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OS.80 of 2013, Dated:05/08/2016 - AFT
IN THE COURT OF THE SENIOR CIVIL JUDGE, RAJAM.
Present:- Sri M.P.Sannidhi Rao,
Senior Civil Judge.
Friday, the 5th day of AUGUST, 2016
O.S.No.80 of 2013
Between:-
Sunkari Venkatalakshmi, W/o Ramakrishnarao, aged 40 years, Hindu, House hold, residing at Door No.14-118, China Mushidivada of Pendurti mandal, Visakhapatnam district … Plaintiff. And:-
1.Addanki Sampathkumar, S/o late Kamaraju, aged 50 years, hindu, Record Assistant, office of the Assistant Director, Handicapped, Social Welfare Department, collector Office, Srikakulam
2.Addanki Shivaprasadarao, S/o late Kamaraju, aged 45 years, Hindu, Section Officer, Office of the Conservator of forests, Aranya Bhavan, forest Department, Saifabad, Kharatabad, Hyderabad.
3.Gundapu Hemalatha, w/o Venkateswarlu, aged 48 years, Hindu, House hold, Unit No.18, Plot No.63, Dhansingh maidan, Kharagpur, Midnapur District, West Bengal state.
4.Goru Baburao, s/o Sanyasi, aged 45 years, Hindu, residing at Boddam of Rajam mandal, Srikakulam district
5.Varanasi Durgaprasad, S/o Kamaraju, aged 35 years, residing at Gayatrinagar, Rajam, Rajam mandal, Srikakulam district … Defendants
This suit is coming on 27/07/2016 for consideration before me in the presence of Sri P. Ramasankararao, Advocate for the plaintiff and of Sri S. Polarao, Advocate for the defendants No.1 to 3 and of Sri K. Kondalarao, Advocate for the Defendants No.4 and 5 and having heard on both sides and upon consideration, this court made the following:
JUDGMENT
1. This is the suit filed for grant of preliminary decree by way of partitioning the plaint schedule properties wet and dry lands into four equal shares and allot one such share to the plaintiff and deliver separate possession of the same to plaintiff and for mesne profits from the date of this suit and for costs of the suit etc.
2. The material of the plaint are in brief as follows:-
The plaintiff and defendants No.1 to 3 are the children of late Addanki Kamaraju and his wife Narasamma. The father of the plaintiff namely Kamaraju got ancestral lands situated at
Rajam and Gopalapuram near Rajam village of Rajam mandal of Srikakulam district and the father of the plaintiff died long back and the plaintiff and defendants No.1 to 3 are only the legal heirs of the deceased Kamaraju, on that the plaint schedule lands are the ancestral lands of plaintiffs and defendants No.1 to 3. After the death of the father of the plaintiff, namely 2
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Kamaraju, the plaintiff and defendants No.1 to 3 succeeded the plaint schedule property under
Hindu Succession Act, so the plaintiff has got 1/4th share in the plaint schedule properties. The plaintiff also mentioned in the plaint that only to divide the share of the plaintiff, defendants
No.1 to 3 in collusion with the defendants No.4 and 5 executed some nominal and collusive documents with fictitious recitals under the cover of alienation in favour of the defendants No.4 and 5 in respect of part of the joint family properties more fully described in the schedule annexed to the plaint and the said documents are not supported by any legal necessity and family benefits and the plaintiff is not a party to those documents. As such, they are not legally valid and binding on the plaintiff and they do not confer any right on the defendants
No.4 and 5 and they are void documents. Plaintiff further mentioned in the plaint that defendants No.1 and 2 have absolutely no necessity to alienate part of the plaint schedule properties as they well settled in position with good salaries. Plaintiff also further mentioned in the plaint that on account of the afore said nominal documents executed in favour of 4th and 5th defendants in respect of part of plaint schedule joint family properties, it is not safe and proper for the plaintiff to keep the properties in joint, so the plaintiff demanded the defendants No.1 to 3 to partition the plaint schedule properties into four equal shares and allot one such share to the plaintiff, but defendants No.1 and 2 did not come forward for amicable partition, on that plaintiff got issued registered legal notices to the defendants No.1 and 2, dated 12.11.2012 requesting them to partition the plaint schedule properties into four equal shares and allot one such share to the plaintiff and 1st defendant received the notice and the defendants No.1 and 2 gave reply notice, dated 30.11.2012 through their counsel with untrue allegations. Hence, the plaintiff filed the suit for partition of plaint schedule properties into four equal shares, and to allot one such share to her, and for separate possession of such share and grant of subsequent profits. Hence, this suit.
3. 1st defendant filed written statement and the same was adopted by defendants No.2 and 3 by filing memo. 1st defendant denied the material averments of the plaint and submitted that it is true the plaint schedule lands are ancestral lands of the plaintiff and defendants No.1 to 3.
