IN THE COURT OF VII ADDL. DISTRICT & SESSIONS JUDGE
VIJAYAWADA.
Present: Sri M.Venkata Ramana , VII Addl. District & Sessions Judge
Monday, this the 22nd day of June, 2020
O.S.No.590/2014
Between:
1.Kilaru Padmavathi w/o Sivarama Krishna, 35 Years, D.No.861, Maseed Street, Penamaluru Village and Mandal, Krishna District.
2.Kilaru Gayathri D/o Sivarama Krishna, 15 Years, D.No.861, Maseed Street, Penamaluru Village and Mandal, Krishna District.
3.Kilaru Dhanakoti s/o Sivarama Krishna, 14 Years, D.No.861, Maseed Street, Penamaluru Village and Mandal, Krishna District.
[Plaintiff 2 & 3 is minors being that the plaintiff No.1 is natural guardian of Plaintiff Nos.2 & 3] AND … Plaintiffs 1.Kilaru Srikrishnamma w/o late Radhakrishna Murthy, 68 Years, D.No.4 127, Penamaluru Village and Mandal, Krishna District.
2.Kilaru Sivanageswara Rao, s/o late Radhakrishna Murthy, 55 Years, D.No.137/3, Raghavendra Colony, Firjaguda, Uppal, Ghatkesar Mandal, Hyderabad, R.R.District, Telangana State.
3.Kilaru Padmakara Rao s/o late Radhakrishna Murthy, 48 Years, D.No.4 126, Penamaluru Village and Mandal, Krishna District.
4.Jampala Durga Bhavani, w/o Uma Maheswararao, 45 Years, Side by the Paupu Yard, Duggirala Village & Mandal, Guntur District.
5. Kilaru Gopala Rao s/o late late Bulli Kotaiah, 70 Years, Radham Center, Kolakaluru Village, Duggirala Mandal, Guntur District.
6. Kilaru Surendra s/o Gopalarao, 48 Years, Radham center, Kolakaluru village, Duggirala Mandal, Guntur District.
7.Kilaru Sridhar, s/o Gopalarao 45 Years, Radham center, Kolakaluru village, Duggirala Mandal, Guntur District.
8.Kilaru Srihari Rao, s/o late Bulli Kotaiah, 60 Years, D.No.849, Penamaluru Village and Mandal, Krishna District.
2 9.Kilaru Sivarama Krishna, s/o Srihari Rao, 40 Years, D.No.861, Penamaluru Village and Mandal, Krishna District.
10.Jasthi Swarnalatha, w/o Jasthi Praad, 35 Years, D.No. 934, Raghavendra Apartments, Srinivasanagar, Poranki Village, Penamaluru Mandal, Krishna District.
11.Kilaru Ramprasad s/o late Bulli Kotaiah, 55 Years, Venugopala Swamy Temple back side, Penamaluru Village and Mandal, Krishna District.
12.Kilaru Kiran Kumar, s/o Ramprasad, 35 Years, 3rd floor, Sai Balaju Apartments, West Ibraheempatnam village, Ibraheempatnam Mandal, Krishna District.
...Defendants
This Original Suit is coming before me for final hearing on 2.3.2020 in the presence of Sri G.V.R.K.Prasad Advocate for the Plaintiffs; and of Sri B.Kotireddy advocate for D3 & D11; and of defendants, 1,2,4 to 10 and 12 exparte; and the matter having stood over till this day for consideration this court delivered the following:
J U D G M E N T
This suit is filed for partition of the suit schedule properties.
