree in O.s. 348 of 1992 on the file of District Munsiff, Metpalli against the said original owners and his name was mutated as owner of the said land and thus, he became owner of the item No.2. Thereafter he sold the said land to D.2 under the simple sale deed and D.2 obtained validation certificate in his name. Hence, D.2 is the exclusive owner and possessor of item No.2 land.
3.04.The plaintiff got issued two legal notices dated 21.08.2007 and 30.04.2008 before filing the suit to the defendants and others from the office of one Gangula Ashok,
Abdul Hafeez, advocates of Metpalli respectively contending that 11 O.S.No.2 of 2009 the lands mentioned in the said notices including the plaint schedule lands are ancestral joint family properties belonging to him and his two brothers i.e. D.1 and the said Shankar and he got 1/3rd share. Therefore, pleadings of the plaintiff are contradictory to one and another. The defendant replied to the said legal notices specifically pleading that the plaint schedule lands are their self acquired properties. The D.8 is sole legal heir of original owner of plaint schedule item No.3 land i.e. Shareefa
Bee. Hence, the said land was mutated in the name of D.8. As a matter of fact the said Shareefa Bee sold the item No.3 land to one Angadi Buchi Gangaram and hence his name was not entered in the revenue records though he is in possession. Later the said
Buchi Gangaram sold his purchased land on 20.02.1986 to D.1 under a simple sale deed which was scribed by the plaintiff himself.
3.05On the demand of defendants 1 to 3 the said Buchi
Gangaram got executed and registered sale deeds through the sole legal heir of Shareefa Bee, i.e., D.8 in the name of D.2 and
D.3 who are sons of D.1 as per instructions at the request of D.1 and vide registered sale deed 868 of 1997 dated 12.05.1997 on 12 O.S.No.2 of 2009 the file of Sub Registrar Metpalli and it was attested by said
Angadi Buchi Gangaram, in token of sale of lands by him and accordingly names of D.2 and D.3 were mutated as owners of the said land in revenue records. Arumoolla Rodda Pochaiah was not the owner of plaint schedule item 2 land. Arumoor Narsu Bai was the original owner and he died long back leaving behind him his four sons Gangaram, Shivaiah, Balaiah and Pochaiah and they also died leaving behind sons of Gangaram, S/o.Ganga Ram, Lasmaiah
S/o.Shivaiah, Dubba Rajam S/o.Balaiah and Buchamma wife of
Pochaiah.
3.06.Accordingly the said persons succeeded to the said land and their names were mutated as owners of the said land in revenue records. Thus Armoor Gangaram, Armoor Lasmaiah and
Armur Dubba Rajam became owners of the land in Sy.No.402/E.
The total area of Sy.No.402/u is Ac.0-11 guntas at Metpalli. The above owners sold Ac.0-05 guntas from out of Ac.0-11 guntas which is item No.4 of plaint schedule to second defendant under a registered sale deed dated 13.05.2005 on the file of Sub
Registrar, Metpalli. The boundaries shown in the plaint schedule 13 O.S.No.2 of 2009 for item No.4 are wrong. The said owners sold the remaining land of Ac.0-06 guntas in favour of Sambari Prabhakar, Ex Sarpanch of
Metpalli and others.
3.07 The name of D.2 was also mutated as owner in revenue records. The second defendant also became exclusive owner and possessor of the said land. The alleged document No.115/1992 executed by D.1 alone, as a matter of fact, was signed by plaintiff also and as per its contents it is partition deed. The signature appearing on the said document is not that of D.1. D.1 never executed it. It is a fabricated document. No panchayath was held as alleged by the plaintiff. The alleged panchas are the yesmen and close associates of the plaintiff and among them the alleged
Gangula Bhumaiah who was Ex MLA and who was a cantankerous litigant, by taking advantage of his political career created so many such documents and used to extract money illegally from the affected persons. The alleged document is not a family settlement. It is virtually a deed of partition or a deed of award.
As such the said documents are created and fabricated and they have no legal sanctity in the eye of law.