It is also true that the plaintiff and defendants No.1 to 3 are the children of late Addanki
Kamaraju and it is true that the father of the plaintiff got ancestral lands situated at Rajam and
Gopalapuram near Rajam village of Rajam mandal of Srikakulam district and it is further true that the father of plaintiff died long back. 1st defendant also mentioned in the written 3
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statement that after the death of late Addanki Kamaraju, the 1st defendant managed the properties and defendants No.1 and 2 borrowed some amounts and performed the marriage of plaintiff, as the defendants are not having any other source of income. 1st defendant further mentioned in the written statement that 1st defendant joined in Government services in the year 1988 and the mother of the defendants and plaintiff by name Narasamma is alive and she is staying with defendants No.1 and 2 and the defendants No.1 and 2 performed the marriage of plaintiff by spending nearly Rs.5 lakhs out their salaries and they also paid cash of Rs.1 lakh in the year 2011 to the plaintiff and Rs.1 lakh to the 3rd defendant. 1st defendant also further mentioned in the written statement that it is not true that plaintiff demanded the defendants
No.1 to 3 to partition the plaint schedule properties into four equal shares and allot one such share to the plaintiff and the defendants did not come forward for amicable partition and the allegations in the plaint are all not true, valid and binding on the defendants and those allegations were created for the purpose of filing of the suit and the defendants have no properties in their hands and the plaintiff is not entitled to any 1/3rd share in the plaint schedule properties and the plaintiff filed this suit only to harass the defendants and the suit itself is not maintainable under law as the same is not bonafied one and 1st defendant prayed court may be pleased to dismiss the suit with costs in the interest of justice.
4. Defendants No.4 and 5 filed written statement by denying the material averments of the plaint and submitted that is not true that the plaint schedule lands are ancestral lands of plaintiff and defendants No.1 to 3 and father of the plaintiff got ancestral lands situated at
Rajam and Gopalapuram near Rajam village of Rajam mandal of Srikakulam district.
Defendants No.4 and 5 also mentioned in the written statement that it is true the plaintiff and defendants No.1 to 3 are the children of late Addanki Kamaraju and the father of the plaintiff and defendants namely Kamaraju died long back. Defendants No.4 and 5 further mentioned in the written statement that the plaintiff suppressed the true and correct facts and got filed this suit with false and untenable averments and as such the plaintiff is not entitled for the relief as claimed by the plaintiff. Defendants No.4 and 5 also further mentioned in the written statement that D1 and D2 are brothers and they are sons of deceased Addanki kamaraju who died long back. Plaintiff and Gundapu Hemalatha are sisters of D1 and D2, and D1 and D2 performed the marriage of plaintiff and Gundapu Hemalatha with their own efforts.
Narasamma is the mother of plaintiff, and D1 to D3. Addanki Narasamma is alive and staying 4
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with Defendant No.2 and after the death of Kamaraju some of the properties are managing by
Addanki Narasamma, and with the consent of Addanki Narasamma, D1 and D2 sold the vacant site in the name of D4 and D5, as the properties were devolved to D1 and D2 under Hindu
Succession Act after the death of Kamaraju, on that D1 and D2 became owners of plaint schedule properties and they sold the site to Defendant No.4 and 5 respectively. Defendant
No.4 and 5 further mentioned in the written statement that the defendants No.1 and 2 absolute owners of the plaint schedule covered in S.No.77-10 property and Defendants No.1 and 2 sold the same to Defendants No.4 and 5 for the marriage expenses of their sister Gundapu
Hemalatha and after verified the documents, Defendants No.4 and 5 purchased the site from
Defendant No.1 and 2, and Defendant No.1 and 2 received cash consideration from defendant
No.4 and 5 and executed registered sale deed, dated 15.10.2011 in favour of defendant No.4 and 5 separately and the defendants No.1 and 2 delivered the land in favour of defendant No.4 and 5 on the same day and ever since, defendants No.4 and 5 have been in continuous uninterrupted possession over the site which they purchased and the said transaction knows by the plaintiff but the plaintiff got filed this suit against Defendant No.4 and 5 with the instigation of Defendant No.1 and 2 and with the collusion of enimies of Defendants No.4 and 5 to grab the site which the defendants No.4 and 5 purchased from Defendants No.1 and 2 and the suit is bad for non-joinder of necessary parties as the mother of the plaintiff namely Narasamma is not shown as party to the suit and the plaintiff did not get issue any legal notices to defendants
No.4 and 5 even today and the plaintiff itself has no right to claim any share from defendants, and defendants No.1 and 2 gave the amount of Rs.1 lakh each to the plaintiff and presented ornaments at the time of her marriage and the defendants No.4 and 5 also further mentioned in the written statement that there is no such cause of action to file the suit and the boundaries and survey numbers and extent of the plaint schedule property are incorrect and this suit is not maintainable under law as they are the bonafied purchasers of site, and defendants No.4 and 5 prays the court may be pleased to dismiss the suit with costs in the interest of justice.
5. Basing on the pleadings of plaint and written statements, the following issues have been framed for trial:-
1.Whether the plaintiff is entitled to preliminary decree for partition of plaint schedule wet and dry lands into four equal shares and to allot one such share to the plaintiff and deliver possession of such share to the plaintiff?
2.Whether the plaintiff is entitled to mesne profits from the date of the suit?
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3.To what relief?
