Smt N. Rajyalakshmi

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IN THE COURT OF THE SENIOR CIVIL JUDGE AT PUTTUR.

Present : Smt. N.Rajyalakshmi, M.A., B.L.,

Senior Civil Judge, Puttur.

Tuesday, the Nineteenth (19th )day of May , Two thousand and Fifteen.

O.S.No.159 of 2012

1. D.Ramamoorthy

2. D.Bhanumathi

.. PLAINTIFFS.

// VERSUS //

1. The State rep., by its by District Collector, Chittoor.

2. The Revenue Divisional Officer,Chittoor.

3. The Tahsildar,Vijayapuram

.. DEFENDANTS.

This suit coming before me on 01-05-2015 for final disposal in the presence of Sri G.Payani, Advocate for the Plaintiffs and Sri. B.Raveendra, Advocate for defendants , upon hearing the arguments and having stood over for consideration till this date, this Court delivered the following:

J U D G M E N T

This suit is filed by the plaintiffs against the defendants 1 to 3 for declaration of title and permanent injunction.

2) The brief facts of the plaint are that item No.1 of plaint schedule property had been the ancestral property of one Manikya Rathnam Reddy during pre-abolition and post-abolition of estate as per the adangal. Manikya Rathnam Reddy died intestate in the year 1966 and his son Sami Reddy and his son Parandaman Reddy succeeded the estate including item NO.2 of the plaint schedule property. They partitioned the said property on 24-03-1966. A schedule of the partition deed fell to the share of Sami Reddy and B schedule property fell to the share of Parandaman Reddy. They have been in possession and enjoyment of their respective shares. Parandaman Reddy sold an extent of Ac.5.40 cents out of his share to one Venkatachalapathy i.e., item NO.2. First plaintiff purchased part of the property shown in item NO.3 in an extent of Ac. 1.90 cents in S.No. 279/1A out of Item NO.2 from Venkatachalapthy. Second plaintiff also purchased part of item NO.3 in an extent of 0.80 cents in S.No. 279/1B1 out of item NO.2. The plaintiffs are in possession and enjoyment of the item NO.3 of the plaint schedule. Hence the title and possession of plaintiffs over item NO.3 is traced out prior to 1966. at no point of time the suit schedule properties are government lands and government never pointed out their title, never objected the plaintiffs. The 2 plaintiffs have been in possession and enjoyment of the plaint schedule property. On 08-10-2012 the defendants 2 and 3 served a notice to the plaintiffs as the plaintiffs have obtained pattadar pass book and title deed inrespect of item No.3 of the plaint schedule property for the Government land and asked for explanation. Though the plaintiffs gave suitable reply without enquiring into the matter the defendants are arbitrarily proceeding to cancel the pattadar pass book and title deed and are attempting to dispossess the plaintiffs from the suit properties. On 12-11-2012 the 3rd defendant along with his staff came to the suit property and tried to take the possession, however the defendants protested the same but the defendants are still trying to dispossess the plaintiffs from the plaint schedule property. Hence the plaintiffs title and possession is at stakes. Hence the suit.

3) The 3rd defendant filed his written statement and D.1 and 2 adopted the same. The brief facts of the written statement are that originally the land in S.No. 279/1 in an extent of Ac. 12.24 cents is classified as A.W.D., in the fair adangal and village accounts of Pathaarcod village. The fair adangal were prepared in four copies during survey and settlement operations and one copy was kept in Collecterate, one copy at Taluk level and one copy kept at village level. One L.G.Subramanyam Raju who worked as village Revenue Officer of Oldarcod village made unauthorized entries and also made forgery entries for several Government lands for his personal benefits. He made corrections for the land in S.No. 279/1 as it is patta land. The then Tahsildar, Vijayapuram noticed the irregularities in the village accounts of Patharcod and reported to the Collector, Chittoor. The District Collector , Chittoor kept the village Revenue Officer under suspension and subsequently he was also removed from service and he also involved in so many criminal activities due to fabrication of revenue records. Several registered transaction were taken place in respect of the land in S.No. 279/1 of Patharcod village and pattadar pass book and title deeds were also issued to the purchases without verifying the original classification on the lands. The plaintiffs and others partitioned the lands during the year 2010 and applied in issuing of pattadar pass book and title deeds. After knowing the facts about that tampering in fair adangal and village accounts in S.No. 279/1 and also noticed the change of classification from A.W.D., to patta land. A detailed report was submitted to the Revenue Divisional Officer, Chittoor besides canceling the pattadar pass book and title deed issued to them. The villagers of Patharcod were put a complaint to the

Hon'ble Lokayuktha, A.P., stating that the revenue officials were changed the

classification to Governments land to patta land and requested to enquire into the matter and the Hon'ble Lokayuktha directed the Collector, Chittoor to enquire into the matter and to take action and the Collector, Chittoor directed 3 the RDO, Chittoor to submit a detailed report. He also directed the Tahsildar, Vijayapuram to put a criminal case against the vendors and vendees as the transaction of registration of Government land attracts criminal nature. A complaint was lodged before SI of police, Vijayapuram and an FIR was registered in Cr.No. 22/2012. After submission of detailed report the Revenue Divisional Officer, Chittoor after following the due procedure canceled the pattadar pass book and title deeds issued in favour of plaintiffs and communicated the same to the Collector, Chittoor. The District Collector also submitted a detailed report to the Hon'ble Lokayuktha. Lokayuktha directed to finalize the case within 6 months. Mere having pattadar pass book and title deed over the Governments land does not confer any right to the purchasers or vendors. The registrations of Government land also does not confer any right over the government land. The Tahsildar canceled the pattadar pass book and title deed issued to the plaintiffs basing on the forged entries. The plaintiffs suppressed the facts and produced the pattadar pass book and title deed into the Court to mislead the Court. Classification of land was already treated as AWD at the time of survey and settlement. RDO issued after perusing the records and hearing the case confirmed the original classification of the land and canceled the pattdar pass book and title deed of the plaintiffs. The government has every right to enter into the government land. The plaintiffs cannot question the legitimate duties discharging by the government officials. The plaintiffs are not entitle to get permanent injunction against the government. The Court also has no jurisdiction to entertain the suit. The plaintiff never attempted to get proper relief after survey and settlement operations to get cancellation of the classification of the said entires before proper forum. The plaintiffs themselves admitted that they were served with notices for cancellation of pattadar pass book and title deeds. Hence suit is liable to be dismissed.

4) Basing on the pleadings of both parties the following issues are framed:

1. Whether the plaint schedule property ancestral property of plaintiffs?

2. Whether the pattadar pass book and title deeds are canceled ?

3. Whether the plaintiffs are entitle for declaration of title of plaint schedule property?

4. Whether the plaintiffs are in possession of plaint schedule property and they are entitle for permanent inunction ?

5. To what relief?

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5.On behalf of plaintiffs, P.Ws.1 to P.W.5 are examined and Exs. A1 to A8 are marked. On behalf of defendants, D.W.1 is examined and Exs. B.1 to B.5 are marked.

6.Heard both sides.

7.Issue No.1: As per the pleadings of the plaintiffs, the plaint schedule property is originally belong to Manikya Rathnam Reddy and it is is ancestral property. From him his sons succeeded and partitioned the property and the plaintiffs purchased from his grand son. According to the defendants the plaint schedule property is Anandeena waste land but not the patta land and Manikya Rathnam Reddy has no right in the plaint schedule property. The plaintiff depends on a partition deed executed in between son and grand son of Manikya Rathnam Reddy. Ex.A8 is the said partition deed and as per the translation of Ex.A8 the plaint schedule properties are partitioned among Sami Reddy and parandaman Reddy who are the son and grand son of Manikya Rathnam Reddy. As per this partition deed S.No. 279/1, half share in Ac. 12.24 cents i.e., Ac.6.12 ½ cents and S.No. 279/1 half share in Ac. 12.24 cents i.e., Ac.6.12 cents are divided. Moreover no boundaries are also mentioned in the said partition deed with regard to the said property. It is not mean that half share in S.No. 279/1 is to one person and another half share to another person. The divided property in S.No. 279/1 is fell to only one person i.e., Parandaman Reddy. As per the partition deed one got half share in S.No. 279/1 but the other half share of the said Survey Number is not fell to the share of Sami Reddy. That is why half share in S.No. 279/1 is not in view of partition. They have only half property in the said survey number and the said half entire share fell to the share of Parandaman Reddy. That is why the other half share should be there which is not partitioned. The total extent of S.No. 279/1 is in an extent of Ac. 12.24 cents. The boundaries are not mentioned in the said partition. That is why which portion of half share fell to the share of Paranadaman Reddy is not clearly mentioned in the said partition deed. There is no document in favour of Manikya Rathnam Reddy to prove that which half share in S.No. 279/1 is got by Manikya Rathnam Reddy and succeeded by Sami Reddy and parandaman Reddy and partitioned by them. That is why we cannot identify the property partitioned under Ex.A7 whether the plaint schedule property is the same property covered under Ex.A7. It is record of the year 1966. The other records are not there from the year 1966. the documents filed by the plaintiffs are Ex.A1 is sale deed in favour of first plaintiff and Ex.A2 is sale deed in favour of second plaintiff in the year 2010. Ex.A3 and Ex.A4 are pattdar pass book and title deed, Ex.A5 and Ex.A6 are adangals in the name of vendor of plaintiffs. In Ex.A5 also it is mentioned that 5 it is DKT patta. Since it is mentioned as DKT patta even for the possession of vendor of plaintiffs. The plaintiffs has to prove that it is not DKT patta but his own document shows that it is the land of Government. There is no document in favour of Manikya Rathnam Reddy and there is no proof that how Manikya Rathnam Reddy got the property. Except in the year 1996 partition deed under Ex.A7, there is no document to prove that Manikya Rathnam Reddy purchased the property and thereafter his son and grand son partitioned the plaint schedule property under Ex.A7 and thereafter Sami Reddy sold to Venkatachalapathy and plaintiffs purchased from Venkatachalapathy. Hence there is no proof to connect Ex.A7 partition deed to the plaint schedule property. Further except the sale deed in favour of plaintiffs there is no other document. The plaintiff examined as P.W.1 stated that he does not know how Manikya Rathnam Reddy got the plaint schedule property. If really the sale deed is purchased by Parandaman Reddy from Venkatachalapathy, Venkatachalpathy has to hand over the link document i.e., sale deed to Paranadaman Reddy to him but no such document filed into Court. Venkatachalapthy is examined before the Court but he also stated that he did not hand over the said sale deed to the plaintiffs. Even now in the Court Venkatachalapathy did not file the said document into Court. That is why how Venkatachalapathy got the plaint schedule property and whether he really got is also not proved.