14 O.S.No.2 of 2009 3.08When the plaintiff and his sons partitioned and living separately why the plaintiff waited for such long time for not partitioning plaint schedule property and why he waited till this day when the plaintiff and defendant No.1 are in the fag end of their lives. The defendants got entered their names in revenue records with valid documents. D.2 sold item No.4 of plaint schedule land to D.19 and D.20 for valid consideration for his legal necessities and executed registered sale deeds 380 and 381 of 2009 dated 12.03.2009 on the file of Sub Registrar Office,
Metpalli by delivering possession of lands covered by the said sale deeds. Thus, D.19 and D.20 are exclusive owners and possessors of said property. The plaintiff has no cause of action. The plaintiff has no right or share in the plaint schedule properties.
Hence, the suit may be dismissed with costs.
4.D.4 filed a written statement denying allegations of plaintiff and admitting the contentions in the written statement of D.1 to D.3 and materially contending as follows:- The father of
D.4 by name Ryagalla Peddaiah was owner of the land in
Sy.No.740 of Metpalli sivar and D.1 alone purchased Ac.0-05 15 O.S.No.2 of 2009 guntas of land in Sy.No.740 in the name of his son, i.e., D.2 from father of D.4 and obtained partition certificate. Since then D.2 is in peaceful possession and enjoyment over the above said land. As such D.4 and his brother have no right over the said land. Plaint schedule properties are not joint family properties of the plaintiff and D.1 to D.3 and they are not liable for partition as there was partition effected among them. Hence, the suit may be dismissed with costs.
5.D.19 and D.20 filed a memo adopting written statement of D.1 to D.3.
6.D.6 and D.7 filed a written statement denying the allegations of plaintiff and materially contending as follows:- D.6 is adopted son of brother D.7. The father of D.6 and D.7 are exclusive owners and possessors of land measuring Ac.1-10 guntas in Sy.No.741/a. The father of D.6 died on 5.6.1998 intestate leaving behind him his first wife Shyamala and second wife
Gangubai and his son Maruthi through his second wife as detailed in the Pedigree shown in the written statement. The heirs of
Pudari Satyanarayana Goud who is brother of D.6 are pattedars of 16 O.S.No.2 of 2009 the said land. Most of the land in the said survey number was alienated to others through registered sale deed by D.7 and heirs of Pudari Satyanarayana Goud. They did not sell land to plaintiff and D.1. The name of D.2 may be in the pahani. But, D.7 and heirs of Pudari Satyanarayana Goud are not in physical possession of said land. The revenue officers of Metpalli Tahsil and plaintiffs and D.1 and D.2 colluded with each other and filed a false suit.
The suit is not in limitation. The plaintiff has to pay Court fee under Section 34(1) of APCF & SV Act. Hence, the suit may be dismissed for not adding the necessary parties and not valuing the suit as per law and for not paying the Court fee as per law.
7.During pendency of the suit the first defendant died and his legal representatives were brought on record as D.21 to
D.27 and D.29 and the petition in respect of alleged legal representative of D.1 i.e. D.Rajeshwari(R.28) in I.A.1689/2012 was dismissed on 18.03.2014 for non prosecution. But, even then the plaintiff mentioned the name of D.28 in the plaint but it is not valid and the suit against D.28 stood dismissed automatically as the petition to bring on record D.28 was dismissed for non 17 O.S.No.2 of 2009 prosecution. During pendency of the case D.8 to D.14 and D.18 also died. Defendants 5, 14, 21 to 27 and 29 remained ex parte.
8.On the above pleadings my learned predecessor framed following issues for trial:-
1. Whether the plaintiff and D.1 did joint business on cement tiles and cement rings and with the income derived on the business they jointly acquired the suit properties and if so the plaintiff is entitled to ½ share in the properties?
2. Whether the registered sale deeds bearing document Nos.1399 of 2005 dated 13.05.2005, 380 of 2009 dated 12.03.2009, 381 of 2009
dated 12.03.2009 are brought into existence by
D.1 and D.2 without consideration and delivery of possession and if so they can be declared as null and void and not binding on the plaintiff?
3. Whether the suit is barred by limitation?
4. Whether there is no cause of action for this suit?
5. Whether the plaintiff is entitled for partition and separate possession of his alleged ½ share in 18 O.S.No.2 of 2009 suit properties?