6. Plaintiff herself was examined as PW.1. The eldest brother of plaintiff namely Addanki
Kutumbarao examined as PW.2 in chief but he did not turn up to the court for cross examination. One Sunkari Chinnarao was examined as PW.3. Ex.A1 to A4 were marked on behalf of plaintiff. 1st defendant himself was examined as DW.1. Defendants No.2 and 3 are not examined. 5th defendant was examined as DW.2. Exs.B1 to B4 are marked through DW.1 and Ex.B5 was marked through DW.2 on behalf of defendants. 4th defendant was not examined.
7. Heard arguments on both sides.
8. Issue No.1:
1) Plaintiff self was examined as Pw.1 by filing her chief examination affidavit reiterating the averments of the plaint. Hence, there is no need to reiterate the chief examination of PW.1 once again. PW.1 stated that in her cross examination that her parents namely Addanki
Kamaraju and Narasamma blessed with 3 sons and two daughters namely Addanki
Kutumbarao, Defendant No.1 and D2, Gundapu Hemalatha and herself (PW.1) and the eldest brother namely Kutumbarao is residing at Chennai and she did not shown his eldest brother namely Kutumbarao as one of the defendants in this suit. PW.1 also stated in the cross examination that D1 and D2 are residing at Hyderabad for their employment purpose and her sister Gundapu Hemalatha was married about 30 years ago and she was (PW.1) married about 16 years ago. PW.1 also stated in the cross examination that her father Kamaraju died in the year 1983. PW.1 further stated in the cross examination that her three brothers namely
Kutumbarao, Defendants No.1 and 2 jointly performed her marriage. PW.1 denied the suggestion of Defendant No.1 to 3 counsel that her brothers spent money of Rs.8 lakhs for her marriage, but PW.1 stated voluntarily in the cross examination that her brothers spent money of Rs.1 lakh for her marriage and out of which Rs.60,000/- was given as dowry to her husband and Rs.40,000/- was spent for marriage expenses. PW.1 also denied the suggestion of the counsel for Defendant No.1 to 3 that her three brothers gave Rs.3 lakhs to her at the time of construction of her house at Chinna Musidi vada, Visakhapatnam, on that she is not entitled to claim share in the suit schedule properties. PW.1 stated in the cross examination by the counsel for the defendants No.4 and 5 that she got filed the suit after knowing that Defendant 6
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No.1 and 2 sold land to Defendants No.4 to 5 separately. PW.1 denied the suggestion of
Defendant No.4 and 5 counsel that she is not issued any legal notice to Defendants No.4 and 5 and also denied the suggestion that in order to clear her marriage expenses and to meet the medical expenses of her mother, Defendant No.1 and 2 sold land to Defendants No.4 and 5 and further denied the suggestion that her three brothers namely Kutumbarao, Defendants No.1 and 2 gave some amount to her as Pasupu kunkuma, on that she is not entitled to claim share in the suit schedule properties. PW.1 also further denied the suggestion of Defendant No.4 and 5 counsel that she got filed suit against Defendant No.4 and 5 along with Defendant No.1 to 3 with an intention to harass Defendant No.4 and 5.
2) PW.2 who is the 1st elder brother of Pw.1, who is also the brother of Defendant Nos.1 and 2 and Gundapu Hemalatha stated that his father namely Addanki Kamaraju has got ancestral land situated at Gopalpuram village for an extent of 1.43 cents and Defendants No.1 and 2 did not acquire the plaint schedule properties, so plaint schedule properties are the ancestral properties of his father Addanki Kamaraju. PW.2 also stated that from his childhood, he was grownup by his maternal grand father namely Garlanki Ramayya and he was settled at
Chennai. PW.2 further stated that he performed the marriage of his sisters namely PW.1 and
Gundapu Hemalatha, and at the time of their marriages, he did not give any dowry and other lanchanams except the marriage expense. PW.2 further stated in the chief examination that his sisters and brothers i.e. PW.1, Defendant No.3 and Defendants No.1 and 2 succeeded the plaint schedule properties and they are enjoying the properties jointly, so all the plaint schedule properties are the joint family properties of the defendants No.1 to 3 and PW.1 and his brothers i.e. Defendant No.1 and 2 have settled well of and they are doing good jobs in State
Government of AP, so they have no necessity to sell away the part of the plaint schedule lands.
PW.2 also further stated that his sister namely PW.1 raised dispute through him for her share and he convinced his brothers to give something to PW.1, but they refused to give anything to his sister PW.1. PW.2 did not turn up to the court for cross examination.
3) PW.3 stated in the chief examination that the father of PW.1 and Defendants No.1 to 3 namely Addanki Kamaraju has got ancestral lands situated at Gopalapuram village for an extent of A.C.1.43 cents and Defendants No.1 and 2 did not acquire the plaint schedule properties and the plaint schedule properties are in joint possession and enjoyment of Defendants No.1 to 3 7
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and PW.1. So, the plaint schedule properties are the joint family properties of PW.1 and defendants No.1 to 3. PW.3 also stated in his chief examination that Defendants No.1 and 2 have settled well of and they are doing good jobs in State Government of A.P. As such, they have no necessity to sell away the part of the plaint schedule lands. PW.3 further stated in his chief examination that PW.1 raised disputes through him and some others for her share but defendants No.1 and 2 refused to give her share.
