Smt.M.Vani

IN THE COURT OF THE SENIOR CIVIL JUDGE AT WANAPARTHY.

Friday, the 26th dayof June, 2020

Present:-Smt M.Vani,

Senior Civil Judge, Wanaparthy.

Original Suit No.137 of 2014.

Between:

Chakali Sridevi @Devamma W/o Chakali Chinna Kashanna aged about 30 yrs, Occ: House wife R/o Danwada village and mandal, Mahabubnagar District.

…Plaintiff.

And

1.Jyothi W/o M.Suresh Babu aged about 26 yrs, Occ: House wife R/o Chinnaguntapally village of Wanaparthy mandal, Mahabubnagar District.

2.Chakali Balamma W/o Not known aged about 50 yrs, Occ: House hold R/o Mirasipally village, Kothakota mandal, Mahabubnagar District.

3.Karnati Videhi W/o Vijayabasker Reddy aged about 38 yrs, Occ: agril, R/o Mirasipally village, Kothakota mandal, Mahabubnagar District.

…Defendants. Sub:-Suit for cancellation of sale deed and partiton &Separate possession. ***

This suit coming before me for final hearing on 25.6.2020 through VC by Sri

B.Chandrashekar Rao, Advocate representing for the plaintiff and of Sri D.Bharath

Kumar, Advocate for defendant No.1 and of SriMd.Fazal Baig, Advocate representing for the defendant No.2 and of Sri G.Shankaraiah, Advocate representing for the defendant No.3 and upon perusing the material papers on record and having stood over for consideration till this day, this court delivered the following:

J U D G M E N T

The sole plaintiff filed suit for partitoin to partition the suit schedule property into equal shares and allot one share to plaintiff and one share to defendant No.1 and deliver the possession, cancel the sale deed with document No.12622 of 2009

dated 21.12.2009 executed by defendant No.2 infavour of defendant No.3.

2. The case of the plaintiff is that one Chakali Sayanna was owner of ‘A’, suit property to an extent of Ac.3-36 gts in Sy.No.573/A1 and ‘B’ schedule property

Ac.0-22gts in Sy.No.512 of Mirasipally village of Kothakota mandal of Mahabubnagar

District now Wanaparthy District and plaintiff and defendant No.1 are daughters of

Sayanna and Kondamma. Both Sayanna and Kondamma, when the plaintiff and defendant No.1 are in age of 10 years and 6 years respectively left the village and went to another state for labour work leaving the plaintiff and defendant, at their maternal grand parents house at Konnoor village of Kothakota mandal. Before 2 completion of the work, Sayanna came back to his village leaving his wife at work place, but Kondamma never came back. The maternal grandmother of the plaintiff and defendant no.1 performed their marriages and they are living at their in-laws houses. Sayanna died intestate on 9.7.1999 leaving the plaintiff and defendant NO.1 as his legal heirs since his wife Kondamma never came back and her where abouts not known. The plaintiff and defendant no.1 being the legal heirs of Sayanna their father, they are only entitled to succeed the suit schedule property. The plaintiff demanded defendant No.1 to give her share and also finally demanded on 12.6.2013 and defendant No.1 did not come forward to share the suit schedule property.

Taking advantage of the situation that the plaintiff and defendant No.1 are staying at their respective in-laws house, defendant No.3 without any manner of right got mutated her name in revenue records. Basing on entries in the revenue records defendant no.2 sold the suit schedule property to defendant No.3 under sale deed with document no.12622/2009 dated 21.12.2009 without any manner of right. Since the plaintiff’ are not parties to the sale deed it is not binding on the plaintiff and defendant No.1. Hence the suit.

3. Defendant NO.1 filed written statement admitting the relationship between her and plaintiff and also relationship with Sayanna and Kondamma that they are their parents. This defendant is interested for partition having share over the properties. The sale deed executed by defendant No.2 in favour of defendant

No.3 is not binding on this defendant. Since the defendant having equal share over the property decree the suit to allot one share to this defendant and one share to the plaintiff.

4. Defendant No.2 filed written statement admitting that Sayanna was owner of the suit schedule property and the plaintiff and defendant No.1 lived at their maternal grandmother of Konnoor village. This defendant is wife of Sayanna but not shown in the family pedigree referred in the plaint. This defendant got mutated her name in revenue records and the plaintiff and defendant NO.1 never objected for mutation. This defendant being owner of the suit property after the death of Sayanna being the wife of Sayanna sold the property to defendant No.3.