2.The gist of the contents of the plaint is as follows:
The plaintiffs contended that the suit schedule property is ancestral property of plaintiffs and defendants. Originally it belongs to one
Kilaru Bulli Kotaiah s/o Venkatappaiah and the plaintiffs and the defendants are relations to each other. It is nextly contended that Kilaru Bulli Kotaiah died in the year 1979 and his wife Kilaru Annapurnamma died in the year 2000 and both of them died intestate leaving their four sons namely Kilaru
Radhakrishnamurthy, Kilaru Gopalarao, Kilaru Sriharirao and Kilauru
Ramprasad. D1 is wife and defendants 2,3 and 4 are children of late
Radhakrishnamurthy. D6 and D7 are children of D5. D9 and D10 are children of D8. D12 is son of D11. All the plaintiffs and defendants are legal heirs of Kilaru Bulli Kotaiah.
3
It is nextly contended that after death of Kilaru Bulli Kotaiah his four sons got the suit schedule property orally divided into 4 equal shares and they lived along with their families in individual shares. But no registered document was entered into by them. The suit schedule property is described as schedules 1 and 2 and plaintiffs and defendants are coowners of the suit schedule property and they are jointly enjoying the same with absolute rights.
It is nextly contended that after the marriage, 1st plaintiff is residing along with her children [plaintiffs 2 and 3] and her husband [D9]. It is nextly contended that 1st plaintiff approached the defendants along with her husband for partition of the suit schedule property but the defendants are not cooperating for the same. The first plaintiff approached the elders and relatives for division of the property into 4 equal shares but the defendants bluntly refused. It is nextly contended that the plaintiffs and defendants are legal heirs and they have joint rights over the property. It is further contended that the plaintiffs are entitled to seek partition of the suit schedule property into equal shares along with defendants. As such it is prayed to pass the decree.
3.Defendants 1,2,4 to 10 and D12 remained exparte. D3 and D11 filed joint written statement. D3 and D11 denied all material contentions and allegations made by the plaintiffs. Apart from denying all contentions of the plaint, D3 and D11 put forth their positive contentions which are as follows:
They mainly contended that this suit is filed at the instance of D8 and
D9 targeting D1 to D3 and D11 out of frustration as D8 and D9 finally lost legal battle started by D11 who filed O.S.1395/02 for specific performance of contract on the basis of an agreement of sale dated 17.5.1986 executed by D8 and D9 on the file of I Addl.Junior Civil Judge court, Vijayawada and said suit 4 was decreed in his favour. D8 and D9 preferred appeal in A.S.112/2009 against decree passed in said suit on the file of XIII Addl. District court,
Vijayawada and they have lost the same in favour of D11 on 7.10.2014. It is nextly contended that the suit is bad for non joinder of necessary parties as the daughters [Sic daughter] of Kilaru Bulli Kotaiah are not impleaded as parties to the suit. On this ground also the suit is liable to be dismissed. It is nextly contended that rights of D8 and D9 were determined in
O.S.1395/2002 and as the plaintiffs are claiming right through D9 the
judgment in O.S.1395/2002 binds the plaintiffs also. As such the suit is hit by Resjudicata. It is nextly contended as D9 is alive the 1st plaintiff cannot claim over the suit schedule property. It is nextly contended that D8 filed
O.S.1061/2002 on the file of Principal Junior Civil Judge court, Vijayawada
for partition of the properties shown in the present suit against D5,D11 and
K.Radhakrishnamurthy claiming 1/4 share in the suit schedule property alleging that there was no partition of house property and hayrick yard and admitting that the earlier partition was confined to agricultural lands only.
Those properties are subject matter of this present suit.
It is nextly contended that O.S.1061/02 was dismissed on merits holding that there was partition in the year 1977 among late K.Bulli Kotaiah and his 4 sons and in said partition all the family properties including the present suit schedule properties had been divided among them. No appeal was preferred against judgment and decree in O.S.1061/02 and judgment in said suit binds the plaintiffs who are claiming rights through D8 and D9 who are father and son to each other. So the present suit is hit by doctrine of Res judicate in view of the judgment passed in O.S.1061/02. It is nextly contended that the oral partition is valid in the eye of law and during the life 5 time of Bulli Kotaiah, the ancestral properties such as lands house property, cattle shed and hayrick yard were orally divided by metes and bounds in
February, 1977 and the partition list was prepared and signed by all share holders on 30.3.1977 evidencing earlier partition.