4) PW.3 stated in the cross examination that the said Ac.1.45 cents of land consisting in 8 plots and PW.3 denied the suggestion of defendants No.1 to 3 counsel in the cross examination that the said Ac.1.45 cents of land is self acquired properties of Defendant No.1 and 2. PW.3 also denied the suggestion of the counsel for defendant No.4 and 5 that after the death of father of Defendant No.1 to 3 and plaintiff, their joint family properties are mutated in the name of Defendant No.1 and 2 in revenue and panchayat records.
5) 1st defendant himself was examined as DW.1 by filing his chief examination affidavit reiterating the averments of his written statement. Hence, there is no need to reiterate the chief examination of DW.1 once again. DW.1 stated in the cross examination by the counsel for the plaintiff that all the suit schedule properties are the ancestral properties of his father namely late Addanki Kamaraju and his father, and mother namely Addanki Kamaraju and Narasamma blessed with three sons and two daughters namely Kutumbarao, himself, Defendants No.2 and 3, and PW.1. DW.1 also stated in the cross examination that presently he is working as Record
Assistant in A.P. Vikalangula corporation Limited at Hyderabad and his younger brother namely
Defendant No.2 is working as Section Forest Officer at Hyderabad and his mother is living with him and his younger brother defendant No.2 for a period of one year each. DW.1 further stated in the cross examination by the counsel of plaintiff that he has not acquired any other lands except the plaint schedule land which devolved to him and his brother defendant No.2 from his late father. DW.1 also stated that himself and his younger brother Defendant No.2 purchased land an extent of Ac.1.18 cents from their junior paternal uncle, but they did not get registered the said land in their favour. DW.1 further stated that his father died in the year 1983, and thereafter himself and his younger brother defendant No.2 performed the marriage of plaintiff in the year 1993 or 1994 by borrowing money from others, but there is no proof with regard to borrowing of money of Rs.5 lakhs for the marriages of their sisters i.e. Defendant 8
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No.3 and plaintiff. DW.1 also further stated that himself and his younger brother jointly paid
Rs.1 lakh to defendant No.3 and Rs.1 lakh to plaintiff but himself and Defendant No.2 did not obtain any receipt or document from defendant No.3 and Plaintiff with regard to given up their rights over the plaint schedule properties as they paid the said amount. DW.1 also stated in the cross examination that himself and Defendant No.2 sold land to defendants No.4 and 5 for a valuable consideration of Rs.1 lakh per cent. DW.1 denied the suggestion of plaintiff counsel that himself and Defendant No.2 never paid Rs.1 lakh each to plaintiff and defendant No.3 at any time and also denied the suggestion that himself and defendant No.2 never purchased any land from their junior paternal uncle and further denied the suggestion that out of the income derived from suit schedule property and other properties of their joint family, himself and defendant No.2 performed the marriages of defendant No.3 and plaintiff. DW.1 admitted in the cross examination that himself and defendant No.2 got issued reply notice but they did not get mentioned in their reply notice that they performed the marriages of defendant No.3 and plaintiff by borrowing money from others and also admitted in the cross examination that himself and defendant No.2 got mentioned in their reply notice that they have no properties.
DW.1 stated in the cross examination by the counsel of defendant No.4 and 5 that himself and 2nd defendant jointly sold the land to an extent of 13 ¾ cents covered in Survey No.117/10 of
Rajam village to defendant No.4 under a registered sale deed, and he and defendant No.2 also jointly sold the land to an extent of 16 ¼ cents covered in S.No.175/10 of Rajam village to defendant No.5 under registered sale deed.
6) 5th defendant himself was examined as DW.2 by filing his chief examination affidavit reiterating the averments of his written statement. Hence, there is no need to reiterate the chief examination of DW.2.
DW.2 stated in the cross examination by the plaintiff counsel that he did not enquire about the particulars of family members of defendant No.1 and 2. DW.2 also stated in the cross examination that after receiving suit summons relating to this suit, he executed registered sale deed in favour of one Tavitinaidu resident of Garraju Cheepurupalli relating to the property covered under Ex.B5 registered sale deed, but he did not get mentioned in his written statement that he has not in possession and enjoyment of the property covered under Ex.B5 registered sale deed and he sold away the same. DW. 2 also stated in his cross examination 9
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that he do not remember whether he got mentioned or not in his written statement that he is in possession and enjoyment of the property covered under Ex.B5 registered sale deed. DW.2 further stated in his cross examination that 4th defendant purchased another bit of land and he (Defendant No.4) is in possession and enjoyment of the same. DW.2 denied the suggestion of plaintiff counsel in the cross examination that Ex.B5 registered sale deed is not binding on the plaintiff as she is not a party in Ex.B5 registered sale deed. DW.2 stated in the cross examination by the counsel for the defendant No.1 to 3 that he purchased the part of the suit schedule property under Ex.B5 registered sale deed from defendant No.1 and 2, in turn he sold away the same under registered sale deed.