8.It is the contest of the defendants that whether Subramanyam Raju who is the then VRO altered the revenue record and accordingly he altered the plaint schedule property from the classification of A.W.D, to patta land. That is why on eqnuiry he was suspended and also removed from the service and also filed criminal case against him. The revenue department also enquired into the matter and it is found that the classification of the land of plaint schedule property is altered. That is why the defendants contesting that there are four adangals, one is in Collecterate, one is with R.D.O., one is with Mandal Office and one is in the village level. The advangal with the VRO and Tahsildar are classified as patta land but the classification of plaint schedule property in the adangals of Collectorate and R.D.O., is A.W.D., land. The four copies of adangals in various levels who carry one classification since there is change in the village record, we have to depend on the classification mentioned in the record to Collectorate and R.D.O., since there is no alterantion in the village record, the then M.R.Os also granted pattadar pass books and title deeds to the plaintiffs and others basing on the altered adangals. That is why notices were given to the plaintiffs and also canceled the pattadar pass books and title deeds of the plaintiffs with regard to the plaint schedule property, the plaintiffs also admitted the same. Though they have stated that they do not know about 6 the cancellation, they admitted that the revenue authorities gave notice and also gave notice with regard to the cancellation of pattadar pass book and title deed. The second plaintiff surrendered the pattadar pass book and title deed to the revenue department where as the first plaintiff did not hand over the pattadar pass book and title deed since he has some other land apart from plaint schedule property which is patta land. Hence basing on the pattadar pass book and title deed which are canceled to the plaint schedule property, the plaintiffs filed the suit. The plaintiffs also admitted that the District Collector gave direction to the Tahsildar, Vijayapuram to register the case against his vendors and plaintiffs for the transaction done for the government land. The plaintiffs also admitted that one Babu and Muni Jyothi also filed a suit in the plaint schedule property in O.S. 156/2012, his vendor sold the plaint schedule property to said Babu and Muni Jyothi. The boundaries of the said suit and plaint schedule property are one and the same. When the vendor of the plaintiffs already sold the plaint schedule property to Babu and Muni Jyothi how again he sold the same property to the plaintiffs and how the plaintiffs can get the right over the plaint schedule property which have already sold, moreover it is government land.

9.P.W.2 though stated about the purchase of the plaintiffs, he is not an attestor of the document and he was not present at the time of transaction and hence the document cannot be proved. He also do not know the facts of the suit.

10.P.W.3 also stated that he does not know whether Paranadaman Reddy and Sami Reddy partitioned the proeprty and whether Parandaman Reddy got the plaint schedule property and he also do not know whether VRO and vendors of plaintiffs altered the revenue records. That is why he do not know about the plaint schedule property.

11.Venkatachalapathy who is alleged vendor of the plaintiffs examined as P.W.4 stated that he purchased the property from Parandaman Reddy in the year 1976. The said sale deed is not filed into Court, he also admitted that he did not hand over the said sale deed to the plaintiffs. Parandaman Reddy has no document for the plaint

schedule property. If really P.W.4 purchased the plaint schedule property from

Paranadaman Reddy, he would have know that how Paranadaman Reddy got the

property. The plaintiffs already pleaded that Paranadaman Reddy and Sami Reddy

partitioned the property and filed Ex.A7 which is a partition deed. Since this P.W.4

stated that he purcahsed the property from Parandaman Reddy, he has to know the

same but he stated that Parandaman Reddy has no document for the plaint schedule 7 property since it is his ancestral property. That is why P.W.4 is also no knowledge about the property and there is also no record to prove that P.W.4 purchased the

property from Parandaman Reddy. He also did not verify the revenue record with

regard to plaint schedule property to prove the possession of his vendor. That is

why there is no proof that P.W.4 purchased the property from Paranadaman Reddy.

12.P.W.5 is son of Paranadaman Reddy. He also do not know when his grand father and his father partitioned the properties. It was prior to his birth, that is why he cannot say the properties partitioned among his father and grand father is the

plaint schedule property. That is why he do not know whether the partition deed

covers the plaint schedule property or not. He aso do not know the extent and

boundaries of the plaint schedule property. That is why the plaintiffs could not

prove that the plaint schedule property is the ancestral property of Manikya

Rathnam Reddy and succeeded by his on and grand son and purchased by the

plaintiffs and he also failed to connect the plaint schedule property to the property covered under Ex.A7. Hence there is no proof that the plaint schedule property is

the property of Manikya Rathnam Reddy. Issue No.1 is answered accordingly.

13.Issue No.2 : P.W.1 filed the suit along with pattadar pass book to prove their title over the plaint schedule property. The defendants pleaded that the pattadar pass

book and title deed issued in favour of the plaintiffs are canceled. Though the

plaintiffs denied the cancellation of the pattadar pas book and title deed, he has admitted that defendants gave their notice to the plaintiffs for cancellation of pattadar pass book and title deed and also asked him to surrender pattadar pass book and title deed. RDO., gave notice for cancellation of pattadar pass book and title

deed, though he denied that he has not preferred any appeal for cancellation of

pattadar pass book and title deed, he did not furnish any proof for such appeal. He also admitted that the District Collector gave direction to Tahsildar, Vijayuapuram to register a case against him. His wife i.e., second plaitniff also obtained pattadar pass book and title deed for item NO.2 and they are taken by the MRO. That is why the pattadar pass book and title deed of the plaitniffs 1 and 2 are canceled. The plaintiff NO.3 did not surrender the pattadar pass book and title deed issued to him since there is other property to him in the said pattadar pass book and title deed. As admitted by the plaintiffs, the pattadar pass book and title deeds of plaintiffs 1 and 2 with regard to the plaint schedule property are canceled. Hence they cannot rely on

those documents. Issue No.2 is answered accordingly.

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14.Issue No.3 : With regard to the declaration of plaint schedule proeprty, the

plaintiffs plea that Manikya Rathnam Reddy was the original owner, his son Sami

Reddy and his son Parandaman Reddy succeeded the same. Sami Reddy and

Parandaman Reddy partitioned the property under Ex.A7. Parandaman Reddy sold

the plaint schedule property to the plaintiffs to one Venkatachalapathy and

Venkatachalapathy sold the same to the plaintiffs. But according to the plaintiffs, one Babu and Muni Jyothi filed a suit with regard to the plaint schedule property as

Venkatachalapathy sold the plaint schedule property to them. That is why

Venkatachalapathy already sold the plaint schedule property to Babu and Muni

Jyothi. Moreover to rely on Ex.A7 it may be a partition deed in between the

parandaman Reddy and Sami Reddy. There are no boundaries, hence we cannot say

whether the plaint schedule property is the same property covered under Ex.A7. As discussed above, it is mentioned in Ex.A7 that half of the share in S.No. 279/1 is fell to the share of paranadaman Reddy and remaining is not fell to the share of Sami

Reddy. That is why there is only half share in S.No. 279/1, there is no explanation with regard to the other half share in the said Survey Number. Since there are no boundaries we cannot identify that the property covered under Ex.A7 is the plaint

schedule property. Hence Ex.A7partition deed does not serve the purpose of the

plaintiffs to prove that the title of the property is there even prior to 1966.

15.According to the defendants the classification of plaint schedule property is originally Anadeena Waste land. To prove that they have stated that there are four copies of adangals, one is with the Collectorate, one is with the R.D.O., one is with the M.R.O and one is with the village officer. The entries in four copies should be one and the same. The plea of the defendants is that the then VRO altered the entries in adangals in the village level, that is why the entries in the adangal with the VRO are not tallied with the adangal of the Collectorate. Ex.B1 is the fair adangal with the Collectorate Office,Ex.B2 is adangal with 3rd defendant. As per Ex.B2 the S.No.