It is nextly contended that in said partition each son of Bulli
Kotaiah except D11 got 8 cents each of land in item No.1 of the suit schedule property and D8 got 4 cent land and the house therein covered by item No.2 of the suit schedule property was taken by Bulli Kotaiah and his wife towards their share. This partition was acted upon by the father and his sons [Sic son]. It is nextly contended that in the site allotted to father of D3 he constructed building. After death of K.Radhakrishna his legal heirs entered into a partition deed dated 19.11.2007 and in said partition, the property in item No.1 allotted to Radhakrishna was allotted to D3 and D8 and D5 are also parties to said partition deed. But D11 is not party to it. It is nextly contended that D3 has been paying house taxes to Gram panchayat ever since. D9 signed as second attestor of said partition deed. It is nextly contended that old thatched house allotted to D11 and his father was removed and building was constructed in the year 1994 by D11 with his own money. D8 and D9 sold half of the site allotted to D8 under agreement of sale
dated 17.5.1986 to D11 and received entire sale consideration and delivered
possession of the same to D11. Similarly D8 and D9sold away the plots of site in an extent of 4 cent to D5 under another agreement of sale, received sale consideration and delivered possession of the same to D5. It is nextly contended that when D8 and D9 failed to execute sale deed D11 filed
O.S.1395/02 on the file of I Addl. Junior Civil Judge Court Vijayawada and
said court executed sale deed dated 21.11.2009 on behalf of D8 and D9 in 6 favour of D11. The site in an extent of 8 cents are fell to the share of D3 is shown as part of the item No.1 of the suit schedule property.
It is nextly contended that Kilaru Bulli Kotaiah in sound and disposing state of mind executed a Will dated 29.7.1979 bequeathing his share of 4 cent land to his wife and subsequently he died. K.Annapurnamma executed a Will dated 15.11.1992 bequeathing the same land [4 cent land] to
D11 and she died on 22.10.2000. As such D11 became owner of the item
No.2 of the suit schedule properties. These Wills were filed in O.S.1061/02 and the same were marked as Exs.B1 and B2. Thus the plaintiffs have no right or title in the suit schedule property and there is no cause of action for the plaintiffs to file the present suit. It is nextly contended that the executions of the above referred two Wills were never questioned by D8 in
O.S.1061/02 and the Prl.Junior Civil Judge gave finding to the effect that
Wills are genuine documents and duly proved. This finding was not challenged by D8. Thus the partition of the suit schedule property was believed by the competent court in O.S.1061/02. It is nextly contended that plaintiffs have no any joint rights over the property. It is further contended that D3 has been in exclusive possession of 8 cent land and building therein in item No.1 of the suit schedule property and he has been paying taxes due to Gram panchayat since the year 2011.
It is nextly contended that in the year 1992
K.Radhakrishnamurthy removed the thatched house and constructed the building therein. D3 after death of his father constructed first floor thereon and since the year 1992 he has been paying taxes. Similarly D11 has been in exclusive possession of item No.2 of the suit schedule property and D11 has been in exclusive possession of 4 cent land in item No.1 of the suit schedule 7 property. It is nextly contended that 1st plaintiff never approached the defendants for partition of the property. D3 and D11 further denied the contention of plaintiffs that the plaintiffs and defendants have been in joint possession and enjoyment of the suit schedule property. It is further contended that the court fee paid by plaintiffs is not at all correct. It is prayed to dismiss the suit.
4.Basing on the pleadings of both sides, this court framed the following issues:
1] Whether the plaintiffs are entitled for partition of the plaint schedule property as prayed for ?
2] To what relief?
5.To prove the claim of the plaintiffs, Pw.1 is examined and Exs.A1 to A4 are marked. On behalf of defendants, Dws.1 & 2 are examined and
Exs.B1 to 14 are marked.