7) On a perusal of the evidence of PWs 1 to 3 and DW.1, it is an admitted fact that one
Kutumbararao, DW.1, Defendants No.2 and 3 and plaintiff are the children of late Addanki
Kamaraju and Narasamma. It is also an admitted fact that the suit schedule properties are the ancestral properties of Addanki Kamaraju which fell to his share in the partition between him and his brothers. It is further admitted fact that Addanki Kamaraju who is the father of
Kutumbarao, DW.1, defendants No.2 and 3 and PW.1 is no more and he died long back i.e. in the year 1983 and wife of the deceased Kamaraju namely Narasamma who is the mother of
Kutumbarao, DW.1, defendant No.2, Defendant No.3 and PW.1 is alive and she is residing at the house of defendant No.1 and defendant No.2 for a period of one year each. It is also further admitted fact that defendant No.1 and 2 are residing at Hyderabad for their employment purpose. It is also further admitted fact that the brother of DW.1, defendant No.2, defendant
No.3 and Pw.1 namely Kutumbarao went in adoption and he is settled at Chennai. Hence, there is no dispute with regard to the relationship between Kutumbarao, DW.1, defendant No.2, defendant No.3 and PW.1.
8) It is the contention of PW.1 that after the death of her father namely Addanki Kamaraju, the plaint schedule properties which are ancestral, devolved to her, DW.1, defendant No.2 and defendant No.3, as they are the children and joint family members of late Addanki Kamaraju and as DW.1 is the manager of their joint family, DW.1 looking and managing the suit schedule properties, on that the name of DW.1 was mutated in revenue records in respect of suit schedule properties. PWs 2 and 3 supported the evidence of PW.1 on the aspect that suit schedule properties are the ancestral properties of Addanki Kamaraju who is the father of 10
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Kutumbarao, DW.1, defendant No.2, defendant No.3, PW.1 and after the death of kamaraju, his ancestral properties i.e. suit schedule properties devolved to Kutumbarao, DW.1, Defendant
No.2, defendant No.3 and PW.1 and they are enjoying the same as joint family properties.
DW.1, defendant No.2 and defendant No.3 admitted in their written statement and in the evidence of DW.1 that the suit schedule properties are their ancestral properties devolved to them and plaintiff after the death of their father late Addanki Kamaraju. DW.2 mentioned in his written statement and stated in his evidence that the suit schedule properties are not the ancestral properties of DW.1, defendant No.2, defendant No.3 and PW.1, and DW.2 stated that as the name of DW.1 was mutated in the revenue records in respect of suit schedule properties, he purchased 16 1/4th cents of land under Ex.B5 registered sale deed from defendant No.1 and 2, and ever since of the purchase, he is in possession and enjoyment of the same and later he sold away the same to one Thavitinaidu resident of Garraju Cheepurupalli village. But DW.1, defendant No.2 and defendant No.3 admitted in their written statement and in the evidence of
DW.1 that the suit schedule properties are the ancestral properties of their father late Addanki
Kamaraju and after the death of their father Addanki Kamaraju, the suit schedule properties devolved to them and Pw.1, as they are the joint family members. Hence, though, DW.2 denied that the suit schedule properties are not the ancestral properties of DW.1, defendant
No.2, defendant No.3 and Pw.1, since DW.1, defendant No.2 and defendant No.3 admitted in their written statement and in the evidence of DW.1, this court disbelieve the evidence of DW.2 and believes the evidence of PWs 1 to 3 and DW.1 and the contents of written statement of
DW.1 that the suit schedule properties are the ancestral properties of late Kamaraju who is the father of Kutumbarao, DW.1, defendant No.2, defendant No.3 and Pw.1, and after the death of
Kamaraju, Kutumbarao DW.1, defendant No.2, defendant No.3 and plaintiff and their mother
Narasamma are jointly enjoying the suit schedule properties. Hence, the suit schedule properties are the joint family properties of Kutumbarao, DW.1, defendant No.2, defendant
No.3 and Pw.1 and their mother Narasamma.
9) It is the evidence of PW.1 that her elder sister i.e. Defendant No.3 was married about 30 years ago, and her (PW.1) brothers namely Kutumbarao, DW.1, Defendants No.2 and 3 are jointly performed her marriage about 16 years ago, after the death of her father namely
Kamaraju by spending money of Rs.1 lakh which is the income of the joint family properties, but DW.1 stated that himself and Defendant No.2 performed the marriage of PW.1 by spending 11
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money of Rs.5 lakhs by borrowing money from others, but DW.1 did not file any piece of evidence i.e. promissory notes etc to prove his contention that himself and defendant No.2 borrowed money and performed the marriage of Pw.1 by spending money of Rs.5 lakhs. PW.1 stated that at the time of her marriage, Rs.60,000/- was given to her husband as dowry and
Rs.40,000/- was spent for marriage expenses. Since Pw.1 admitted that her brothers namely
Kutumbarao, DW.1 and defendant No.2 performed her marriage, there was no dispute with regard to performing of marriage of PW.1 by Kutumbarao, DW.1 and defendant No.2.