279/1 is altered from S.No. 279/2 and according to it A.W.D., classification is

rounded off and mentioned as Punja land. The other entries in it are also rounded off but there is no certificate with regard to the said alteration. If there is any correction in the revenue record, it should be authorized and it should be certified but there are no certificates in the said alterations. Ex.B3 is the adangal kept with the Village level. According to it the S.No. 279/1A is in the name of the Desaiah. It is not the plea of the plaintiff that he has purcahsed the property from Desaiah. Ex.B4 is the report submitted by the Tahsildar to R.D.O. In the said report it is clearly mentioned that the then VRO made alterations in the revenue record without any authorization, 9 basing on which pattadar pass book and title deed are given. Hence it celarly shows

that the then VRO made alterations in the revenue record and changed the

classification of the record from A.W.D., to patta land. Since the revenue records are altered records, the plaintiffs cannot rely on the revenue record. The pattadar pass book and title deed issued to the plaintiffs are also canceled. Hence the revenue

records are not in support of the plaintiffs.

16.With regard to the sale deed as discussed above, the partition deed in between

Parandaman Reddy and Sami Reddy is not connected to the plaint schedule property and there is no proof that Venkatachalapathy who is the vendor of the plaintiffs

purchased the plaint schedule property from Parandaman Reddy. That is why the

plaintiffs failed to prove that the plaint schedule property is succeeded from

Manikya Rathnam Reddy. Hence the plaintiffs are not entitle for declaration of title

of the plaint schedule property. Issue No.3 is answered accordingly.

17.Issue No.4 : Though it is already decided that the plaintiffs failed to prove the title of the plaint schedule property, it is admitted fact that the plaintiffs are in possession of plaint schedule property. However their purchase is not valid, the defendants admitted in the written statement that the plaintiffs basing on the invalid document are in possession and they are entitle to take the possession of the plaint schedule property since it is government land. They have also issued pattadar pass book and title deed. Hence it is proved that the plaintiffs are in possession of plaint schedule property from the date of their purchase. Since they are in possession, they cannot be dispossessed without due process of law. Hence the plaintiffs are entitle for permanent injunction over the plaint schedule property till they are evicted by

the defendants under due process of law. Issue No.4 is answered accordingly.

18.Issue No.5 : In the result, the suit is decreed in part with regard to the permanent injunction and permanent injunction is granted to the plaintiffs over the plaint schedule property till they are evicted under due process of law and the suit is dismissed in part with regard to the declaration of title of plaint schedule property

with costs.

Dictated to the Personal Assistant, transcribed by her, corrected

and pronounced by me in Open court, this the 19th day of May, 2015.

sd/-N.Rajyalakshmi

Senior Civil Judge,

Puttur.

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Appendix of evidence

Witnesses examined

For plaintiffs

P.W.1: D.Rama Moorthy P.W.2: D.Damodara Raju P.W.3: M.Harikrishna P.W.4: K.Venkatachalapathy P.W.5: A.R.Manimeghali.

For defendants::

D.W.1: P.Raja Gopal Exhibits marked

For Plaintiffs:

Ex.A1: Original Registered sale deed in favour of P.W.1 Ex.A2: Original Registered sale deed in favour of second plaintiffs Ex.A3: Pattadar pass book Ex.A4: Title deed Ex.A5: No.2 adangal of plaint schedule property for the fasalies 1424 Ex.A6: 1-B Registered extract Ex.A7: Certified copy of partition deed along with translation copy

Ex.A8: Certified copy of sale deed.

For defendants:

Ex.B1: Attested copy of Fair Adangal copy of Collector Office Ex.B2: Attested copy of Fair Adangal copy of Thasildar Office Ex.B3: Attested copy of Fair adangal copy of the village level Ex.B4: Attested copy of detailed report submitted to the R.D.O., Chittoor Ex.B5: Attested copy of Cancellation proceedings of Pattadar Pass Book and title deed.

i/d.N.RL. SCJ, PTR.

IN THE COURT OF SENIOR CIVIL JUDGE; PUTTUR.

Present: Smt N. Rajyalakshmi, M.A.B.L.,

Senior Civil Judge.

Friday, the Twenty-Second (22nd ) day of May, Two Thousand and Fifteen.

A.S.No. 01 /2013

Between:

V.Prasad Rao.. Appellant/ Plaintiff

And:

1. Thiru V.T.Venugopal Chetty

2. Thiru V.T.Rama Rao

3. Thiru V.T.Purandhara Chetty

4. Smt. Kosala

5. V.Raniyamma

6. O.Sarala

7. Pushpalatha

8. V.T.Narasimhulu

... Respondents/Defendants.

On appeal from the decree and Judgment of Hon’ble Principal Junior Civil Judge, Puttur dt. 10-12-2012 made in

O.S.No. 64/2002

Between:

V.Prasad Rao .. Plaintiff

And:

1. Thiru V.T.Venugopal Chetty

2. Thiru V.T.Rama Rao

3. Thiru V.T.Krishnaiah Chetty (died)

4. Thiru V.T.Purandhara Chetty

5. Smt. Kosala

6. V.Raniyamma

7. O.Sarala

8. Pushpalatha

9. V.T.Narasimhulu .. Defendants2

… This appeal is coming on 27-04-2015 before me for final hearing in the presence of Sri. K. Siva Kumar, Advocate for appellant /Plaintiff, and Sri. Gali Ramesh, Advocate for respondents/defendants 1 to 4, 8 and respondents 5 to 7 remained exparte and upon perusing the grounds of appeal and the material part of records connected there in with, and upon the hearing the arguments on either side and having stood over for consideration till this day, this court delivered the following:

J U D G M E N T

The unsuccessful plaintiff/appellant preferred this appeal against the decree and judgment passed by the trial court.

2. Aggrieved by the said decree and judgment, the appellant/plaintiff preferred the appeal. The pleadings and parties are referred as plaintiff and defendant and plaint and written statement as referred by the trial court for the sake of convenience.

3. Brief facts of the plaint are:

The father of plaintiff by name V.T.Manikyam Chetty is an

Ex-Service man. Out of his salary and savings and retirement benefits, he purchased the suit schedule property and other property in Court auction on 06- 04-1949 in E.P.7/1949 in O.S.208/1940 of D.M.C., Tirupati. The sale was confirmed on 18-06-1949. Ever since he purchased, he has been in possession and enjoyment of the same by raising crops. The plaintiff got separated from his father from the year 1988. The plaintiff purchased some extent out of the property purchased by his father in an extent of 0.77 cents out of Ac.2.33 cents in S.No.

82/1, 0.17 cents out of Ac.1.29 cents in S.No. 83/8 and 0.08 cents out of 0.32 cents in S.No. 83/9 from his father under registered sale deed dt: 16-09-1994. The defendants 1 to 4 and V.T.Balasundaram are brothers of plaintiff father

V.T.Manikyam Chetty. They wanted to grab the suit scheduled property and they have conspired have together and wanted to sell away the suit scheduled property to D.5. V.T.Manikyam Setty suspected the bonafides of these brothers i.e, D.1 to 4 and got issued a legal notice to them. Later V.T.Manikyam Chetty fell ill. He wanted to settle himself with the plaintiff and he executed a registered will on 07-01-1998 in favour of the plaintiff and bequeathed the plaint schedule property and some other property to the plaintiff. V.T.Manikyam Chetty again got suspicion against the defendants 1 to 4 and again got issued another legal notice on 04-01-1999 to D.1 to 5. The defendants received the said notice but they did not give any reply. Hence the father of plaintiff kept quiet. V.T.Manikyam Chetty died on 02-10-1999 leaving behind him the plaintiff to succeed his estate as legate under the will. The will dated 07-12-1998 was acted upon. The plaintiff has been in exclusive possession and enjoyment of the suit schedule property under the will. D.1 to 4 have no right or title over the property. Due to drought, the plaintiff is not cultivating the suit lands since 3 years. 15 days back he was attending to agricultural operations in the suit scheduled property, D.5 came and attempted to interfere with the plaintiffs possession and enjoyment of the plaint scheduled property claiming that he has purchased the same from D.1 to 4 and

Balasundaram, the plaintiff came to know that D.1 to 5 joined together and created sham and nominal documents in the name of D.5. Again on 05-08-2002 when he was attending to the agricultural operations D5 came with her men in large following and attempted to dispossess the plaintiff from the suit scheduled property. Since the plaintiff resisted the same, she proclaimed that she will construct a compound wall in the suit schedule property. The defendants are denying the title of the plaintiff to the suit schedule property on the ground that

D.5 purchased the property from D.1 to 4 and another. Hence the suit for declaration of permanent injunction.