But plaintiff and defendant No.1 filed this collusive suit and dismiss the suit.

5. Defendant no.3 filed written statement admitting that Chakali Sayanna was owner of suit schedule property. This defendant denied the relationship between the plaintiff and defendant No.1 and Sayanna. This defendant also denied the claim of the plaintiff and defendant No.1 over the suit schedule property. This defendant admitted that Sayanna was died intestate on 9.7.1999 and plaintiff and defendant NO.1 are not the legal heirs of Sayanna. It is the positive case of this defendant that defendant No.2 legally wedded wife of Sayanna and they got one 3 daughter by name Govindamm and , she was not a party to the suit. After death of

Sayanna, the name of defendant No.2 mutated in revenue records vide proceedings

No.A/647/2009 and defendant No.2 sold Ac.4-00gts in Sy.No.573/A1 and Ac.0- 22gts in Sy.No.512 in total Ac.4-22gts. Defendant nO.2 sold entire property to this defendant under sale deed with document No.12622/2009 dt.21.12.2009, and this defendant got mutated her name in revenue records and obtained pattadar pass books and title deeds. This defendant being the owner of the suit property obtained loan from A.P.Grameena Bank, Kadukuntla village for developing the lands. There is a house bearing No.3-45/1 to an extent of 240 sq.yards of Mirasipally village belongs to Sayanna and the same is not included in the suit. The plaintiff and defendant

No.1 are not the legal heirs of Sayanna, as such the suit filed for partition is not maintainable and dismiss the suit.

6. Basing on the above said pleadings the court framed the following issues:- 1.Whether the plaintiff is entitled to cancel the registered sale deed of document No.12622 of 2009 dated 21.12.2009 executed by defendant No.2 in favour of defendant No.3 and treat the document is null and void?

2.Whether the plaintiff is entitled for preliminary decree to an extent of ½ share each to be allotted to the plaintiff and defendant No.1 in all that the suit schedule A &B properties?

3.Whether the plaintiff is entitled to pass a final decree in pursuance to the preliminary decree by appointing the Advocate commissioner to dividing the suit schedule A and B properties by metes and bounds and also to deliver the physical possession in favour of the plaintiff and D1?

4.To what relief?

7. During the trial the plaintiff examined as Pw1 and two more witnesses examined as Pw2 and Pw3 and Exs.A1 to A10 are marked. On behalf of defendants defendant No.2 examined as DW1, defendant nO.3 examined as DW2 and one more witness as DW3 and Exs.B1 to B22 are marked.

8. Heard both sides.

9. ISSUE NO.2:

It is the case of the plaintiff and defendant No.1 is that Chakali

Sayanna was their father and Kondamma was their mother and suit scheduleproperty belongs to Sayanna. It is also admitted by defendant No.2 that

Sayanna was owner of suit schedule property and she is the wife of Sayanna but not

Kondamma.. Defendant No.3 being purchaser of suit property from defendant No.2

also admitted that Sayanna was owner of suit schedule property. It is admitted by both plaintiff and defendants that Sayanna was died on 9.7.1999 intestate leaving the suit schedule property.

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10. The further case of the plaintiff and also admitted by D1 her sister,

Sayanna and Kondamma her parents went to another state for livelihood leaving behind the plaintiff and defendant No.1 at her maternal grand mother of Konnoor village and after some time Sayanna came back leaving kondamma at work place. In the absence of Sayanna and Kondamma, the plaintiff and defendant No.1 were brought up by their maternal grandmother. Even after Sayanna came back, the marriages of plaintiff and defendant No.1 performed by their maternal grandmother.

The plaintiff and defendant No.1 taken a plea that their mother Kondamma did not come back, as such her where abouts not known even till the death of Sayanna on9.7.1991. Defendant No.2 examined as DW1 admitted in her written statement and also her evidence that plaintiff and defendant No.1 lived at their maternal grandmother of Konnoor village and only they were brought up by her. The second defendant never disputed that plaintiff and defendant No.1 are the children of