10) DW.1 stated that to discharge the debts contacted for the purpose of marriage of PW.1, himself and Defendant No.2 jointly sold land an extent of 13 ¾ cents to defendant No.4 and 16 ¼ cents to DW.2 for a valuable consideration of Rs.1 lakh per cent and the said land is part of their (DW.1 and defendant No.2) self acquired property which they purchased an extent of
Ac.1.18 cents from their junior paternal uncle and they did not get registered any document for the said land in favour of them. Though, the land an extent of Ac.1.18 cents was not registered in favour of DW.1 and defendant No.2, it is the burden lies on DW.1 and defendant
No.2 to prove their contention that they purchased Ac.1.18 cents from their junior paternal uncle but DW.1 and defendant No.2 did not examine their junior paternal uncle and DW.1 and defendant No.2 even did not file agreement of sale in respect of the land an extent of Ac.1.18 cents into the court. Hence, this court disbelieve the evidence of DW.1 on the aspect that
DW.1 and defendant No.2 jointly purchased the land an extent of Ac.1.18 cents from their junior paternal uncle and they sold land an extent of 13 ¾ cents to defendant No.4 and 16 ¼ cents to DW.2 in the said alleged land of Ac.1.18 cents. PWs 1 to 3 stated that there was no necessity to DW.1 and D2 to borrow money to perform the marriage of PW.1 as DW1 and defendant No.2 are doing job and they well settled and they are enjoying the income derived from the suit schedule properties which are ancestral. PW.1 stated that for their (DW.1 and
D2) own purpose DW.1 and defendant No.2 jointly sold the land an extent of 16 1/4th cents to defendant No.4 and 13 ¾ cents to defendant No.5 and they did not give any amount to her out of the sale consideration of the said land. Hence, in view of the above discussion, this court disbelieve the evidence of DW.1 that DW.1 and defendant No.2 did not sell the land an extent of 16 ¼ cents to defendant No.4 and 13 ¾ cents to defendant No.5 to discharge the debts contacted by DW.1 and defendant No.2 towards marriage expenses of PW.1, and DW.1 and defendant No.2 sold the land an extent of 13 ¾ cents to defendant No.4 and the land an extent 12
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of 16 ¼ cents to defendant No.5 which is the part of the suit schedule properties, for their own purpose.
11) It is the contention of DW.1 and defendant No.2 that they gave Rs.1 lakh each to defendant No.3 and PW.1 but PW.1 denied the same and categorically stated that DW.1 and defendant No.2 never given any amount much less Rs.1 lakh to her and Rs.1,00,000/- to defendant No.3. If really DW.1 and defendant No.2 paid an amount of Rs.1 lakh each to defendant No.3 and Pw.1, definitely they would have obtained relinquishment letter from
Defendant No.3 and Pw.1 that PW.1 and defendant No.3 relinquishing their rights over the suit schedule properties. Dw.1 also stated that himself and defendant No.2 given Rs.3 lakhs to
PW.1 and her husband while the husband of PW.1 constructing house at Chinnamusidivada of
Visakhapatnam, but PW.1 denied the same and PW.1 categorically stated that DW.1 and defendant No.2 never given any amount much less Rs.3 lakhs to her and her husband at any time even while constructing their house at Chinna musidivada of Visakhapatnam.
12) DW.2 stated that Defendant No.4 purchased land an extent of 16 ¼ cents and he purchased land an extent of 13 ¾ cents from DW.1 and defendant No.2 as the name of DW.1 was mutated in the revenue records in respect of the property purchased by them from DW.1 and defendant No.2. DW.2 also stated that he did not enquire about the details of family members of DW.1 and defendant No.2. If any person wanted to purchase land from anybody, definitely the purchaser would have enquire about the family members details and the land details. DW.1 admitted that himself and defendant No.2 jointly sold land an extent of 16 ¼ cents to defendant No.4 under register sale deed (Ex.B5). On a perusal of Ex.B1 to B4 which are pattadar pass book and title deed books which discloses that the suit schedule properties are mutated in the name of DW.1. PWs 1 to 3 categorically stated in their evidence that since
DW.1 managing the suit schedule properties as manager of joint family after the death of his late father Addanki Kamaraju, the name of DW.1 was mutated in the revenue records in respect of plaint schedule properties. On a perusal of Ex.B5 which is a registered sale deed stood in the name of DW.2, categorically shows that the land an extent of 13 ¾ cents which purchased by Dw.2 under Ex.B5 registered sale deed is a part of the suit schedule lands and the land purchased by defendant No.4 an extent of 16 ¼ cents is also part of the suit schedule lands.