6. To what relief?
9.The plaintiff got himself examined as P.W.1 and also got examined another person by name Devarashetty Gundaiah as
P.W.3 and got exhibited Exs.A.1 to A.16. The plaintiff also got filed evidence affidavit of one Thandra Narsaiah as P.W.2 but he did not turn up for cross-examination. Hence, his evidence was eschewed. The other contesting defendants did not adduce any evidence either oral or documentary.
10.01.Heard both sides and perused the record.
10.02.Learned counsel for the plaintiff submitted that from the evidence on record the plaintiff proved his case and hence, the suit may be decreed as prayed for.
10.03.Learned counsel for D.2 and D.3 filed written arguments referring to pleadings and issues and evidence on record and mainly contending that the plaintiff did not prove his case, that the suit properties are joint properties, that the memorandum of understanding or agreement between P.W.1 and 19 O.S.No.2 of 2009
D.1 is not proved, that the plaintiff failed to prove the alleged creation of documents by D.1 to D.3, that the cross-examination of P.W.1 is contradicting his own version, that the evidence of
P.W.3 is not corroborating the evidence of P.W.1 and that therefore, the suit may be dismissed with costs.
10.04.Learned counsel for other contesting defendants submitted that plaintiff did not prove his case.
11.ISSUE NO.4:-According to the contesting defendants there is no cause of action for this suit. The plaintiff in the plaint made specific allegation that the suit schedule properties are joint family properties and they purchased with the income of business jointly done by himself and his brother and they were nominally put in the name of D.1 as he was elder brother. The plaintiff made further specific allegation that as first defendant bluntly refused on 10.05.2009 for making partition and as the defendants refused for correction of wrong entries in revenue records cause of action arose for this suit. Therefore, as per the plaint allegations there is cause of action for filing this suit.
When the plaintiff approached the court with a specific allegation 20 O.S.No.2 of 2009 it cannot be said that there is no cause of action for filing the suit simply on the allegation of defendant. Whether the plaintiff proved his case or not is a different aspect. It is for the Plaintiff to prove his case by adducing relevant evidence. Therefore, the court holds that as per the allegations in the plaint the plaintiff is having cause of action to file this suit. This issue is answered accordingly.
12.ISSUES NO.1 to 3 and 5:- P.W.1, the plaintiff generally deposed in support of his case and he further deposed about
Exs.A.1 to A.16. The evidence of P.W.2 was eschewed as per docket order dated 19.07.2017 as he was not produced by the plaintiff for cross examination. P.W.3 claimed that he knows both parties as he measured some of the lands of the parties. He also supported the case of the plaintiff. Exs.A.1 to A.4, A.8 to A.13 and A.15 and A.16 are copies of pahanies for the years 2008- 2008, 1999-2000, 2000-2001, 2005-2006 and 1995-96, 1997-98, 1982-83, 1988-89 and 1998-99 and 2003-2004 respectively.
Ex.A.14 is CC of copy of mutation register of Mootapalli for the year 1998-99. Ex.A.5 to A.7 are CCs of sale deeds. In Ex.A.1 21 O.S.No.2 of 2009 names of D.2 and D.3 were shown as pattedars for suit schedule item No.3 land. The name of father of D.4 and D.5 is shown as pattedar for Ac.0-18 guntas in Sy.No.740. Name of D.2 is shown as pattedar for Ac.0-05 guntas. Name of father of D.6 is shown as pattedar for land in Sy.No.741/A and D.7 Rajaram Goud is shown as pattedar for land in Sy.No.741/A and D.2 is shown as pattedar for Ac.0-08 ½ guntas in the said survey number. But the extents of lands in favour of father of D.6 and D.7 are not mentioned in the same.
13.Ex.A.2 contains the name of D.8 Iqbal Begum as pattedar for Ac.1-08 guntas in Sy.No.655 i.e. plaint schedule item
No.3 land. Names of other persons were shown as possessors in the said survey number. The name of father of D.4 and D.5 i.e.