6.Pw.1 filed chief examination affidavit wherein she stated that she is 1st plaintiff and natural guardian of plaintiffs 2 & 3. She nextly stated that the plaintiffs and defendants are interrelated to each other and they are the legal heirs of late Kilaru Bulli Kotaiah who died in the year 1979. It is nextly stated that the suit schedule property belongs to K.Bulli Kotaiah and he died intestate leaving his 4 sons namely Kilaru Radhakrishnamurthy, Kilaru
Gopalarao, Kilaru Sriharirao and Kilaru Ramprasad as his heirs, D1 is wife and defendants 2,3 and 4 are children of late Radhakrishnamurthy. D6 and
D7 are children of D5. D9 and D10 are children of D8 and D12 is son of D11.
She further stated that after death of Kilaru Bulli Kotaiah, his four sons orally divided the suit schedule property into four equal shares but they have not entered into registered partition deed. It is nextly stated that the plaintiffs 8 and defendants are coowners of the suit schedule property and they are enjoying the same with absolute rights. She further stated that after her marriage herself, her husband and her children are residing separately. She nextly stated that herself and her husband approached the defendants personally through elders and relatives and asked them for division of the property but they refused to cooperate for partition. She further stated that the plaintiffs and defendants are legal heirs of K.Bulli Kotaiah and they are in joint possession and enjoyment. She further stated that the plaintiffs are entitled for partition of suit schedule properties and it is prayed to pass the decree.
7.Dw.1 filed chief examination affidavit. He stated that he is D11 in the suit and D3 is one of the sons of K.Radhakrishnamurthy. He nextly stated that his father K.Bulli Kotaiah died about 35 years back and he had 4 sons namely Radhakrishnamurthy, Gopalarao, Sriharirao, this witness and 5 daughters and namely Satyavathi, Hymavathi, Nagamani, Manemma and
Vijayalakshmi. He further stated that Manemma and Vijayalakshmi died leaving their husbands and children behind them. His sisters and legal heirs of deceased sisters are not shown in the suit. He nextly stated about oral partition of the properties which took place among K.Bulli Kotaiah and his four sons in the year 1977 and falling of different properties towards shares of
K.Bulli Kotaiah and his sons. He further stated that his father executed a
Will dated 29.7.1979 bequeathing his share to mother of this witness and he died in the year 1982. He nextly stated that his mother executed a Will dated 15.11.1992 in favour of this witness and she died on 22.10.2000. As such he became absolute owner of the property which fell into his share and his father i.e item No.2 of the suit schedule properties. He further stated about 9 construction of building in the site fell to his share. He nextly stated that in item No.1 of the suit schedule property his elder brother
Radhakrishnamurthy constructed building with a ground floor in the year 1993 and subsequently D3 constructed first floor over the same. He nextly stated that his brother and Sriharirao[D8] and the son of D8 Siva
Ramakrishna[D9] divided their site in an extent of 8 cents out of item No.1 of the suit schedule property into two parts and said Sriharirao sold one such share to him under possessory agreement of sale dated 17.5.1986 executed by D8 and D9. He nextly stated that Sriharirao and Sivaramakrishna sold other part of property to Gopalarao under another agreement of sale dated 17.5.1986. He nextly stated that when D8 and D9 failed to execute registered sale deed he filed O.S.1395/02 on the file of I Addl. Junior Civil Judge Court,
Vijayawada and said suit was decreed in his favour.