4. The defendant No.5 filed her written statement, D.2 to 4 adopted the same.The brief facts of the written statement are :

Defendant Nos. 1 to 4 are brothers of father and plaintiff

V.T.Manikyam Chetty. He was elder son, he retired as VAO of Tadukupeta village. He maintained all the revenue records pertaining to the near by villages of

Tadukupeta. He might have worked in defence and may be ex service man but he retired with nil benefits and he was not getting any pension and other allowances.

Grand father of plaintiff purchased the plaint scheduled property from and out of the joint family funds in the name of V.T.Manikyam Chetty. The property purchased in the name of father of plaintiff is not self acquired property of

V.T.Manikyam Chetty and it is joint family property. Long back the brothers of

V.T.Manikyam Chetty, plaintiff and D1 to 4 and Balasundaram and others divided under oral partition as per the advice of the village elders. All the brothers got their respective shares. Each brother got some extent of plaint schedule property including the part of suit schedule property long ago. As per the partition, V.T.Balasundaram got Ac.1.43 ½ cents, V.T.Venu Gopal Setty got 0.56 ½ cents, V.T.Rama Rao got Ac.1.13 ½ cents, V.T.Krishna Moorthy got 0.60 cents. All the above brothers are in possession of their respective shares. All the brothers also executed an agreement of sale in favour of D.5 and father of plaintiff attested the said sale agreement. Father of plaintiff worked as village officer of the suit village and created several documents in respect of the suit schedule property.

Will dt: 07-12-1998 and sale deed dt: 16-09-1994 are also created by the father of the plaintiff to grab the properties from his brothers. D.5 purchased the plaint scheduled property under sale deed dt: 26-06-1996 for valid consideration and she is in possession and enjoyment of the same. She also obtained the pattadar pass book and title deed in favour of P.S.Kosala. D.1 to 4 were in possession and enjoyment of the suit schedule property since long time and they also perfected their title even on adverse possession. Hence the suit is liable to be dismissed.

5. Basing on the pleadings of both parties the following issues are framed in the Trial Court.

1. Whether the suit schedule properties are self acquired properties of father of the plaintiff ?

2. Whether the plaintiff purchased some extent of the suit property from his father under a registered sale deed

dt: 16-09-1994 for sale consideration of rs. 68,500/-?

3. Whether father of the plaintiff executed a registered will

dt: 07-12-1998 in favour of the plaintiff in respect of

suit properties ?

4. Whether the grand father of the plaintiff purchased the suit schedule property in the name of father of the plaintiff from and out of the joint family funds?

5. Whether the suit properties were divided between the father of the plaintiff and his brothers i.e., D.1 to D.4 and one Mr Balasundaram?

6. Whether defendant No.5 purchased the suit schedule properties from D.1 to D.4 and one Mr.V.T.Balasundaram under Registered Sale deed dt: 26-06-1996 for sale consideration of Rs. 1,18,000?

7. Whether the plaintiff is entitled for declaration of title in respect of suit schedule properties against the defendants as prayed for?

8. Whether the plaintiff is entitled for perpetual injunction in respect of suit schedule properties against the defendants as prayed for ?

9. Whether the suit is bad for non joinder of necessary parties ?

10. To what relief?

6. On behalf of plaintiffs, P.Ws.1 to 4 were examined and Exs.A.1 to A.13 were marked. On behalf of defendants, D.Ws.1to 5 were examined and Exs. B1 to B8 were marked.

7. Heard both sides.

8. Trial Court dismissed the suit. Aggrieved by the same the plaintiff preferred the appeal.

9. Point for consideration is: Whether the judgment and decree passed by the trial court is liable to be set aside?

10. Point: The plea of the plaintiff is that the plaint schedule property is the self acquired property of his father V.T.Manikyam Chetty.To prove the same, the plaintiff filed sale confirmation certificate. It is admitted by the defendants also that the plaint scheduled property was purchased in a Court auction in the name of V.T.Manikyam Chetty but the contest of the defendants is that the sale property was purchased by the father of V.T.Manikyam Chetty and

D.1 to 4 in the name of V.T.Manikyam Chetty as he is the elder son. Hence the defendants contest is that the plaint schedule property is ancestral property and that is why it is partitioned among V.T.Manikyam Chetty and D.1 to 4. They also contest that since the plaint scheduled property fell to the share of D.1 to 4 in the partition, they have sold the property to D.5 and V.T.Manikyam Chetty also attested the same. This agreement is dated 26-01-1996. V.T.Manikyam Chetty also sold some of the plaint scheduled property to the plaintiff under Ex.A2 dated 16-09-1994. He got issued legal notice to the defendants 1 to 4 on 08-07-1996.

Even prior to the attestation in Ex.B1 agreement in favour of D.5 executed by D.1 to 4 and others, V.T.Manikyam Chetty executed a sale deed in favour of plaintiff.

Since the defendants pleaded that the plaint schedule property is purchased by the father of D.1 to 4 and V.T.Manikyam Chetty in the name of V.T. Manikyam

Chetty , it is the burden of the defendants 1 to 4 and D.5 to prove that it is purchased with the funds of their father. The burden is on the defendants to prove the same. There is no record to prove that the funds are provided by the father of

D.1 to 4 to purchase the property. The defendants took a plea that V.T.Manikyam

Chetty did not get any benefits or pension from his service in defence and hence he has no capacity to purchase the property. Though he has no income from the defence it is admitted fact that V.T.Manikyam Chetty worked as V.A.O., to the village for about 40 years. But the plea of the plaintiff is that his father purchased the property from his savings when he worked in defence. There is no document when his father came out from the defence and by that time he has no income.

Though he has executed the sale deed in favour of plaintiff and sold some property to him but he has attested the Ex.B1 sale agreement. The sale agreement is subsequent to sale deed executed by him in favour of plaintiff. If really he executed a sale deed in favour of his son why he attested the Ex.B1 agreement for the same property. The V.T.Manikyam Chetty is not an illiterate, hence we cannot say that he do not know the contents of the document and hence he attested the document without knowing the property covered under the said sale agreement. Since he worked as VAO, he knew about the document and properties, that is why we cannot presume that he attested and document, without knowing the contents. That is why he knows that the plaint scheduled property has been agreed to sell to D.5 by D.1 to 4. Having attested the same in the year 1986 and executed a sale deed in favour of the plaintiff, prior to that, he also executed a will in favour of the plaintiff bequeathing his property. He also gave legal notices to D.1 to 4 as they are intending to sell the property but did not take any action. The plaintiff also admitted in his cross examination that his father and

D. 1 to 4 executed sale deed in favour of D.5. That is why V.T.Manikyam Chetty did not act as the plaint scheduled property is his self acquired property. He has such conscience that it is his self acquired property that he would not have attested the document as executed by D.1 to 4. hence though the property is in the name of V.T.Manikyam Chetty attested the sale agreement executed by D.1 to 4 and also sold the property to D.5. Hence the sale deed executed by him in favour of plaintiff may be a nominal. The said will is also in the year 1996. The defendant filed revenue record into Court to prove that the plaint schedule property is purchased by D.5. No.3 adangal also shows that D.5 is in possession of plaint scheduled property from the fasalies 1407. If really in the year 1964 the plaintiff obtained the sale deed, he would have revenue record for the same. But the plaintiff did not file any revenue record into Court to prove that he is in possession of the plaint scheduled property in-pursuance of the sale deed executed in his favour by his father. He also did not obtain any pattadar pass book and title deed from the revenue department and not filed into Court. His plea is that he also succeeded the plaint scheduled property from his father under the will. Even for that he has not filed any document into Court.

11. He has examined witnesses to prove the execution of sale deed and execution of will in his favour but there is no revenue record in his favour as he succeeded the property and he entered into possession of the property to prove that the said sale deed and will are acted upon. If really his father executed the sale deed in his favour in the year 1964 and his father again executed sale deed in favour of D.5 that some property along with D.1 to 4, the plaintiff did not object the same. If the sale deed is in his favour in the year 1964 is acted upon, he being the owner of the property he would have objected his father and defendants 1 to 4 to sell the property to D.5. But plaintiff also did not raise any objection for execution of sale deed in favour of D.5. Though V.T.Manikyam Chetty already executed sale deed in favour of D.5 and attested the said agreement in favour of

D.5, he got issued legal notice to D.1 to 4 smelling that D.1 to 4 are intended to create sham and nominal document. Having executed the sale deed by himself along with others how he can again give legal notice to the defendants 1 to 4 stating that the defendants intending to sell the property. Even for that notice also he did not proceed to file any suit and he kept quiet, again he has executed the will bequeathing the property to the plaintiff. Hence we can assume that the father of plaintiff has intended to create some document in favour of his son apart from the execution of sale deed in favour of D.5. That is why he has executed sale deed, will and also got issued legal notice etc., knowing-fully well that he sold away the property.