Sayanna and Kondamma. On the other hand, defendant No.2 as DW1 admitted in her evidence that Kondamma was first wife of Sayanna and DW1 is the second wife of Sayanna and she got a daughter by name Govindamma through Sayanna. There is no evidence produced by DW1 that Sayanna married her legally when where abouts of Kondamma not known. Under Section 108 of Evidence Act that a person has not been heard of for seven (7) years, it deemed that person was died and the burden is on the person who asserted it. On the other hand, Pw2 being the younger brother of Sayanna and Junior paternal uncle of plaintiff and D1, admitted during the cross examination that defendant No.2 was brought by Sayanna and she lived with Sayanna and same is witnessed by him when he went to the house of Sayanna and Govindamma born to them. Since Pw2 is a family member of both plaintiff and defendant no.1, his admission is sufficient that Sayanna and defendant No.2 was lived as a wife and husband and gave birth to Govindamma. Neither Pw2 nor plaintiff and defendant No.1 raised any objection about the relationship between

Sayanna and defendant No.2. Since the where abouts of Kondamma, not known so far and the same is admitted by plaintiff as well as D2 and in the absence of

Kondamma, it can be inferred that Sayanna either married in the presence of family members or brought defendant No.2 as a wife and gave birth to a daughter

Govindamma it can be said that defendant No.2 was a second wife of Sayanna.

Pw3, the maternal uncle of plaintiff and defendant No.1 same villager also supported the case of the plaintiff.

11. In this connection the plaintiff filed death certificate of Sayanna under

Ex.A1 corresponding to defendant No.3 that Sayanna was died on 9.7.1999. The plaintiff and defendant No.1 not obtained any succession certificate that they are the only the legal heirs of Sayanna. On the other hand the plaintiff obtained Ex.A10 5 family members certificate issued by Tahasildar, Kothakota mandal dated 6.4.2014 that Chakali Sayanna died on 9.7.1999 leaving behind plaintiff, defendant No.1 as daughters, defendant No.2 as second wife and Govindamma as daughter. So, the plaintiff and defendant No.1 cannot exclude defendant NO.2 and Govindamma as a family members of Sayanna.

12. Defendant No.2 also filed Ex.B7 attested copy of ration card of defendant No.2 wherein the name of defendant No.2 as card holder and wife of

Sayanna having one daughter Govindamma and the same is also supported by Ex.B8 list of pensioners. Even in Ex.b2 pattadar pass book of defendant No.2 in respect of suit schedule property referred as wife of Sayanna. So the concerned departments including the Revenue department recognized defendant No.2 as a wife of Sayanna.

The plaintiff and defendant No.1 never questioned the mutation proceedings to mutate the name of defendant No.2 in respect of the suit property and also not questioned the relationship of defendant No.2 with Sayanna in the suit that defendant nO.2 is not the legally wedded wife of Sayanna. The plaintiff who obtained Ex.A10 which is issued by a competent authority after due enquiry has no other go except to admit the relationship of defendant No.2 with Sayanna as his wife.

13. Under Section 8 of Hindu Succession Act, 1956, general rules of succession in case of males, the property of male dying intestate shall devolve according to the provisions of Chapter I of the Act---

But firstly , the heirs in class I of schedule, no heirss of class II upon the class-II being the relatives specified in class I, class II heirs and no heir of any of any two classes, upon the agnates and no agnate upon the cognates.

14. Since Sayanna died intestate leaving behind the plaintiff and defendant

No.1 as his daughter through Kondamma and defendant No.2 as a second wife and

Govndamma as a daughter and all of them comes under Class-I heirs and they are surviving persons to succeed the estate that is schedule property by them. In this case, defendant No.2 sold the schedule property to defendant no.3 under Ex.A9 sale deed which an admitted one and basing on Ex.A9 sale deed the name of defendant no.3 mutated in revenue in revenue records and also issued pattadar pass books under Ex.B1 in the name of defendant No.3 and also issued mutation proceedings under Ex.B5 and prior to that Ex.B4 proceedings to mutate the name of defendant

No.2 in respect of suit schedule property.

15. There is no dispute with regard to suit property and the same is supported by Exs.A1 to A7 and Exs.B20 to B22 pahanies and also mutation of the name of defendant No.3 being the purchaser of suit property supported by Exs.B9 to

B19. Basing on the Ex.A9 sale deed and revenue record, defendant No.3 is in 6 possession of entire suit property excluding the plaintiff and defendant No.1. So, the fixed court fee paid by the plaintiff claiming joint possession is against the law and the plaintiff has to pay court fee on 3/4th value out of the share value of the plaintiff comes to Rs.2,66,250/-.