He further stated about filing of A.S.112/09 by D8 and D9, dismissal of said appeal by III Addl District Court, Vijayawada and execution of sale deed by I Addl. Junior Civil Judge court, Vijayawada in his favour. He further stated about filing of O.S.1061/02 by D8 for partition of the property dismissal of said suit, observations made by the court in said suit. He further stated that the judgment and decree in O.S.1061/02 became final. He nextly stated that legal heirs of K.Radhakrishnamurhty, D1 to D4, his brothers
Gopalarao and Sriharirao entered into partition deed dated 19.11.2007 dividing item No.1 of the suit schedule properties of present suit without touching item No.2 of the suit schedule properties. He nextly stated that as he became absolute owner of the item No.2 of the suit schedule property the same was not shown in partition deed dated 19.11.2007. He nextly stated that said partition deed was executed at the instance of Gopalarao, Sriharirao 10 [D5 and D8] and D1 to D4 also accepted their proposal for execution of said partition deed. He further stated that D9 attested the partition deed dated 19.11.2007. He nextly stated that when the son of this witness [D12] demanded partition of his properties this witness entered into partition deed with his son and in said partition second item of the suit schedule property fell to the share of this witness and land fell to the share of his son. Thus earlier oral partition was acted upon. He further stated that D3 and his son sold site in an extent of 88.4 square yards with specific boundaries out of share of D3 in item No.1 of the suit schedule properties to one Veeranki
Eswari under registered sale deed dated 14.5.2009 and subsequently said
Veeranki Eswari sold the same to one P.Vijayalakshmi under registered sale deed dated 24.2.2014.
He further stated that his brother Gopalarao sold away his site to
Muslims under registered sale deed and they are now in possession of the part of item No.1, but they are not impleaded in the suit. It is further stated that 1st plaintiff knows the possession of the part of item No.1 by third parties and she also filed O.S.648/2015 on the file of IV Addl.Junior Civil Judge court, Vijayawada for injunction in respect of item No.1 of the suit schedule property against one Syed Razia Begum and another said suit was dismissed.
D8 took 2 cents of land from Gopalarao on compromise and D8 is also sold away the same to sister of this witness Nagamani. He nextly stated that the plaintiffs are claiming right over the suit schedule property through D9
Sivaramakrishna who is the husband of 1st plaintiff and D9 claims right through D8. He nextly stated that in view of the oral partition which took place long back and in view of the judgments passed in O.S.1061/02 and
O.S.1395/02 and in view of the oral partition was acted upon the plaintiffs
11 are not at all entitled for decree for partition of the property. He further stated that plaintiffs are not in possession of the properties along with defendants at any point of time. He nextly stated that D8 and D9 instigated 1st plaintiff to file the present suit suppressing the material facts and transaction with a view to harass the defendants.
8.Dw.2 filed chief examination affidavit wherein he stated that he is
D3 in the suit and D11 is his junior paternal uncle. He further stated about oral partition of agriculture land which took place among K.Bulli Kotaiah and his 4 sons in the year 1977 and he was aged about 10 years by the time the oral partition took place. He nextly stated that D11 got 4 cent land and house therein out of item No.2 of the suit schedule property towards his share. He nextly stated that his father, D5 and D8 took 8 cents land each out of item
No.1 of the suit schedule property. He nextly stated about construction of ground floor of building by his father in the site which he got and construction of 1st floor of the building by this witness. He further stated that
D11 removed thatched house in item No.2 of the suit schedule property about 25 years ago, basing on the Wills executed by grand parents and constructed building therein to the knowledge of plaintiffs and other defendants. He further stated that D8 and D9 sold 4 cent land out of site D8 got to D11 and they also sold another 4 cent land to D5 under different agreement of sale in their favour. He nextly stated that he came to know that D11 and D5 filed suits and D5 told this witness that he got the matter compromised with D8 and D11 informed this witness that the court executed sale deed in his favour in respect of site purchased by him from D8 and D9 under agreement of sale.
He further stated that as he was facing hurdles in securing the loans from banks he consulted D5 and D8 and they suggested execution of partition 12 deed in respect of item No.1 of the suit schedule properties. As such the partition deed dated 19.11.2007 was entered into by himself, his brother, his sister, his mother and D5 and D8 in respect of item No.1 of the suit schedule properties after deleting the site in an extent of 4 cents purchased by D11 from D8 and D9.