12. On the other hand the name of D.5 is mutated in the revenue record and he also obtained pattadar pass books and title deeds for the plaint schedule property. Hence his name is entered in revenue record. Being

VAO, V.T.Manikyam Chetty has sufficient knowledge about the revenue records, he also worked as VAO to the neighbouring village of Tadukupeta where the suit scheduled property is situated. Hence he also know about the mutation of name of

D.5 in the revenue record. The said sale agreement and sale deed are executed during the life time of V.T.Manikyam Chetty. That is why V.T.Manikyam Chetty has every knowledge about the mutation of record in the name of D.5. But he got issued legal notices stating that D.1 to 4 are intending to sell the property which were already sold by the D.1 to 4 and V.T.Manikyam Chetty. That is why, the documents obtained by the plaintiff from his father are only to create some documents in favour of the plaintiff but not to act upon. Hence, the plaintiff failed to prove that the plaint schedule property is the self acquired property of

V.T.Manikyam Chetty and V.T.Manikyam Chetty sold some property to the plaintiff and bequeathed some property and those documents are acted upon. No person will execute two documents, two sale deeds for the same property except with an intetion to create litigation or without knowledge. Being VAO we cannot expect that V.T.Manikyam Chetty has no knowledge as he attested the sale agreement and executed the sale deed in favour of D.5. That is why, the Court cannot believe that he has no knowledge about execution of document in favour of D.5 and executed the will. Hence, the trial Court correctly came to the conclusion and dismissed the suit. Hence no interference is necessary and accordingly, the appeal is liable to be dismissed.

13. In the result, appeal is dismissed.

Dictated to the Personal Assistant, transcribed by her,

corrected and pronounced by me in the open court this the 22 nd

day of May, 2015.

sd/-N.Rajyalakshmi

SENIOR CIVIL JUDGE,

Puttur.

APPENDIX OF EVIDENCE

-Nil- i/d.N.RL. S.C.J, PTR

1

IN THE COURT OF THE SENIOR CIVIL JUDGE AT PUTTUR.

Present : Smt. N.Rajyalakshmi, M.A., B.L.,

Senior Civil Judge, Puttur.

Thursday, the Twenty-First (21st)day of May , Two thousand and Fifteen.

O.S.No. 77 of 2011

K.Kalavathi.

.. PLAINTIFF.

// VERSUS //

1. V.Abbulu Naidu (died)

2. Sarojamma

3. V.Raghavulu Naidu

4. V.Subramanyam Naidu @ Chinnabba Naidu

5. V.C.Sivaiah Naidu

6. V.Prasad

7. V.Chandrababu Naidu

8. V.Nallama Naidu All are Hindus, cultivation, Nos. 1 to 3 & 5 to 9 are residing at Medavada village, Marripalli Post, S.R.Puram Mandal, Chittoor District.

9. V.Sundaramma

10.P.Neela

11.V.Balakrishnama Naidu

12.V.Sivaiah Naidu (Defendants No.10 to 13 have added as per the order in I.A.No. 923/2013: dated: 04-02-2013)

.. DEFENDANTS.

This suit coming before me on 22-04-2015 for final disposal in the presence of Sri Gali Ramesh, Advocate for the Plaintiff and Sri. K.Purushotham, Advocate for defendant Nos. 2,3,5,6,8 and Sri. K.Siva Kumar, Advocate for defendant No.11 and defendant Nos. 10, 12 remained exparte, upon hearing the arguments and having stood over for consideration till this date, this Court delivered the following:

J U D G M E N T

This suit is filed by the plaintiff against the defendants for partition of plaint schedule properties and deliver the separate possession of items 1 and 2 of plaint schedule properties.

2) The brief facts of the plaint are that the item No.1 of plaint schedule property is in an extent of Ac. 4.40 cents in old Phimash No. 102, 113-P and 115 correlated to S.No. 213/7. The said property was belong to Krishnama Naidu, Buchi Naidu, Bodi Naidu, Neelaveni and Desu Naidu. During the survey and settlement operations, it is registered in their names. The item No.2 of plaint schedule property is in an extent of Ac.0.10 cents with a well in old Paimash No. 108 correlated to S.No. 213/6 registered in the name of 2

Krishnama Naidu, Bodi naidu and Desu Naidu during survey and settlement operations. The plaintiff is daughter of Desu Naidu. The defendants are the legal heirs of other sharers . Paimash Nos. 113,1102,115 were correlated to S.No. 213/7 in an extent of Ac.4.40 cents. Paimash No. 115 and 102 were in an extent of Ac.4.00 and paimash No. 113 is in an extent of Ac. 0.40 cents.

Before survey and settlement operations, the family of Buchi Naidu was in

possession of Paimash No. 113. the other two Paimash numbers 102 and 115 were in possession and enjoyment of Krishnama Naidu, Bodi Naidu and Desi Naidu. Since all the Paimash Numbers were correlated to S.No.213/7 during survey and settlement operations, the names of all the above persons i.e., Buchi Naidu, Krishnama Naidu, Bodi Naidu and Desi Naidu were registered as pattadars. They are in possession of their respective extents owned by them

before survey and settlement operations were not affected by correlation.

Subsequently D1 and D2 affected partition and partition list was written on 04-02-1958. Even as per the partition list the defendants 1 and 2 had only six guntas and 24 veesams of land i.e., Ac. 0.40 cents in suit schedule survey numbers. By the date of the said partition the survey and settlement operations were not completed. Hence the partition was affected by mentioning the paimash Numbers. For the rest of Ac. 4.00 cents Desi Naidu , father of plaintiff got an extent of Ac. 1.44 cents and defendants 5 to 7 got Ac. 1.46 cents. Out of Ac. 1. 46 cents held by the families of defendant Nos. 5 to 7, they have sold an extent of Ac. 0.75 cents to 8th defendant under registered sale deed. The said document also discloses that the plaintiff's family had got Ac. 1.44 cents in the suit schedule survey numbers and 1/3rd share in item No.2 of the plaint schedule property. The entire extent held in three paimash numbers clubbed together and recorded in the names of five persons during the survey and settlement operations and correlated to S.No. 213/7 to an extent of Ac. 4.0 cents. The plaintiff's family and defendants family continued to be shown as joint pattadars of suit schedule survey numbers and they have been enjoying their respective shares in the suit schedule property. Item NO.2 of plaint schedule property was registered in the name of Desu Naidu, Krishnama Naidu, Bodi Naidu. Hence the plaintiff got 1/3rd share in the item No.2. Notwithstanding the correlations and extent of paimash Nos. 113, 102 and 115 in S.No. 213/7, the possessory rights of plaintiff and defendants is unaffected. Due to jointness in the suit schedule survey numbers there are occasional quarrels and misunderstandings between the plaintiff and defendants. Hence the plaintiff felt that it is not good to keep the shares in joint in the revenue record along with the other defendants without any sub division. The plaintiff approached the defendants for division of plaint schedule properties by meets and bounds about two years ago. The defendants with an evil idea started claiming more extent to grab the property and proclaiming that they will create 3 some sham and nominal documents. The property devolved on the plaintiff and defendants is ancestral property by virtue of long occupation. There are no registered documents. Hence the suit.

3) The first defendant filed his written statement and 11th defendant adopted the same. The 12th defendant filed his written statement, D.5 also filed separate written statement and D.2,3,6 and 8 adopted the same. Brief facts of the written statement of D.1 and adopted by D.11 and written statement of D.12 are that already a suit was filed in O.S.65/1982 on the file of Addl. Senior Civil Judge, Tirupati for partition in which the plaintiff is the 5th defendnat. It was decreed on 04-04-1988. The plaintiff was allotted her respective share. Siddama Naidu filed a suit in OS. 20/1995 in which the plaintiff and the defendant are also parties and same was dismissed. Aggrieved by the said Judgment, Siddama Naidu preferred an appeal in A.S.33/2003 on the file of this Court and it was also dismissed. Hence this suit is hit by resjudicata. Hence suit is liable to be dismissed.

4) In the Written statement of Defendant No.5 and adopted by defendant Nos. 2,3,6 and 8 , it is mentioned that the claim of the plaintiff is correct and defendants 2,3,6 ,8 and also entitle for their share as prayed by the plaintiff.

5) Basing on the pleadings of both parties the following issues are framed:

1. Whether the plaintiff received his share as per the Judgment in O.S.65/1982 of Additional Senior Civil

Judge, Tirupati ?

2. Whether the plaintiff is entitled for partition?

3. To what relief?

5.In this suit, on behalf of plaintiff, P.W.1 to P.W.3 were examined and Exs. A1 to A5 are marked. On behalf of defendants, D.Ws.1 to 4 were examined and Exs. B.1 to B.17 are marked.

6.Heard both sides.