16. Since defendant No.2 being surviving widow of Sayanna entitled to one share and her daughter Govindamma also entitled for a share though she is not a party to the suit. Once Govindamma alone sold the property under Ex.A9 sale deed, definitely it must be in the knowledge of Govindamma, as such it can be said that defendant No.2 and Govindamma who are entitled to half share out of the suit property only entitled to sell their half share. But defendant No.2 has no right to sell the half share of both plaintiff and defendant No.1, being the daughters and class-I heirs with Sayanna.

17. Therefore the plaintiff and defendant No.1 are entitled to half share and defendant No.2 and Govindamma together entitled to half share out of the suit property and plaintiff and defendant No.1 has to share the half share equally means the plaintiff is entitled to one share and defendant No.1 is entitled to one share, defendant No.2 and Govindamma are entitled to one share each out of the suit property by metes and bounds. So, the plaintiff is entitled to partition of schedule property into four equal shares and allot one share to plaintiff and one share to defendant No.1 and one share to defendant nO.2 and Govindamma, her daughter.

This issue is answered infavour of the plaintiff to allot one share to plaintiff out of schedule property.

18. Issue No.1:

The common case of the both plaintiff and defendant No.1 that defendant 2 has no right to sell the suit property and she is the third party to the suit property, but defendant No.2 illegally mutated her name in the revenue records, basing on it, defendant No.2 sold the suit property in Ex.A9 infavour of defendant No.3 without the knowledge of the plaintiff and defendant No.1 and detrimental to their legal rights. Even defendant No.2 not included her daughter Govindamma as a party to the sale deed. There is no law to exclude the share holders of property while selling the property unless the co-parceners voluntarily relinquished their rights. Admittedly

Ex.A9 is dated 21.12.2009 and the suit is filed in the year 2014 after five years. The plaintiff taken a plea that in the year 2013, she demanded for partition and filed the suit. Only from the date of the knowledge of Ex.A9, the period of limitatioon starts to file the suit for cancellation of any document from the date of knowledge and within 3 years under Article 59 of Indian Limitation Act. Since the plaintiff is not a party to Ex.A9, the period of limitation starts from the knowledge of sale deed that the plaintiff for the first time came to know the execution of sale deed in the year 7 2013. If the plaintiff and defendant No.1 are parties to Ex.A9 then they were totally estopped from claiming any share even being legal heirs of Sayanna Defendant No.2 at the most entitled to sell her share and also share of her daughter Govindamma to meet the family necessities or to discharge any obligations, but no right to sell the two shares of plaintiff and defendant No.1 . D2 as DW1 admitted in her evidence that plaintiff and D1 has no knowledge about the sale deed made by her and she sold property to defendant No.3 without having any right over the property. So, the sale deed executed by defendant No.2, in favour of defendant No.3 for entire suit property not sustainable in the eye of law. Though Ex.A9 is an admitted document by defendant No.2 and defendant No.3, defendant nO.3 was examined as an attestor of sale deed.

19. The learned counsel for the defendant No.3 referred to a judgment reported in 2017 (3) Supreme Court Cases 702 between Executive offidcer,

Arulmigu chokkanatha Swamy Koil Trust, Virudhunagar versus Chandran

and others , wherein the Honourable Supreme Court observed that one of the issues framed is, as to whether the suit is bad for non-joinder of necessary party.

The said issue was answered against the plaintiff and it was held that the suit is bad for non joinder of Janaki Ammal a necessary party, whose name was recorded against Sy.No.188/2. Without adverting to the said findings of the trial court and the appellate court, the High court has erroneously decreed the suit of the plaintiff.

There is one more reason due to which the judgment and the decree of High Court cannot be sustained. The trial court in its judgment has categorically recorded findings that defendant is in possession of suit property. In para No.10 the following finding have been recorded by trial court. From the oral depositions and exhibits produced on behalf of defendant No.1, it is clearly found that suit property belonged to defendant No.1 Arulmigu Chokkanatha Swamy temple and it is in its possession for a long time continuously.

20. Admittedly there is no I ssue framed whether the suit is bad for non joinder of necessary parties that Govindamma is a necessary party. Even

Govindamma daughter of defendant nO.2 come forward to join as a party in the array of defendants through defendant No.2 her mother contested the suit.

Therefore it can be said that there is a collussion between defendant No.2 and her daughter Govindamma on the sole ground that Govindamma also enjoyed the sale proceeds received by her mother defendant No.2. Accoridngly the facts of the reported decision are not applicable to the case on hand.