He further stated that in the partition deed dated 19.11.2007 D9 who is husband of 1st plaintiff and K.Surendrababu put their signatures as attesting and identifying witnesses. He further stated that out of his share in item No.1 of the suit schedule properties himself and his son Vamsi Prasad sold away the site in the extent of 88.4 square yards to one Veeranki Eswari under sale deed dated 14.5.2009. He further stated that his junior paternal uncle Gopalarao and his sons sold away his site to one Bandi Nagamani,
Raziya Begum under registered sale deed. He further stated that the oral partition which took place in the year 1977 and registered partition deed
dated 19.11.2007 were acted upon by all the parties. He further stated that
he has been in exclusive possession and enjoyment of the site allotted to his father in the partition which took place in the year 1977. He further stated that D9 mischievously and collusively set up the plaintiffs and got this suit filed with an intention to extract money from the defendants. He further stated that the plaintiffs have no right to seek partition of the suit schedule properties which were already partitioned among sons of Kilaru Bulli Kotaiah and it is prayed to dismiss the suit.
9.After considering the entire material on record, consisting of pleadings of both sides, oral evidence and documentary evidence adduced by both sides I am of the view there is necessity for framing of two Addl. Issues.
As such the two additional issues are framed is as follows: 13 1] Whether the suit is bad for non joinder of necessary parties?
2] Whether there was earlier partition as pleaded by D3 and D11?
10.After taking the entire material on record into consideration, I am of the view the plaintiffs as well as defendants are aware of the facts which required this court to frame Addl. Issues. As such the court is of opinion that there is no need of giving any opportunity to other side for adducing
additional evidence or advance any further arguments. Therefore the court
intends to decide both the Addl. issues as if they are originally framed issues.
Issue No.1 and Addl. Issues 1 and 2:
11.Heard counsel for plaintiffs, D3 and D11. The counsel for plaintiffs vehemently contended that the oral evidence of Pw.1 and documentary evidence Exs.A1 to A4 sufficiently and categorically proved the claim of the plaintiffs. He further contended that defendants 3 and 11 failed to establish earlier partition. It is nextly contended that as the suit schedule property originally belonged to late Bulli Kotaiah, the plaintiffs are entitled for their share in the suit schedule property. The counsel for D3 and D11 filed written arguments wherein he vehemently opposed the contention of counsel for plaintiffs. The counsel for D3 and D11 mainly contended that there are several lacunae infirmities and discrepancies in the case of plaintiffs and in the evidence of Pw.1. He nextly contended that oral evidence of Dws.1 and 2 and documentary evidence adduced by D3 and D11 sufficiently proved the earlier partition. He nextly contended that several admissions made by Pw.1 support the version of defendants 3 and 11. He nextly contended that the suit is liable to be dismissed. After thorough and careful examination of the entire material on record and after considering the arguments of both sides, I am of the view there is no sufficient force in the contention of counsel for plaintiffs.
14
As rightly contended by counsel for defendants 3 and 11 there are several grave and glaring lacunae discrepancies and infirmities in the case of the plaintiffs and in the evidence of Pw.1. Since the beginning it is the case of the defendants 3 and 11 that late Bulli Kotaiah has got daughters and they are not impleaded as parties to the suit. As such the suit is bad for non joinder of necessary parties. Though the defendants in the written statement itself took the plea that the suit is bad for non joinder of necessary parties, the plaintiffs failed to implead the daughters of Bulli Kotaiah as parties to the suit.