7.Issue No.1: As per the contest of D1,D11, D12 is that this suit is hit by resjudicata since the plaintiff also filed a suit in O.S.65/1982 and the plaintiff has received her share in the said suit. Hence he is not entitle for any partition. Except this contest, there is no other contest in the written statement filed by the defendants. The other defendants accepted the version of the plaintiff and they are also claiming their share. Hence it is admitted fact that the above said persons by name Buchi Naidu, Bodi Naidu, Desu Naidu and Neelaveni are the owners of the land. Prior to survey and settlement 4 operations the lands of each of them having separate Paimash numbers. During survey and settlement operations all these paimash numbers are allotted in one Survey number and hence lands of all these five persons came into one survey number. Hence the properties of five persons are in one survey number. The plaintiff and defendants are legal heirs of those for members, that is why they became owners of land in one survey number. But it is not a case that all of the plaintiff and defendants are belong to joint family and they are equal sharers. The plaintiff and defendants are no way related to each other and they are not the legal heirs of joint ancestors. All the five persons have their respective lands prior to survey and settlement operations and that is why the plaintiff and defendants are legal heirs for those persons but not belong to joint family. Hence all these parties inherited their shares from their individual ancestor. That is why the property is not belong to the joint ancestors. Hence the shares are also not equal. The plaintiff is the daughter of Desu Naidu, that is why she succeeded the property of Desu Naidu. Likewise the defendants also succeeded their properties as per their individual ancestor. Hence it is not a suit for partition of equal shares from the joint ancestor. As per the plaintiff all their ancestors used to enjoy their respective properties in Item NO.1 and item No.2 is joint well to three persons and hence they have 1/3rd share each in item NO.2 well. That is why the plea of the plaintiff is that the plaintiff has to divide her property succeeded from her father from the other defendants. But it is not the plea that all the plaintiff and defendants are in joint possession of plaint schedule property. Admittedly all the parties are in possession of their respective shares. That is why on the ground all of them are enjoying the separate possession and title independently and on the ground there is no dispute with regard to the title or boundaries. Except in revenue record with common survey number, there is no jointness to the parties. As pleaded by the plaintiff one survey number is alloted to three paimash numbers. That is why the lands in three paimash numbers came under one survey number i.e., not the jointness of the property except that it is not a case of joint possession and claiming of partition from single ancestor. Since all the parties are admitting that they are in possession of their respective properties and enjoying the same, claiming partition does not arise. If the parties are in joint possession, then only the share can be divided among the sharers and it give separate possession. Since the parties are also in separate possession of each share, partition does not arise. But the contest of the defendants is that the suit was already filed in O.S.65/1982 and in the said suit the plaintiff obtained her share and hence this suit is hit by resjudicata. Ex.B1 is the certified copy of judgment in O.S.65/1982. As per this judgment, this is a suit dismissed for default. Since the advocate for plaintiff reported no instructions during the trial the suit was dismissed for default.

5

That is why no judgment is passed on merits and no share was given to the plaintiff in O.S.65/1982. Hence resjudicata does not arise and plaintiff did not obtain any partition under suit in O.S.65/1982. Hence the suit is not hit by resjudicata. Issue No.1 is answered accordingly.

8.Issue No.2 : As discussed above, it is not a suit for partition claiming by the joint sharers succeeded by single ancestor and in joint possession. The plaintiff is legal heir of one person and defendants are legal heirs of three persons. That is why every party has their own ancestor but not the single ancestor. The plaintiff and defendants are also in separate possession of their respective shares. On the ground all the parties are enjoying their possession and enjoyment for their respective shares. The claim of the plaintiff is only that in revenue records partition should be there. Prior to survey and settlement operations there are three paimash numbers

and all these three paimash numbers were allotted to one survey number after

survey and settlement operations and that is why all the plaintiff and defendants

have land in single survey number though they have separate properties. The

plaintiff also admitted that they are in separate possession and enjoyment of their separate possession with title, some of the parties sold their entire properties and some of the parties sold some of their properties and that is why for the purpose of

enjoyment of title and possession the parties have no dispute and there is no

jointness in the property. Hence the property of each party are in separate

possession. Hence dividing the properties does not arise. The claim of the plaintiff is

only that since only one survey number is there to all the parties it should be

divided. For the purpose of division of property in the revenue record, sub division is sufficient. Sub division of survey number is sufficient and partition with meets and bounds is not necessary. The plaintiff has to apply to the revenue authorities for the sub division of their respective properties. All the witnesses of both parties and both parties admitted that they are in possession of their respective properties. The defendant also stated that he has no objection to divide the plaint schedule property among the sharers as per their shares. Since no partition on the ground is necessary and it is found by the plaintiff in O.S.65/1982,he did not pursue the matter though it is filed for partition and allowed to dismiss the suit for default but again she has filed this suit, though there is no mention in the pleadings of plaintiff that there are disputes with regard to the extent, she mentioned that because of jointness of survey

number some of the parties are claiming more extent than they have. However all

the parties admitting their extents as per their ancestors. Though it is mentioned that they have claiming more extent it is not pleaded that they are encroaching the lands of others. That is why there is no jointness in the property to the parties and hence 6 partition of property does not arise and the plaintiff can claim only sub division of the properties for the survey number. Hence the plaintiff is not entitle for partition,

he can apply to the revenue department for the sub division of survey number of

plaint schedule property and can obtain separate sub division number for the survey

number to her share and accordingly to the defendants. Since there is no joint

possession of property, partition does not arise. Hence the plaintiff is not entitle for

partition. Issue No.2 is answered accordingly.

9.Issue No.3 : In the result, the suit is dismissed with costs.

Dictated to the Personal Assistant, transcribed by her, corrected

and pronounced by me in Open court, this the 21st day of May, 2015.

Senior Civil Judge,

Puttur.

Appendix of evidence

Witnesses examined

For plaintiff

P.W.1: K.Kalavathi P.W.2: B.Ravi P.W.3: G.Subramanyam Naidu

For defendants::

D.W.1: V.Balakrishnama Naidu D.W.2: V.Sivaiah Naidu D.W.3: V.C.Sivaiah Naidu D.W.4: G.Sarojamma

Exhibits marked

For Plaintiff:

Ex.A1: Certified copy of C.L.R. Ex.A2: Registration copy of sale deed dt: 24-11-1980 Ex.A3 & A4: Office copy of legal notice dt; 28-10-2010 issued to Tahsildar and RDO, .Chittoor along with postal acknowledgement. Ex.A5: Certified copy of written statement in O.S.65/1982 on the file of Prl.Junior Civil Judge, Tirupati.

7

For defendants:

Ex.B1: Certified copy of Judgment in O.S.65/1982 Ex.B2: Certified copy of Judgment in O.S.20/1993 Ex.B3: Certified copy of decree in A.S.No.33/2003 Ex.B4: Certified copy of Judgment in A.S.,No. 33/2003 Ex.B5: Registered sale deed dt: 21-11-1962 executed by V.Neelavenamma in favour of G.Abbulu Naidu Ex.B6: Registered sale deed dt: 30-06-1987executed by V.Neelavenamma in favour of G.Abbulu Naidu. Ex.B7: Cist Receipts ( 2 in number) in the name of V.Abbulu Naidu Ex.B8:Certified copy of survey land and settlement Register of this suit land. Ex.B9: Certified copy of Fair adangal extract for the suit lands. Ex.B10: Certified copy of Commissioner Report in O.S.No. 20/1995 Ex.B11: Cist receipt in the name of V.Abbulu Naidu. Ex.B12: Certified copy of NO.2 adangal extract for fasli 1403. Ex.B13:Certified copy of No.2 adangal extract for fasli 1402. Ex.B14: Certified copy of decree in O.S.No. 65/1982 on the file of Addl.SEnior

Civil Judge, Tirupati. Dt: 04-04-1988.

Ex.B15:Course certificate issued by the Sri Ram Industrial Training Center, Chittoor. Ex.B16: Partition list dt: 04-02-1958. Ex.B17:Certified copy of plaint in O.S.No. 65/1982.

SCJ, PTR.

1

IN THE COURT OF THE SENIOR CIVIL JUDGE AT PUTTUR.

Present : Smt. N.Rajyalakshmi, M.A., B.L.,

Senior Civil Judge, Puttur.

Wednesday, the Twentieth (20th)day of May , Two thousand and Fifteen.

O.S.No.5 of 2013

P.K.T.Sambandhan

.. PLAINTIFF.

// VERSUS //

1. P.K.Lokanadhan

2. P.K.Mohanavelu

3. P.K.Kannappan

4. P.K.Hariharan

5. P.D.Vadivelu.

.. DEFENDANTS.

This suit coming before me on 15-04-2015 for final disposal in the presence of Sri K.Purushotham, Advocate for the Plaintiff and Sri. B.Raveendra, A.G.P., for defendant Nos. 1,3,4 and Sri. K.Bhaskar, Advocate for defendant No.2 and defendant No.5 remained exparte, upon hearing the arguments and having stood over for consideration till this date, this Court delivered the following:

J U D G M E N T

This suit is filed by the plaintiff against the defendants 1 to 5 for partition of the plaint A scheduled property into two equal shares and allot 1/5th share in half share and B scheduled property into 5 equal shares and allot ¼ th share to the plaintiff .

2. Brief facts of the plaint are: The plaintiff and defendants 1 to 4 are brothers and constituted Hindu Joint Family. They got divided their joint family properties on 31/12/1999 except the plaint A and B scheduled properties. They kept the plaint A and B scheduled properties as joint due to the pendency of suit and E.P

before this court. The 5th defendant had got ½ share in the plaint A scheduled

property and the remaining half share belongs to the plaintiff and D 1 to 4. The plaint B scheduled property is the absolute property of D 1 to 4.