Peddaiah is shown as pattedar for Ac.0-18 guntas in Sy.No.740 i.e.
plaint schedule item No.1. Names of father of D.6 and others were shown as pattedars for Ac.1-10 guntas in Sy.No.740/a i.e.
plaint schedule item No.2 land. In Ex.A.3 name of D.8 was shown as pattedar for Ac.0-28 guntas. Names of D.2 and D.3 were shown as pattedars for Ac.0-30 guntas i.e. item No.3 land. In
Ex.A.4 name of D.8 is shown as pattedar for Ac.0-28 guntas and 22 O.S.No.2 of 2009 the names of D.2 and D.3 were shown as pattedars for Ac.0-15 guntas each in item No.3 land. Ex.A.5 is CC of registered sale deed said to have been executed by Armur Gangaram D.15 to D.17 and others in favour of D.2 in respect of 605 square yards in
Sy.No.402/u, i.e., plaint schedule item No.4 on 13.05.2005. Ex.A.6 is CC of registered sale deed said to have been executed by D.6 in favour of E.Raja Reddy(D.19) on 12.03.2009 in respect of 303 square yards in Sy.No.402/u i.e. part of plaint schedule item No.4.
Ex.A.7 is CC of sale deed said to have been executed by D.1 on 12.3.2009 in favour of one Penta Limbadri(D.20) in respect of 303 square yards in Sy.No.403/u, i.e., part of item No.4.
14. In Ex.A.8 the name of father of D.4 and D.5 is shown as pattedar for Ac.0-18 guntas in Sy.No.740 and name of D.1 is shown as possessor for the said land. Ex.A.9 contains the name of father of D.6 as pattedar for Ac.0-19½ guntas in Sy.No.741/a i.e.
item No.2 land. Names of Rajaram Goud and others were shown as pattedars for different extents in the said survey number.
Ex.A.9 also shows name of father of D.4 and D.5 as pattedar for
Ac.0-18 guntas in Sy.No.740 i.e. item No.1. Ex.A.11 shows the names of Chakali Pedda Gangaram and others as possessors in 23 O.S.No.2 of 2009
Sy.No.655, i.e., item No.3. Names of Pudari Rajaram and
Satyanarayana were shown as possessors for the land in
Sy.No.741/A i.e. item No.2 land. Names of father of D.4 and D.5 is shown as pattedar for land in Sy.No.740 i.e. item No.1 land. Name of D.1 is shown as possessor and name of Shareefa Bee is shown as kathadar for item No.3 land.
25.Ex.A.12 contains the name of Shareefa Bee as pattedar and names of Chakali Pedda Gangaram and Vemoori Lasmaiah as possessors of Ac.0-29 guntas each in Sy.No.655 i.e. item No.3 land and name of D.1 is shwon as possessor and name of father of D.4 and D.5 is shown as pattedar for the land in Sy.No.740 and name of Pudari Chinna Narsimlu is shown as pattedar and name of Pudari
Rajaram and Pudari Satyanarayana is shown as possessors for the lands in Sy.No.741/a. Ex.A.13 shows he name of Armuri Narsubai as pattedar and names of Pochaiah, Lasmaiah were shown as possessors for Ac.0-05 and 0-06 guntas in Sy.No.402/u i.e. item
No.4. Name of Ryagalla Peddaiah father of D.4 and D.5 is shown as kathadar for the land in sy.No.740 and names of Pudari
Satyanarayana goud and others were shwon as kathadars for the 24 O.S.No.2 of 2009 land in Sy.No.741/a i.e. item No.1 and 2 lands. Ex.A.14 shown name of Shareefa Bee as pattedar for the land in Sy.O.655 and name of
Iqbal Begum is shown as person to whose name the mautation was made for Ac.1-18 guntas in Sy.No.655 and names of D.2 and D.3 were shown as persons whose names mutation was made for Ac.0- 30 guntas in the said survey number. Ex.A.15 shows the name of father of D.4 and D.5 i.e. Peddaiah as pattedar for the lane in
Sy.No.740 I.e item No.1. Ex.A.16 shows the names of Pudari
Satyanarayana Goud and others for the land in Sy.No.741/a i.e.
item No.2.
16.P.W.1 deposed that they are three brothers i.e.
Rajaiah(D.1), himself and Shankar and that in 1983 himself and his two brothers got partitioned their properties given by their father. He next deposed that they were in possession of the instrument showing the partition of property by his father among their three brothers. According to him that he filed the said document showing partition of the property before this Court.