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13) PW.1 stated that after she coming to know that Dw.1 and defendant No.2 executed nominal and sham documents in favour of defendant No.4 and DW.2 for part of suit schedule properties in order to defeat her right over the suit schedule properties, she got issued the original of Ex.A1 registered legal notice to DW.1 and defendant No.2 with a demand for partition of suit schedule lands into four equal shares and to allot one such share to her, and
DW.1 received the said legal notice under Ex.A2 postal acknowledgement and registered cover addressed to defendant No.2 i.e. Ex.A3 was returned and DW.1 and defendant No.2 jointly got issued reply notice Ex.A4 with false averments and DW.1 and defendant No.2 did not come forward to partition the suit schedule properties into four equal shares and to allot one such share to her, on that she got filed this suit against DW.1, Defendant No.2 and defendant No.3 for partition of suit schedule properties into four equal shares and also against the purchasers i.e. DW.1 and defendant No.4. DW.1 admitted that PW.1 got issued the original of Ex.A1 legal notice, on that himself and his brother i.e. defendant No.2 jointly issued Ex.A4 reply notice with true facts as the marriage of PW.1 was performed by him and defendant No.2 by spending Rs.5 lakhs and gave Rs.3 laks to PW.1 and her husband at the time of construct of the house of
PW.1 and her husband at Chinnamusidivada of Visakhapatnam and DW.1 admitted that himself and Defendant No.2 jointly sold an extent of 13 ¾ cents to defendant No.4 and 16 ¼ cents to
DW.2, and DW.2 stated that he purchased land an extent of 16 ¼ cents from DW.1 and defendant No.2 under Ex.B5 registered sale deed and after receiving suit summons relating to this suit, he sold the land covered under Ex.B5 registered sale deed i.e. an extent of 16 ¼ cents which he purchased from DW.1 and defendant No.2, to one Tavitinaidu, resident of Garraju cheepurupalli village and he was not in position and enjoyment of the same. Since the brother of PW.1 namely Kutumbarao, DW.1, defendant No.2 and defendant No.3 admitted with the evidence of PW.1 that the suit schedule properties are the ancestral properties of their father late Kamaraju and after the death of their father Kamaraju, the suit schedule properties which are ancestral devolved to them and their mother Narasamma. DWs 1 and 2 have no execlusive right to sell the suit schedule properties to anybody without the knowledge of defendant No.3, PW.1 and Kutumbarao, and the sale transaction for the land an extent of 13 ¾ cents to defendant No.4 and the land an extent of 16 ¼ cents to DW.2 between DW.1, defendant No.2 and defendants No.4 and 5 is not valid transaction and the registered sale deed i.e. Ex.B5 stood in the name of DW.2 for the land an extent of 13 ¾ cents and the registered 14
OS.80 of 2013, Dated:05/08/2016 - AFT
sale deed for the land an extent of 16 ¼ cents executed in favour of defendant No.4 by DW.2 and Defendant No.2 are not binding on PW.1, Kutumbarao and defendant No.3 and their mother Narasamma as DW.1 and defendant No.2 have no right to sell the said land in favour of defendant No.4 and 5 separately which is part of the suit schedule properties which are ancestral.
In view of the above discussion that suit schedule properties are ancestral properties of the joint family of Kutumbarao, DW.2, defendant No.2, defendant No.3 and Pw.1 and their mother Narasamma, on that the suit schedule properties are liable for partition between family members into six equal shares and PW.1 is entitled to 1/6th share in the suit schedule properties as the 1st brother of PW.1 namely Kutumbarao and the widow mother of PW.1 namely
Narasamma is also entitle for share in the joint family properties along with DW.1, defendant
No.2, defendant No.3 and PW.1. Accordingly, issue No.1 is answered in favour of PW.1 and against the defendants.
9. Issue No.2:
Since issue No.1 is decided in favour of plaintiff and against the defendants that the suit schedule properties are the ancestral properties and the same are liable for partition and Pw.1 is entitled to 1/6th share in the suit schedule properties, Pw.1 is entitle for mesne profits on separate application over her share from the date of filing of the suit till the date of delivery of possession of 1/6th share in the suit schedule properties to PW.1. Accordingly, issue No.2 is answered in favour of plaintiff and against the defendants.
10. Issue No.3:
In the result, the suit is decreed preliminarily with costs for partition of the plaint schedule wet and dry lands into six equal shares, and allot one such share to the plaintiff, and the plaintiff is entitled to mesne profits on a separate application from the date of filing of the suit, till the date of delivery of such 1/6th share to Plaintiff.
Dictated to the Typist who is qualified in shorthand writing, transcribed by him, corrected and
pronounced by me in open court, this the 5th day of AUGUST, 2016.
Senior Civil Judge,
Rajam 15
OS.80 of 2013, Dated:05/08/2016 - AFT
Appendix of Evidence Witnesses Examined For Plaintiff: PW.1 : Sunkari Venkatalakshmi PW.2 : Addanki Kutumbarao PW.3 : Sunkari chinnarao
For Defendants:
DW.1 : Addanki Sampathkumar DW.2 : Varanasi Durgaprasad Documents Marked For Plaintiff:
Ex.A1 : Office copy of registered lawyer notice issued to the defendants No.1 and 2, dated 12.11.2012 Ex.A2 : Acknowledgment of the defendant No.1 Ex.A3 : Unserved cover addressed to the 2nd defendant Ex.A4 : Reply notice, dated 30.11.2012 issued by the counsel for defendant No.1 and 2 by the counsel for the plaintiff
For Defendants:
Ex.B1 : Pattadar pass book issued by the MRO, Rajam in favour of DW.1 Ex.B2 : Title deed book issued by MRO, Rajam in favour of DW.1 Ex.B3 : Title deed book issued by the MRO, Rajam in favour of DW.1 Ex.B4 : Pattadar pass book issued by the MRO, Rajam in favour of Dw.1 Ex.B5 : Registered sale deed, dated 15.10.2011 executed by Addanki Sampathkumar and Addanki Sivaprasadarao in favour of DW.2
Senior Civil Judge
RAJAM 16
OS.80 of 2013, Dated:05/08/2016 - AFT
05/08/2016: Judgment pronounced in open court (vide separate one) In the result, the suit is decreed preliminarily with costs for partition of the plaint schedule wet and dry lands into six equal shares, and allot one such share to the plaintiff, and the plaintiff is entitled to mesne profits on separate application from the date of filing of the suit, till the date of delivery of such 1/6th share to
Plaintiff.