3. The plaint A scheduled property is the subject matter of the suit in

O.S 54 of ’95 and E.P 2 of ’09 which ended finally on 30/07/2012 by getting

registration of the partition deed. As per the partition deed, the subject matter involved in the above suit and E.P is to be divided after completion of the litigation.

2

Defendants 1 to 5 acting adverse to the interest of the plaintiff and they are attempting to construct shopping complex in the plaint A scheduled property with the intention to knock away the share of the plaintiff. D1 in collusion with D2 to D4 and D5, attempted to dig foundation for a shopping complex on 25/12/2012. The plaintiff demanded for partition but the defendants didn’t cooperate with him.

Keeping the property under joint possession without partition, the purpose of jointness would be entirely defeated. The defendants are showing eagerness to proceed with the construction and hence, the plaintiff filed this suit.

4. Fourth defendant filed his written statement and D 1 to 3 adopted the same. D5 remained ex-parte.

5. Brief facts of the written statement are: Item A of the plaint scheduled property originally belongs to the partnership property. Partnership firm was dissolved after contesting the matter between the partners, ended in compromise

before Lok Adalat. The terms and conditions of the award got registered before the

Sub Registrar, Nagari. D1 and D5 got plaint A scheduled property in the same compromise. Thereafter, D1 and D5 got divided the plaint A scheduled property into two equal shares on 10/8/2012 under an unregistered partition list. D1 got his ½ share on the western side and D5 got his share on the eastern side. Since then, D5 is in possession and enjoyment of his share and D1 representing the plaintiff and D2 to

D4 are in joint possession and enjoyment of the western side share. The entire A scheduled property is divided among D1 and D5. D5 developed a shopping complex in his portion. D1 also developing the share which fell to him and plaintiff D2 to 4 by spending huge amounts. The expenditure to conduct litigation and the expenditure for the development is for a tune of Rs.40 Lakhs. The plaintiff and D2 have not at all paid any amount towards the expenditure. D1, D3 and D4 spent amounts for the litigation and development activities.

6. A case under Sarfaesi Act prosecuted by Federal Bank Limited,

Erode, against the plaintiff and D1 to D4. In the said transaction, the plaintiff is the

principal borrower and D1 to 4 are guarantors. They mortgaged their properties to

the bank for the said loan. Now, the loan amt accrued to Rs.43 lakhs. The bank authorities have taken action against the mortgaged properties to recover the debt.

When D1, D3 and D4 demanded the plaintiff and D2 to discharge the debt, they paid deaf ear. Hence, misunderstanding arose and legal notices got exchanged. Plaintiff and D2 are not co-operating for amicable partition and settlement of debts borrowed 3 on the plaint A scheduled property and due to the Federal Bank. D1, 4 and 5 have also faced criminal cases. D1, D3 and 4 are always ready to get partition of the joint family property provided that the plaintiff and D2 discharge the debts. D1, D2 to 5 have also tried for mediation in the village, but, the efforts proved futile. Without co- operating to the amicable partition, the plaintiff has chosen to file this suit with an ulterior motive to evade the debt amount. Hence, the suit is liable to be dismissed.

7. Basing on the pleadings of both parties the following issues are framed:

1. Whether the plaint A and B schedule properties are joint properties ?

2. Whether there are debts against the plaint schedule properties ?

3. Whether the plaintiff is entitle for partition of plaint A and B schedule properties ?

4. To what relief?

8. In this suit, on behalf of plaintiffs, P.Ws.1 to P.W.3 were examined and Exs. A1 and A2 are marked. On behalf of defendants, D.Ws.1 to 3 were examined and no documents are marked.

9. Heard both sides.

10. Issue No. 1: The plaintiff pleaded in the plaint that half of the plaint A scheduled property and entire B scheduled property are joint family properties. The defendants also pleaded that the plaint A scheduled property is a partnership property in between plaintiff, D1 to D4 and D5. Admittedly, the other properties were already partitioned. The plaint A and B scheduled properties are kept joint because of the pendency of lis in between D1 and D5. The said lis is ended in compromise before Lok Adalat. As per the terms of the compromise, the plaint a scheduled property is divided equally in between D1 and D5. The defendant also admitted that he received ½ share in the plaint A schedule in representing himself and plaintiff and D2 to 4. He also admitted the plaint B scheduled property is the joint family property of plaintiff and D1 to 4. Hence, there is no dispute with regard to the jointness of the property. The parties also admitted in the evidence that ½ share in the plaint A schedule and the entire B schedule properties are joint family properties. Hence, ½ share in the plaint A schedule and the entire B schedule properties are joint family properties of plaintiff and D1 to 4. Issue No: 1 is answered accordingly.

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11. Issue No. 2: Though the defendants admitted that the plaint scheduled properties are joint family properties, they have taken plea that D1 incurred expenditure to contest the suit in between him and D5 with regard to the plaint A scheduled property, which is a joint family property. He further pleaded that he has developed the plaint scheduled property by making construction of a shopping complex and incurred an expenditure for construction of shopping complex and to contest the suit to a tune of Rs 40 lakhs. He further pleaded that he has also contested another suit filed by Federal Bank and there is a loan to the bank for a tune of Rs.43 lakhs. That is why, the defendant contesting that they have incurred expenditure of Rs. 40 lakhs and Rs 43 lakhs which was due to the bank, in total Rs 83 lakhs. Though the defendants admitted that the plaint scheduled property is joint family property, they are claiming the expenditure incurred to contest the suits and development of the property to a tune of Rs. 83 lakhs. The plaintiff didn’t file any rejoinder to that aspect.

12. During the cross examination, the plaintiff admitted that there was a suit in O. S 54 of ’95 for the plaint scheduled property. The said suit was compromised in Lok Adalat. D1 is the manager of the joint family and he has also filed an E.P 2 of ’09 for execution of partition deed. Since, the plaintiff admitted the suit and E.P, there should be expenditure for the same. He has also admitted that at first instance, the suit in O.S 54 of ’95 went up to the Hon’ble High Court of

Hyderabad and remanded back to this court and a case was also there before R.D.O.

Hence, the plaintiff has to admit the expenditure incurred for the said litigation.

13. The plaintiff has also admitted that the plaintiff and D1 to 4 obtained loan from Federal Bank, Erode, for the business. D2 mortgaged his property for the loan. The loan accrued to Rs.15 lakhs but the defendant suggested that the loan accrued to Rs 43 lakhs. He has also admitted that he has not been paying the installments to the loan. Hence, the loan is also there, though there is a dispute with regard to the amount due to the bank but the loan is admitted. Though there is a dispute with regard to the amount of due to the Federal Bank, the account would be there with the bank and hence, it would clear the dispute.

14. The plaintiff denied that he has not paid his share of expenditure to contest the suit or for the development; he didn’t file any record to prove that he has paid his share of expenditure. He also didn’t say what was the amount paid by him towards the said expenditure. Hence, there is no proof for the payment made by the plaintiff to prove that he has paid the amounts. To prove that he has paid the 5 amounts, the plaintiff examined PWs 2 and 3 but they also didn’t say what was the amount paid by the plaintiff towards the expenditure or development but PWs 2 and 3 admitted that previously there was a cinema theatre. It was removed and D1 constructed ten shops. He has stated that he doesn’t know whether D1 invested Rs 40 lakhs for the construction of the shops and the expenditure for the litigation. He has also stated that he doesn’t know who invested the money for the construction of the shops. That is why, PW2 couldn’t say that the plaintiff paid his share of expenditure. PW3 had stated that D2 gave Rs. 5 lakhs for the share and the share of the plaintiff for the construction of the shopping complex. Though, PW3 had stated that D2 had paid the expenditure, D2 didn’t mention the same in the written statement. Moreover, D1 had mentioned in the written statement that D2 and plaintiff didn’t pay their share of expenditure and D2 adopted the written statement of D1. That is why, D2 didn’t deny the plea of D1 nor did he plead that he has paid his share of expenditure. Hence, D2 has no pleading that he has paid the share of expenditure whereas PW3 had stated which is contrary to the pleading. PW3 has also stated that plaintiff and D1 to 4 provided money for the court litigation and gave to D1 in the year 99. It may be Rs.2 lakhs, but, the plaintiff did not say that he has paid Rs.2 lakhs towards the expenditure for the court litigation. That is why, PW3 showed more interest than the plaintiff which is not believable. The plaintiff has also admitted that there is a loan with Federal Bank, which is also not proved that he has paid the expenditure for the litigation. It is admittedly, the plaintiff has not paid any share for the development of property or for the construction of the shopping complex since in the plaint itself that the plaintiff pleaded that the defendants are eager to make construction in the plaint scheduled property and that is why, he has filed this suit. Hence, the plaintiff didn’t pay the expenditure for the litigation or for the development and also towards the loan to the Federal Bank. Hence, the plaintiff has to bear the share for the expenditure and also loan, where he has been claiming for a share in the property. A person cannot blow hot and cold at a time and hence, the plaintiff cannot claim property without sharing the expenditure. Hence, there are dues to the property to be shared when claiming partition. Issue No: 2 is answered accordingly.