But no such document was got exhibited on behalf of the plaintiff and it was not brought on record. He denied that his elder 25 O.S.No.2 of 2009 brother Rajaiah(D.1) purchased Ac.0-05 guntas of land in
Sy.No.740 of Metpalli in the name of his son(D.2). He admitted that above said Ac.0-05 guntas in Sy.No.740 was mutated in the name of D.2 in the concerned revenue record. He added by questioning as to how the said land would be mutated in the name of D.2 in 1974 as D.2 was born in 1973.
17.According to him (PW.1) that in the year 2009 he raised an objection with regard to the above mutation in the name of D.2 before Mandal Revenue Officer and Mandal Revenue
Officer(for short MRO) also gave papers to him and that M.R.O.,
Metpalli did not pass any orders on his representation with regard to the mutation. He denied that he did not lodge any representation to MRO with regard to mutation of D.2. He denied that he did not purchase any property from Ryagalla Peddaiah along with his brother together in Sy.No.740 of Metpalli. He also denied that they would not have any right, title or interest over
Sy.No.740 of Metpalli as D.2 is owner of the same. He denied that the said Ac.0-56 guntas in Sy.No.740 is still in possession of
D.2. According to him about two or three months back only D.2 raised tin shed in Sy.No.741 and not in Sy.No.740. He denied 26 O.S.No.2 of 2009 suggestion that about 20 years back only D.2 raised a tin shed in
Sy.No.740 and started doing business of fire wood.
18.In cross examination on behalf of D.1 to D.3 P.W.1 deposed that they are five children to their parents, i.e.
Rajaiah(D.1), himself, Shankar are the sons and Laxmibai and deceased Kalavathi are his sisters. According to him that his deceased sister Kalavathi did not have any legal heirs. According to him that he filed documents to show that himself and his elder brother Rajaiah together did joint business but no such document was got marked as exhibit. He deposed that there exists an agreement between himself and Rajaiah with regard to their business and according to him he filed it before the Court. He next deposed that he did not file any document to show that himself and D.2 together did business under the name and style of such business. He clearly admitted that he did not file any accounts statement with regard to the above said business. He further deposed that he did not inform to the Court about the year of starting of their business and the year of its closure. He deposed that they did not file any document before the Court 27 O.S.No.2 of 2009 about their secured income from out of the business. He next deposed that he filed the document before the Court to show that himself and D.1 jointly purchased the suit property. But as per evidence on record there is no such document brought on record.
19.P.W.1 next deposed that he did not file any document
before the Court to show that there was an agreement between
himself and D.1 under which he deposited his share of amount like wise D.1 deposited his share of amount and from out of the secured amount only they jointly purchased the suit property. He deposed that though himself and D.2 alienated some part of the suit survey number property connected suit property and though there were witnesses evidencing such alienation he did not incorporate in his pleadings about the particulars of witnesses who were present at the time of such alienation. He admitted that he did not file any document to show that himself and D.2 together purchased the property from Ryagalla Peddaiah.
20.He admitted that he did not file any document to show that himself and D.1 together alienated Ac.0-10 guntas of land in 28 O.S.No.2 of 2009
Sy.NO.740 from out of Ac.0-18 guntas of land. He further admitted that he did not file any document before the Court showing that himself and D.1 together are in joint possession of
Ac.0-08 guntas in Sy.NO.740. He added that either himself or D.1 are not in possession of Ac.0-08 guntas of land in Sy.NO.740 and it is Ryagalla Peddaiah who is in possession and enjoyment of Ac.0- 08 guntas of land in Sy.No.740. According to him he filed the document showing that D.2 created the documents which fictitious in connection with the suit property. But the documents filed by the plaintiff were got exhibited on his behalf were already referred to earlier.
21.According to P.W.1 that the pattedars who are in possession and enjoyment of plaint schedule items 1 to 4 by the time of institution of the present suit and at present D.2 and D.3 are in possession and enjoyment of the items 1 to 4 of suit property. He admitted that he did not issue any notice to D.1 to
D.3 prior to institution of the present suit informing them that he had interest in the suit property. He added that he entered into agreement with D.1 in which he recited that he had share in the suit property items 1 to 4. He denied the suggestion that himself 29 O.S.No.2 of 2009 and D.1 did not do any joint business at all. He added that in 1983 himself and D.1 got separated and D.1 did cement business whereas he ran beedi company at Metpalli and himself and D.1 did business jointly at that time and the licence of the said business stands in his name and thereafter that they separated in 1983 he entrusted said licence to D.1 and still said licence stands in the name of D.1. But, he admitted that he did not file the said licence
before this Court. He further admitted that he did not file any
document before the Court showing alienation of Ac.0-10 guntas of land in Sy.NO.740. He next admitted that he also did not file any document showing particulars of vendees who are alleged to have purchased the said land from them and date of its purchase.