SCJ/Rajam 17
OS.80 of 2013, Dated:05/08/2016 - AFT
Date of Presentation:17/07/2013 Date of filing:01/11/2013
IN THE COURT OF THE SENIOR CIVIL JUDGE, RAJAM.
Present:- Sri M.P.Sannidhi Rao,
Senior Civil Judge.
Friday, the 5th day of AUGUST, 2016
O.S.No.80 of 2013
Between:-
Sunkari Venkatalakshmi, W/o Ramakrishnarao, aged 40 years, Hindu, House hold, residing at Door No.14-118, China Mushidivada of Pendurti mandal, Visakhapatnam district … Plaintiff. And:-
1.Addanki Sampathkumar, S/o late Kamaraju, aged 50 years, hindu, Record Assistant, office of the Assistant Director, Handicapped, Social Welfare Department, collector Office, Srikakulam
2.Addanki Shivaprasadarao, S/o late Kamaraju, aged 45 years, Hindu, Section Officer, Office of the Conservator of forests, Aranya Bhavan, forest Department, Saifabad, Kharatabad, Hyderabad.
3.Gundapu Hemalatha, w/o Venkateswarlu, aged 48 years, Hindu, House hold, Unit No.18, Plot No.63, Dhansingh maidan, Kharagpur, Midnapur District, West Bengal state.
4.Goru Baburao, s/o Sanyasi, aged 45 years, Hindu, residing at Boddam of Rajam mandal, Srikakulam district
5.Varanasi Durgaprasad, S/o Kamaraju, aged 35 years, residing at Gayatrinagar, Rajam, Rajam mandal, Srikakulam district … Defendants
This is the suit filed for grant of preliminary decree by way of partitioning the plaint schedule properties wet and dry lands into four equal shares and allot one such share to the plaintiff and deliver separate possession of the same to plaintiff and for mesne profits from the date of this suit and for costs of the suit etc.
Value of the suit is Rs.7,45,000/-, Plaintiff’s share is Rs.1,86,250.00, and Plaintiff’s 3/4th value is Rs.1,39,686/-
Court fee of Rs.200/- is paid u/sec.34(2) of APCf & S.v.Act, 1956 by way of cash deposit in SBI, Rajam branch on 08.02.2016
This suit is coming on 27/07/2016 for consideration before me in the presence of Sri P. Ramasankararao, Advocate for the plaintiff and of Sri S. Polarao, Advocate for the defendants No.1 to 3 and of Sri K. Kondalarao, Advocate for the Defendants No.4 and 5 and having heard on both sides and upon consideration, this Court doth ORDER and DECREEas follows:-
i) That the suit be and the same is hereby decreed preliminarily for partition of the plaint schedule wet and dry lands into six equal shares, and allot one such share to the plaintiff, and the plaintiff is entitled to mesne profits on separate application from the date of filing of the suit, till the date of delivery of such 1/6th share to Plaintiff; and 18
OS.80 of 2013, Dated:05/08/2016 - AFT
ii) That the defendants do pay to the plaintiff a sum of Rs.903/- towards of the costs of the suit.
(Plaint schedule and valuation slips are herewith annexed)
Given under my hand and the seal of the Court, this 5th day of AUGUST, 2016
Senior Civil Judge,
Rajam
Memorandum of Costs
For Plaintiff : Rs. For Defendants : Stamp on plaint 200.00 Stamp on Vakalat : 03.00 Stamp on vakalat : 03.00 Advocate fee : 500.00 Stamp on process : 200.00 Costs incurred : 503.00 Advocates fee : 500.00 Costs allowed : 903.00
Senior Civil Judge,
Rajam
Certified that the decree is properly drafted
Sr. Superintendent
NOTE: - The parties should apply as soon as possible for the return of all exhibits, which
they may wish to preserve, as the record will be liable to be destroyed after
three years from the date of decree or order.
19
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Result:
OS.80 of 2013, Dated:05.08.2016 (AFT):
i) That the suit be and the same is hereby decreed preliminarily for partition of the plaint schedule wet and dry lands into six equal shares, and allot one such share to the plaintiff, and the plaintiff is entitled to mesne profits on separate application from the date of filing of the suit, till the date of delivery of such 1/6th share to Plaintiff; and ii) That the defendants do pay to the plaintiff a sum of Rs.903/- towards of the costs of the suit. Supdt.