15. Issue No. 3:As discussed above, as per the pleadings of the plaintiff, ½ of the plaint scheduled property and entire B scheduled property are joint family properties of plaintiff and D1 to 4. The defendants also admitted the same, hence, the plaintiff is certainly entitled for partition and separate possession of 1/5 th share . But, as per the pleadings of the defendant, D1 being the manager of 6 the joint family, spent Rs.83 lakhs to save the plaint scheduled property and other properties. The plaintiff and his witnesses also admitted that there was a suit filed by D5 against D1 and D1 contested the said suit. It went upto the Hon’ble High

Court and was remanded back to the trial court and ended in Lok Adalat. To contest the said suit from the year 1995 to 2012 , i.e., for 7 years, he met the legal expenses for the litigation. He has also constructed a shopping complex with the expenditure. He has also faced a case filed by the Federal Bank in Tamilnadu and a loan is also pending. All these expenses and dues are also to be shared by the all the sharers including the plaintiff. The plaintiff cannot take only the share in the property and cannot leave the dues and expenses. The defendants mentioned in the written statement that he expended Rs. 40 lakhs and a loan in Federal Bank in

Tamilnadu. The plaintiff also admitted that those expenses were borne by D1.

Though he had stated that he also gave his share in the expenditure, he had failed to prove the same and he also couldn’t say that what was the amount paid by him. He has also though merely denied that much of expenditure is not met by D1, no specific denial is there for the said expenditure. He also did not elicit about the details of the expenditure for the litigation and construction of shopping complex.

Hence, it is to be presumed that amount as stated by D1 in the written statement is admitted by the plaintiff. Hence, the plaintiff is also liable to pay his share in the loan and expenditure of Rs.40 lakhs. Accordingly, the plaintiff and D1 to 4 are entitled for 1/5th share in ½ of the plaint A scheduled property and the entire B scheduled property subject to the payment of expenditure and discharge of loan as per their respective shares. Issue No: 3 is answered accordingly.

16. Issue No. 4: In the result, the suit is preliminarily decreed as the plaintiff and D1 to 4 are entitled for 1/5th share in ½ of the plaint A scheduled property and the entire B scheduled property subject to the payment of expenditure and discharge of loan as per their respective shares. In the circumstances of the case, each party shall bear their own costs.

Typed to my dictation by the Personal Assistant, transcribed by her, corrected and pronounced by me in Open court, this the 20th day of May, 2015.

sd/-N.Rajyalakshi,

Senior Civil Judge,

Puttur.

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Appendix of evidence

Witnesses examined

For plaintiff:

P.W.1: P.K.T.Sambandhan P.W.2: A.M.Desappa Mudali P.W.3: P.N.S.Mohan Raj

For defendants::

D.W.1: P.K. Lokanadham D.W.2: K.K.Umapathy D.W.3: P.E.Jagadeesan Exhibits marked

For Plaintiff:

Ex.A1: Certified copy of registered partition deed dt: 31-12-1999 Ex.A2: Certified copy of partition deed as per Lok Adalath compromise

dt: 30-07-2012

For defendants:

:: N I L ::

i/d.N.RL. SCJ, PTR.

IN THE COURT OF THE SENIOR CIVIL JUDGE; PUTTUR

Present :- Smt.N. Rajyalakshmi, M.A. .B.L.,

Senior Civil Judge, Puttur.

Friday, the First (1st ) day of May, 2015.

EP.NO. 75 of 2014

A.R.No. 01/2012

Between:

M/S Shriram Transport Finanance Co.Ltd., Tirupati. Rep.,by its G.P.A. Holder P.Rajasekhar… D.H.R/Petitioner

And:

1. C.Hari Babu

2. R.Sekhar ...J.Drs/Respondents.

This petition is coming on 30-04-2015 before me for final hearing in the presence of Sri. K.Siva Kumar, Advocate for the Decree Holder and Sri. Ch.M.S.Raju, Advocate for Judgment debtors and having stood over for consideration till this day this court delivered the following :-

O R D E R

This Execution petition is filed by the Decree Holder against the Judgment Debtor under order 21 rule 34 and 64,66 C.P.C. To attach the movable of Judgment Debtor and sell the same to realize the E.P., amount.

2. The brief facts of the petitions are : The Branch Manager of decree holder cum power of attorney holder filed this E.P., on behalf of decree holder. The decree holder filed Arbitration case against the Judgment Debtors for recovery of due amount and it was awarded in favour of decree holder. Even after passing of award the representatives of decree holder made several personal demands on Judgment Debtors 1 and 2 and also got issued a legal notice on 28-05- 2014 but they failed to comply the notice. The Judgment Debtors have not filed any petition to set aside the order or did not file any appeal against the said order. The first Judgment Debtor has movable property worth Rs. 50,000/-. He also has been doing seasonal business and earing Rs. 20,000/- per month. The first Judgment Debtor has sufficient means and capacity to pay the entire E.P., amount. But he has been evading. Hence the E.P.,

3. The fist Judgment Debtor filed his counter. The brief facts of the counter are the first judgment debtor has no movable properties more particularly shown in the schedule. The Judgment Debtor is not doing any seasonable business and not earning Rs. 20,000/- per month and he has no 2 capacity to pay the E.P., amount. The First Judgment Debtor has been suffering from Jaundice and liver associated disease for the past two years and not in a position to attend any work to earn money. He is depending upon his mother and sister. The first Judgment debtor is not in a position to maintain his family. He has no dishonest intention to evade the payment. The award was obtained behind back the Judgment Debtor. The Judgment debtor No.1 is initiating steps to get the exparte order set aside by filing petition before Arbitration Tribunal. At no point of time the Judgment Debtor NO.1 demanding the Judgment Debtor for repayment. Hence E.P., is liable to be dismissed.

4. Now, the Point for consideration is:

“Whether the petitioner is entitled to attach the movable property for realization of E.P., amount ?”

5. In this petition , on behalf of petitioner, P.W.1 was examined and Ex. P1 to P4 are marked. On behalf of respondents , R.Ws. 1 and 2 were examined and no documents are marked.

6. Heard.

7. Point: To prove that the Judgment Debtor has means, the decree holder is examined as P.W.1. The suggestion of the Judgment Debtor is the Judgment debtor has no such movables mentioned in the schedule. The Judgment Debtor also stated the same in his evidence but stated that he has no objection to attach such items if they are in his house. Since these are movable properties we cannot say whether those are available in the house or not. There will not be any documents for title to prove that the Judgment Debtor owns such items. Hence the availability of item is sufficient to attach the property. The Judgment Debtor also cross examine that the decree holder never demanded the Judgment Debtor for the payment but decree holder stated that he personally met the first judgment debtor and demanded for the E.P., amount. Ex.P3 and P4 are the legal notices issued to the Judgment Debtors 1 and 2 but those are returned as refused. Hence the decree holder issued a legal notice to the Judgment Debtor but they wantonly refused to receive the same. When a notice is sent to the address of the Judgment Debtor, whether it is served or not it amounts constructive service. The Judgment Debtor admitted that the address mentioned in the notice is of him. That is why the decree holder sent a legal notice to the correct address of the Judgment debtor and it is returned as refused. That is why it is proved that the decree holder met the Judgment debtor for repayment for the award. Judgment Debtor also stated that he has been suffering from Jaundice and other liver related disease. The Jaundice itself is liver related disease. The judgment debtor in his evidence stated that he has not been doing any business and suffering from jaundice. He used to ply 3

TATA Ace transport service for the transportation of passengers.

8. R.W.2 also stated that he does not know whether the schedule items are there in the house of first Judgment debtor. He also stated that first Judgment Debtor underwent operation. The first Judgment debtor did not say that he underwent operation but this witness stated that he underwent operation. Except the said problem, he has no other problem to him. That is why the jaundice and liver disease of Judgment debtor is not correct.

9. From the above evidence it is clear that the decree holder obtained award and also issued legal notice demanding payment but Judgment debtor neglected. Though he denied that such items are not there in the house since they are movables they can attach if they are available. If they are not available they cannot be attached. The decree holder stated that those items are there in the house of Judgment Debtor and Judgment Debtor is stated that those items are not there in his house. However it is stated that if the items are there it can be attached. Hence attachment warrant can be issued to realize the E.P., amount.

10. In the result, the petition is allowed .

Dictated to the Assistant, transcribed by her, Corrected, signed and

pronounced by me in the Open Court, this the 1stof May , 2015.

sd/-/N.Rajya Lakshmi

SENIOR CIVIL JUDGE,

PUTTUR.

APPENDIX OF EVIDENCE

witnesses examined

For petitioner

P.W.1: P.Rajasekhar

For Respondent ::

R.W.1: C.Hari Babu R.W.2: B.Chinnabba Naidu Exhibits marked

For Petitioner :

Ex.P1: Arbitration award Ex.P2: Office copy of legal notice and postal receipt dt: 28-05-2014 Ex.P3: Returned postal cover of 1st Judgment Debtor.

Ex.P4: Returned postal cover of 2nd Judgment Debtor.

For Respondent ::: N I L ::

i/d.N.R.L.

SCJ,

PTR.

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