21. Since the plaintiff and defendant no.1 are not parties to Ex.A9 and defendant no.2 has no right to sell entire property including the shares of the plaintiff and defendant no.1, the sale deed executed by defendant No.2 in favour of 8 defendant No.3 in respect of shares of plaintiff and defendant No.1 is not sustainable and liable to be cancelled in respect of shares of plaintiff and defendant No.1. So, the issue is answered that the sale deed under Ex.A9 is liable to be cancelled in respect of shares of plaintiff and defendant No.1 out of the suit schedule property and the sale deed in respect of shares of defendant No.2 and her daughter

Govindamma holds good.

22. Issue No.3:

The court framed the issue in respect of procedure to be followed in final decree basing on preliminary decree passed by the court, after appointment of advocate commissioner to divide the property and allot the shares of parties to the suit. There is no need to answer this issue about the procedure to be followed in the final decree proceedings.

23. Issue No.4:

In the result the suit is decreed preliminarily to partition the property into four equal shares and allot one share each to plaintiff and defendant No.1 and one share each to defendant No.2 and Govindamma by metes and bounds and good and bad by appointing an advocate commissioner and cancel the sale deed with document No.12622/2009 dated 21.12.2009 in respect of shares of the plaintiff and defendant No.1. But the sale deed in respect of shares of defendant No.2 and

Govindamma holds good and enforceable against defendant No.2 and Govindamma only. The plaintiff is directed to pay court fee on the 3/4th share value of the plaintiff

Under Section 34(1) of A.P.Court Fees and Suit Valuation Act, 1956 within two weeks from the date of the judgment.

In view of the relationship between the parties, I direct each party to bear their own costs.

Dictated to the Stenographer Grade-I (of I.Addl.District Court,

Mahabubnagar )transcribed and typed by her, corrected and pronounced by me in the open court on this the 26th day of June, 2020.

Senior Civil Judge,

Wanaparthy.

9

APPENDIX OF EVIDENCE

Witnesses examined for Plaintiff: Defendants: PW1 Chakali Sridevi DW1Chakali Balamma PW2Chakali Mogulaiah DW2Karnati Videhi PW3 Chakali Shanthanna DW3 Telugu Kondanna Exhibits marked for Plaintiff: Ex.A1 is Death certificate issued by MRO, Kothakota dt.14.7.1999 Ex.A2 is CC of pahani for the year 1999-2000 Ex.A3 is CC of pahani for the year 2000-2001 Ex.A4 is CC of pahani for the year 2004-2005 Ex.A5 is CC of pahani for the year 2009-2010 Ex.A6 is CC of pahani for the year 2010-2011 Ex.A7 is CC of ROR Ex.A8 is CC of pahani for the year 2014-2015 Ex.A9 is CC of registered sale deed doc.No.12622/2009 Ex.A10 is Family members certificate dt.6.4.2016.

Defendants: Ex.B1 is pattadar pass book of D3 ExB2 is pattadar pass book of D2 Ex.B3 is death certificate of Chakali Sayanna Ex.B4 is ROR proceedings No.A/647/2009 Ex.B5 is Proceedintgs No.F/133/2010 dt.22.2.2010 Ex.B6 isAPGVB statement of account for A/c.No.73003826597 Ex.B7 is Attested copy of Ration card of D2 Ex.B8 is Atested copy of pension disbursement list Ex.B9 is 0B namoona (ROR) dt.15.12.2014 in the name of D3 Ex.B10 Adangal pahani for the fasli 1421 for Sy.No.573/A1 Ex.B11 is Adangal pahani for the Fasli 1422 Ex.B12 ADangal pahani for the Fasli 1423 for Sy.No.573/A1 Ex.B13 Adangal pahani for the fasli 1424 Ex.B14 is Adangal pahani for the Fasli 1421 Ex.B15 is Adangal pahani for the Fasli 1422 Ex.B16 is Adangal pahani for the Fasli 1423 for Sy. No.512/A1 Ex.B17 is Adangal pahani for the FAsli 1424 for Sy.No.512/A1 Ex.B18 is Adangal pahani for the Fasli 1420 for Sy.No.512/A1 Ex.B19 is Adangal pahani for the fasli 1420 for Sy.No.512/A1 Ex.B20 pahani for the year 2009-2010 Ex.B21 is pahani for the year 1999-2000 Ex.B22 is pahani for the year 2004-2005.