22.P.W.1 further admitting that he did not issue any notice to the defendants prior to institution of the present suit with a request to them to rectify wrong entries made in the revenue records pertaining to suit property and to take steps for cancellation of registered sale deeds as those sale deeds are void ab-initio and would not bind on him. He added that he made representation to the MRO to rectify the revenue records 30 O.S.No.2 of 2009 pertaining to the suit property. According to him that he filed copy of said representation showing proof of his lodging representation before the concerned revenue authorities.
According to him after institution of the present suit he came to know about the sale deeds under Exs.A.5 to A.7. He did not issue any notice to the alleged vendees of Ex.A.5 to A.7 intimating to them that Exs. A.5 to A.7 are void abinitio and would not bind on him. According to him that he filed copy of partition deed among himself and his two brothers before this Court. He admitted that he did not file copy of appeal or representation which he filed against D.2 before MRO or RDO Karimnagar before this Court.
23.According to him (PW.4) that he sent a legal notice to the defendants prior to institution of the present suit and the defendants did not issue any reply to his notice. He deposed that he did not ask D.1 to provide copy of simple sale deed under which he alleged to have alienated the suit items 1 to 4 properties during his life time. He added that whatever his elder brother said he simply heard his voice. According to him that he does not know about the sale transaction between Saire Rambabu and Pudari 31 O.S.No.2 of 2009
Satyanarayana Goud in Sy.NO.741/A pertaining to item No.2 of the plaint scheduled. He does not know about the Court decrees between Saire Rambabu and Pudari Satyanarayana Goud.
24.P.W.1 further deposed except his filing the present suit he did not file any other suit before the Court of complex jurisdiction challenging the ROR (ROR/274/1998, dated 4.1.2006) proceedings. He added that date of birth of D.2 is of the year 1973, as such the above ROR proceedings are all false. According to him that he filed date of birth certificate of D.2 showing that his date birth is of 1973 before this Court but no such document is filed as per record. He next deposed that in the year 2010 or 2011 he came to know about the pattedar pass book and other pahanies as defendants produced those documents before this
Court which in his opinion are false and nothing but concoction, that he did not file any document before this court showing that their three brothers purchased Ac.0-13 guntas of land in
Sy.No.683/AA from Yasinbee and Syed Hyder mentioned in
I.A.817/2016, under Order 6, Rule 17, C.P.C.
32 O.S.No.2 of 2009
25.P.W.3 deposed in support of case of plaintiff. He also deposed that he measured the land with the help of Nemuri
Lasmaiah which is infront of his house and Saibaba Temple and it is still in joint possession after selling part of the same and it has to be partitioned between plaintiff and D.1.
26.In cross examination it is elicited from P.W.3 he came to know about the facts plaintiff and D.1 jointly purchasing the properties among them through plaintiff. He added that he went to measure the property of plaintiff and D.1 at Metpalli. He admitted that as he does not know the particulars of the property which the plaintiff and D.1 alienated jointly and its extents. He did not incorporate about the same in his chief examination affidavit. He next deposed that he does not know the survey numbers of the landed property mentioned by him in his chief examination affidavit and its particulars. He clearly deposed that he was not present and he did not witness nor attest the property transaction between plaintiff and D.1 mentioned by him in his evidence affidavit. He admitted that he is having deep acquaintance with P.W.1. He next deposed that it is P.W.1 who 33 O.S.No.2 of 2009 informed him that he has equal shares with D.1 in the remaining property after himself and D.1 alienated the property. He further deposed that he came to know about the properties standing in the name of D.1 through P.W.1 only and as per the directions of
P.W.1 only he is giving his evidence. Therefore, the evidence of
P.W.3 clearly shows that his evidence is only hearsay evidence and he came to know about the facts through P.W.1.