12.Pw.1 in cross examination categorically admitted that she knows that Kilaru Bulli Kotaiah had 5 daughters. She further admitted that out of 5 daughters of Bulli Kotaiah, two daughters passed away. She further admitted that 3 daughters of Bulli Kotiah namely Satyavathi, Hymavati and Nagamani are still alive, but she did not show those three daughters of Bulli Kotaiah as parties to the suit. She admitted that one S.Manemma who is also daughter of Bulli Kotiah passed away leaving behind her daughters and the daughters of S.Manemma are still alive. She also stated that A.Vijayalakshmi is also one of the daughters of Bulli Kotaiah and she also passed away. For the reasons best known to the plaintiffs, living daughters of Bulli Kotaiah, Satyavathi and
Nagamani and legal heirs of S.Manemma and A.Vijayalakshmi are not made parties to the suit, though they are necessary parties. The plaintiffs failed to give any explanation or reasons for non impleading of three leaving daughters of Bulli Kotaiah and legal heirs of S.Manemma and A.Vijayalakshmi. Since it is claim of the plaintiffs that the suit schedule property originally belonged to
Bulli Kotaiah and no partition took place among the sons and daughters of
Bulli Kotaiah, it is bounden duty of plaintiffs to show all the legal heirs of 15
Bulli Kotaiah. But the plaintiffs failed in doing so. As such it can safely be said that the suit is bad for non joinder of necessary parties. Thus I decide
Addl. Issue No.1 against plaintiffs. As rightly contended by counsel for D3 and D11 several admissions made by Pw.1 support the version of D3 and D11 visàvis earlier partition. In the plaint itself the plaintiffs pleaded that an earlier oral partition took place among 4 sons of late Bulli Kotaiah after his death.
13.For better appreciation relevant portion is reproduced in the plaint which is as follows: “After the death of said late Kilaru Bulli Kotaiah, his 4 sons are orally divided the suit schedule property in 4 equal shares and living along with their families in individual shares without any interruptions”.
14.In cross examination also Pw.1 categorically admitted about the pleading of plaintiffs Visavis partition. Pw.1 further admitted that she cannot say the details of suit schedule property in detail and it is her husband [D9] who gave information to the advocate of the plaintiffs regarding details of the suit schedule properties. She also admitted that the house property which fell to the share of D11 is not shown in the suit schedule and
K.Radhakrishnamurthy is husband of D1 and he constructed the building in the site which fell into his share and D3 has got his share in the family partition and D3 constructed 1st floor of the building in said site. She further admitted that she has not issued any notice to D3 not to construct 1st floor of the building since they have no right in the property of D3. She further stated that she does not know whether D5 and D8 sold away their shares to
Syed Razibegum and her relative Khaleelulla. However she admitted that herself and other plaintiffs of the present suit filed O.S.648/15 on the file of 16
IV Addl. Junior Civil Judge, Vijayawada against Syed Razia Begum and
Khaleelulla seeking for permanent injunction against them in respect of property covered by item No.1 of the suit schedule and said suit was dismissed for default. The pleadings of D3 and D11 and evidence of Dw.1 and Dw.2 sufficiently and categorically established the earlier partition.
Though the counsel for plaintiffs cross examined Dw.1 and Dw.2 he has not elicited any grave or glaring discrepancies or infirmities. The oral evidence of
Dw.1 is supported by convincing, cogent and strong documentary evidence.
Ex.B1 is certified copy of judgment in O.S.1061/02 passed by Prl. Junior Civil
Judge, Vijayawada. Said suit was filed by no other than D8 who is father of
D9, grand father of plaintiffs 2 and 3 and father in law of 1st plaintiff herein.
D8 filed said suit for partition of the properties left by late Bulli Kotaiah but said suit was dismissed by Prl.Junior Civil Judge, Vijayawada holding that already partition took place among Bulli Kotaiah and his sons in the year 1977. D8 has not challenged the judgment passed in O.S.1061/02 and said judgment became final. Ex.B2 is certified copy of judgment passed by I Addl.
Junior Civil Judge, Vijayawada in O.S.1395/02.