Senior Civil Judge,

Wanaparthy.

1 :: FAIR COPY ::

IN THE COURT OF THE SENIOR CIVIL JUDGE AT WANAPARTHY.

Tuesday, the 9th day of June, 2020.

PRESENT:- Smt M.Vani,

Senior Civil Judge,

Wanaparthy.

O.S.No.99 of 2017

Between:- 1.Syed Shafi S/o Syed Subhan age 45 yrs, Occ: Photographer R/o Achampet village and Mandal.

2.Syed Shakeer S/o Syed Subhan age 39 yrs, Occ:Photographer R/o Achampet village and Mandal.

3.Smt Anees Fathima D/o Syed Subhan W/o Md.Shaboddin age 34 yrs, R/o Pebbair village and Mandal.

…Plaintiffs.

And

Syed Md.Rafi S/o Syed Suban age 48 yrs, Occ: Photographer R/o H.No.25- 54, Gandhi Nagar, Wanaparthy proper and Mandal.

…Defendant.

Claim:- Suit for partition and separate possession to an extent of 1/4th share each to the plaintiffs with metes and bounds in respect of suit schedule properties shown under A and B schedule property and also to grant mesne profits @Rs.3000/- per month for the past one year arrived at Rs.36,000/- and also to grant future mesne profits over the A suit schedule property situated within the limits of Wanaparthy proper.

***

This suit is coming before me for final hearing on 8.6.2020 through video conference by Sri Md.Niranja Pasha, Advocate representing for the plaintiffs and of Sri K.Seshibushan, Advocate representing for the defendant and upon perusing the material papers on record and having stood over for consideration till this day, this court delivered the following:

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J U D G M E N T

The plaintiffs filed this suit for partition of A and B schedule properties into four equal shares and allot 1/4th share each to the plaintiffs

No.1 to 3 by metes and bounds by appointing a commissioner and mesne profits @ Rs.3,000/- from December,2016 to November, 2017 and future mesne profits.

2. The case of the plaintiffs is that the plaintiffs No.1 and 2 and the defendant are brothers and third plaintiff is their sister. One Syed

Suban was the father of the plaintiffs and defendant and was the owner of

A schedule property house bearing no.25-54 situated within the limits of

Wanaparthy town, he died on 4.5.2011. Smt B.Pasha was the mother of plaintiffs and defendant and she purchased B schedule property on 13.1.1996, she also died on 20.1.1999. As such the plaintiffs and defendant succeeded the property as legal heir and all of them are residing in A schedule property. The plaintiff No.1 and 2 are residing at Pebbair by giving their share for rent and defendant used to collect rent towards their share. The plaintiffs agreed to give A schedule property to defendant for rent @Rs.3,000/- per month, accordingly the defendant paid the rent to the plaintiffs till December, 2016, thereafter not paying the rent. Knowing the illegal intention of defendant, the plaintiffs demanded the defendant for partition of properties on 5.12.2017, but he denied the partition. As such the suit is filed for partition.

3. The defendant in his written statement admitted the relationship between them and also admitted the properties are of their parents. The plaintiffs No.1 and 2 are residing at Achampet. The defendant denied that the plaintiffs gave A schedule property to defendant for rent @Rs.3,000/- per month and paid rents till December, 2016 and not paid later, refused to partition of the properties on the demand made by the plaintiffs. It is the positive case of the defendant that the plaintiffs and defendant are having joint and ancestral properties at Achampet and

Wanaparthy. The parents of the plaintiffs and the defendant gifted the schedule properties to this defendant and he is in possession and 3 enjoyment of properties. The plaintiffs not included the properties at

Achampet including the photo studio shop established by joint family property. The plaintiffs are not in joint possession and a fixed court fee paid under section 34(2) of A.P.C.F and S.V.Act is not maintainable. There is no cause of action to file the suit and prayed to dismiss the suit.

4. Basing on the above pleadings in the plaint and written statement this court framed the following issues:

1.Whether the plaintiff Nos.1 to 3 are entitled for preliminary decree by allotting 1/4th share each in respect of A and B schedule suit properties with metes and bounds and thereafter for final decree with appointment of the commissioner?

2.Wheteher the plaintiffs are entitled for getting arrears of mesne profits of Rs.36,000/-towards the monthly rent at Rs.3,000/- from the month of December, 2016 to November, 2017 from the defendant with future mesne profits as prayed for?

3.To what relief?