27.Plaintiff did not file any document showing partition by his father among their brothers. The plaintiff did not file any document to show that himself and his brothers Rajaiah did joint business of cement tiles and cement rings. He did not file any document regarding their business. He did not file any account statement with regard to the said business. He did not file any document to show as to when the said business was started and when it was closed. No document is filed to show the income from out of said business. No document is filed to show that plaintiff and D.1 jointly purchased the property. No document is filed to show the agreement between the plaintiff and D.1 under which himself and D.1 deposited their shares of amount as secured 34 O.S.No.2 of 2009 amount and to show from such secured amount the properties were purchased jointly.
28.There is no independent evidence to show the purchases by plaintiff and D.1 in the name of D.1. There is no any independent evidence to show the joint alienation of Ac.0-10 guntas of land from out of Ac.0-18 guntas in Sy.No.740. There is no any material to show that the joint possession of plaintiff and
D.1 in Ac.0-08 guntas of land in Sy.No.740. There is no independent evidence on behalf of plaintiff regarding creation of documents by D.2 under the originals of Exs.A.5 to A.7. The plaintiff did not issue any notice before filing suit claiming interest or rights in the suit property. There is no any material to show the licence in favour of D.1.
29.Therefore, the plaintiff did not adduce any convincing evidence in support of his contentions. The absence of evidence on behalf of defendants is not a ground for dismissal of suit.
Hence, the Court holds that the plaintiff failed to prove that himself and D.1 did joint business of cement tiles and cement rings and with the income derived on the business they jointly acquired 35 O.S.No.2 of 2009 the suit properties and that he is entitled to half share in the property. Issue No.1 is answered accordingly.
30.The Court further holds that the plaintiff failed to prove that the registered sale deeds bearing document Nos.1399 of 2005, dated 13.05.2005, 380 of 2009, dated 12.03.2009 and 381 of 2009, dated 12.03.2009 were brought into existence by D.1 and D.2 without consideration and delivery of possession and he failed to prove that they can be declared as null and void and not binding on him. Issue No.2 is answered accordingly.
31.The Court further holds that the plaintiff failed to prove that his suit is within limitation as from long time he lost possession over the suit properties and as he failed to prove the joint possession over the suit properties. Issue No.3 is answered accordingly.
32.The Court further holds that the plaintiff failed to prove that he is entitled for partition and separate possession of his alleged half share in the suit properties. Issue No.5 is answered accordingly.
36 O.S.No.2 of 2009
33.In view of the findings of this Court on issues No.1 to 5 this suit has to be dismissed. But, in the facts and circumstances, both parties can be directed to bear their own costs. This issue is answered accordingly.
34.In the result, the suit is dismissed. In the facts and circumstances of the case, both parties are directed to bear their own costs.
Dictated to Stenographer Gr.II, transcribed by him, corrected and
pronounced by me, in the open Court on this the 11th day of April, 2018.
III Additional District Judge, Karimnagar. FAC: II Additional District Judge, Karimnagar at Jagtial.
Appendix of Evidence
Witnesses examined For the Plaintiff:
P.W.1: Bethu Rajaram P.W.2: Eschewed P.W.3: Devarashetty Gundaiah
For the Defendants:
-NONE- 37 O.S.No.2 of 2009
Exhibits marked For the Plaintiff: Ex.A.1--Copy of pahani for the year 2007-2008,
Ex.A.2--Copy of pahani for the year 1999-2000,
Ex.A.3--Copy of pahani for the year 2000-2001,
Ex.A.4--Copy of pahani for the year 2005-2006
Ex.A.513.05.2005 Certified copy of Registered Sale deed
Ex.A.612.03.2009 Certified copy of Registered Sale deed
Ex.A.712.03.2009 Certified copy of sale deed
Ex.A.8Copy of pahani for the year 1988-89
Ex.A.9Copy of pahani for the year 1995-96
Ex.A.10Copy of pahani for the year 1997-98
Ex.A.11Copy of pahani for the year 1982-83
Ex.A.12Copy of pahani for the year 1988-89
Ex.A.13Copy of pahani for the year 1998-99
Ex.A.14CC of copy of mutation register of Mootapalli for the year 1998-99
Ex.A.15Copy of pahani for the year 2003-2004
Ex.A.16Copy of pahani for the year 2003-2004
For the Defendants: NIL.
III Additional District Judge, Karimnagar. FAC: II Additional District Judge, Karimnagar at Jagtial.