15. It is case of the defendants 3 and 11 and it is the evidence of
Dw.1 that D8 and D9 executed an agreement of sale in favour D11 in respect of property covered by Ex.B2 and he failed in executing the registered sale deed. It is further case of D3 and D11 that D11 filed O.S.1395/02 against D9 and said suit wad decreed. It is also further case of D3 and D11 that since
D8 and D9 failed to execute registered sale deed the I Addl.Junior Civil Judge court executed registered sale deed under Ex.B6. D8 and D9 preferred appeal against judgment passed in O.S.1395/02 but said appeal was also dismissed.
Pw.1 further admitted that prior to her marriage with D9, D11 constructed 17 building in item No.2 of the suit schedule property. Admittedly, 1st plaintiff is wife of D9 and D8 is father of D9. So long D9 is alive the 1st plaintiff cannot seek for any share in the properties left by late Bulli Kotaiah. The cautious examination of the entire material on record shows that the admissions of
Pw.1, oral evidence and documentary evidence adduced by defendants sufficiently proved that the earlier partition took place in respect of suit schedule properties. Thus I decide 2nd issue and additional issue against plaintiffs. In view of the findings and discussions given in Addl. issues 1 and 2 I hold that the plaintiffs are not at all entitled for partition of the plaint schedule properties as prayed for. Thus I decide original issue against plaintiffs.
16.In the result, suit is dismissed without costs.
Dictated to the Stenographer, transcribed by him, corrected and pronounced
by me in the open court, this the 22nd day of June, 2020.
VII Addl. Dist. & Sessions Judge, Vijayawada.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For Plaintiffs: For Defendants: Pw.1 Kilaru Padmavathi Dw.1 Kilaru Ramprasad Dw.2 Kilaru Padmakara Rao
Documents Marked:
For Plaintiffs:
Ex.A1Partition deed dated 19.11.2007 Ex.A2Gift deed dated 10.1.2008 Ex.A3 Encumbrance certificate dated 18.12.2014 Ex.A4 Encumbrance certificate dated 18.12.2014
For Defendants:
Ex.B1Certified copy of Judgment dated 18.06.2008 in O.S.Nop.1061/2012 on the file of Principal Junior Civil Judge, Vijayawada.
Ex.B2 Certified copy of Judgment dated 21.07.2008 in O.S.No.1395/2002 on the file of I Addl. Junior Civil Judge, Vijayawada. Ex.B3 Certified copy of Judgment dated 07.10.2014 in A.S.No.112/2009 on 18 the file of XIII Addl. District Judge's Court, Vijayawada.
Ex.B4Certified copy partition deed dated 04.04.2002 in between the 11th defendant and his son. Ex.B5Certified copy of the partition deed dated 19.11.2007 in between the defendant NOs.1 to 5 and defendant No.8. Ex.B6certified copy of the sale deed dated 21.11.2009 executed by the I Addl. Junior Civil Judge's Court, Vijayawada on behalf of the defendant Nos.7 and 8 in favour of 11th defendant. Ex.B7Certified copy of sale deed dated 14.05.2009 Ex.B8E.C for the period from 01.01.2001 to 17.04.2019 in respect of site in R.S.No.223 of Penamaluru village. Ex.B9House Tax receipt dated 31.03.2006 standing in the name of Kilaru Radha Krishna Murthy. Ex.B10House Tax receipt dated 22.03.2011 standing in the name of Kilaru Padmakara Rao. Ex.B11House Tax receipt dated 28.02.1984 standing in the name of Kilaru Ram Prasad(D11). Ex.B12House Tax receipt dated 30.03.2010 standing in the name of Kilaru Sirisha. Ex.B13House Tax receipt dated 24.03.2011 standing in the name of Kilaru Sirisha. Ex.B14Certified copy of Gift deed dated 10.01.2008 executed by Kilaru Ram Prasad(D11) in favour of Kilaru Sirisha in respect of 387 Sq.yards in R.S.No.222 of Penamaluru village.
VII ADJ.,
VJA.