5. On behalf of plaintiffs PWs 1 to 3 are examined and Exs.A1 to

A5 documents are marked. No witnesses are examined and no documents are marked on behalf of the defendant’s side.

6. Heard arguments on both sides through video conference.

7. Issue No.1:-

The relationship between the parties is not in dispute that the plaintiffs No.1 and 2 and the defendant are the brothers and third plaintiff is their sister. The father of the plaintiffs and defendant was the owner of A schedule property and mother of the parties was the 4 owner of B schedule property and they died leaving behind the plaintiff and defendant as their legal heirs.

8. The defendant taken a plea that his parents gifted the schedule properties in his favour excluding and ignoring the plaintiffs. Under

Mohammadan Law oral gift is permissible and maintainable unlike Hindus their gift must be in a written document and compulsorily registerable under Transfer of Property Act. So the defendant has to prove the oral gift by examining himself as a witness and any witnesses who are present at that time. But the defendant not chosen to examine himself as a witness.

9. The first plaintiff examined himself as Pw1 and second plaintiff examined himself as Pw2 and one third party examined as Pw3. The documents under EXs.A1 to A5 proved that A and B schedule properties are the properties of the parents of the parties to the suit. The plaintiff pleaded in the plaint that the tenants vacated the A schedule property given to the defendant for rent. Pw1 during his cross examination admitted that A schedule property given to one Mahamood for rent in the month of November, 2016 for Rs.3,000/- per month and now the defendant is residing in A schedule property. Pw2 also supported the stand of Pw1. Pw3 claimed to be the neighbour of the ‘A’ schedule property supported the case of the plaintiffs that it is the joint property of the plaintiffs and defendant.

10. Admittedly the plaintiffs No.1 and 2 are residing at Achampet for their job, whereas the defendant is residing at Wanaparthy. Since A schedule property is the residential house and in the absence of Pws 1 and 2, the defendant alone residing in the said house being a share holder. As such the defendant has no exclusive right to claim both the properties under oral gift. The defendant not assigned any reason why his parents excluded the plaintiffs from oral gift. It is not the case of the defendant that he served his parents during their life time till death. So in the absence of any testament left by the parents of the plaintiffs and defendant, the parties to the suit being the children are entitled to succeed 5 the suit property as per the Mohammadan Law. Since the defendant failed to prove the oral gift, the plaintiffs and the defendant are entitled to partition of the suit schedule properties. So the plaintiffs No.1 to 3 and the defendant are entitled to 1/4th share each in both the properties. Thus issue No.1 is answered accordingly.

11. Issue No.2:

The plaintiffs claiming mesne profits on the ground that they gave A schedule property for rent @Rs.3000/- per month to the defendant and he gave rents for some time and committed default. Admittedly there is no document to prove the rent. The defendant being the share holder entitled to stay in the A schedule property, if there are sufficient rooms in the house. Since the plaintiffs No.1 and 2 are staying at Achampet and the third plaintiff is staying at Pebbair, the defendant staying at Wanaparthy and if the defendant enjoying entire ‘A’ schedule property, it is deemed that the defendant enjoying the A schedule property with the consent of the plaintiffs. As such the question of mesne profits as claimed and future mesne profits does not arise. So the issue No.2 is answered that the plaintiffs are not entitled to mesne profits.

12. Issue No.3:

In the result the suit is decreed preliminary to partition A and B schedule properties and allot 1/4th share each to the plaintiffs No.1 to 3 and the defendant by metes and bounds and good and bad by appointing an advocate commissioner. Inview of the relationship between the parties,

I direct the parties to the suit to bear their own costs.

Dictated to the Stenographer Grade-I, transcribed and typed by her,

corrected and pronounced by me in the open court on this the 9th day of

June, 2020.

Senior Civil Judge,

Wanaparthy.

6

Appendix of evidence

Witnesses examined for

Plaintiffs: Defendant:

PW1Syed Shafi None.

PW2Syed Shakeel

Pw3S.K.Chand Pasha

Exhibits marked for

Plaintiffs:

Ex.A1 is House ownership certificate dt.7.10.2003

Ex.A2 is House tax receipt dt.7.12.2017

Ex.A3 is Property tax demand notice for the year 20172018 for A schedule property.

Ex.A4 is Certified copy of registered sale deed dt.13.5.1996

Ex.A5 is Encumbrance certificate.

Defendant :Nil.

Senior Civil Judge,

Wanaparthy.