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IN THE COURT OF SENIOR CIVIL JUDGE ::: JANGAON
Friday, the 28th day of April, 2023
Present: Sri P. Anjaneyulu,
Senior Civil Judge,
Jangaon
O.S.No.28 of 2014
Between:
Lakavath Hanumanthu, S/o: late Jaggu Ram, Age:40 years, Occ: Agriculture, R/o: T.B. Thanda, H/o: Regadi Thanda village, Zaffargadh mandal, Warangal District.
...Plaintiff
And
1. Lakavath Kamili, W/o: late Jaggu Ram, Age:60 years, Occ:Housewife, R/o:Thurpu thanda, H/o: Madhapur village, Devaruppula mandal, Warangal District.
2. Bhukya Gangamma, W/o: Bitchya, Age: 60 yrs, Occ: Housewife, R/o: Deshi thanda village, Station Ghanpur mandal, Warangal District.
3. Banoth Ammi, W/o Sundar, Age: 58 yrs, Occu: Housewife, R/o: Shankar thanda, H/o: Regadi thanda, Zaffardadh mandal, Warangal District.
4. Lakavath Venkat Ram, S/o: late Jaggu Ram, Age: 56 yrs, Occu: Agriculture, R/o Dubba thanda, H/o: Madhapur village, Devaruppula mandal, Warangal District.
5. Lakavath Jogya, S/o: Late Jaggu Ram, Age: 52 yrs, Occu: Agriculture, R/o: Thurpu thanda, H/o: Madhapur village, Devaruppula mandal, Warangal District.
6. Bhukya Iylamma, W/o: Mangya, Age: 35 yrs, Occu: Housewife, R/o: T.B. Thanda, H/o: Regadi Thanda village, Zaffargadh mandal, Warangal District.
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7. Lakavath Laxman, S/o: late Jaggu Ram, Age: 33 yrs, Occu: Housewife, R/o: Thurpu thanda, H/o: Madhapur village, Devaruppula mandal, Warangal District.
8. Bhukya Bujjamma, W/o: Lakpathi, Age: 30 yrs, Occu: Government employee, R/o: Thurpu thanda, H/o: Madhapur village, Devaruppula mandal, Warangal District. …. Defendants -o0o-
This suit is coming before me on 20/04/2023 for final hearing in the presence of Sri G. Naga Rajeshwar Rao, counsel the plaintiff and of M.A. Azar, counsel for defendant Nos.1 to 8 and upon hearing both sides and perusing the material on record and having stood over for consideration till this day, the Court delivered the following :
:: J U D G M E N T ::
The plaintiff herein filed the suit for partition and separate possession of the agricultural land situated at Madapur village of
Devaruppula mandal and also at Mylaram village of Palakurthy mandal, which are clearly described under Item Nos.1 to 4 of the suit schedule appended to the plaint, hereinafter referred to as “suit schedule lands” against the defendant Nos1 to 8 and also for passing a preliminary decree allotting 1/9th share in favour of the plaintiff.
2.The brief averments of the plaint are that:
The plaintiff is the brother of defendant Nos2 to 8 and defendant No-1 is the mother of plaintiff and defendant Nos2 to 8 and father of the plaintiff namely Jaggu Ram died on 13/08/2011 3 of 28 leaving the plaintiff and defendant Nos1 to 8 as his legal-heirs and successors of his estate. The father of the plaintiff succeeded the suit schedule items No-1 to 4 properties during his life time and he was the pattadar, owner and possessor of the suit schedule lands and his name was mutated in the Revenue Records, as such the suit schedule lands are the ancestral joint family properties of plaintiff and defendant Nos1 to 8. After the death of their father, the plaintiff and defendant Nos1 to 8 succeeded the suit lands by way of succession and since the date of acquiring the properties, they are in joint possession and enjoyment of the same by cultivating the said lands with the assistance of each other and incurred amounts equally to raise crops. The joint cultivation and distribution of agricultural yields continued till 2012. The plaintiff further stated that the defendant Nos1 to 8 changed their attitude and behaviour towards him and started avoiding the plaintiff. Several times the plaintiff demanded the defendants for partition of the suit schedule lands into equal shares, but all the defendants by colluding with each other postponed the matter on one pretext or the other.
Several panchayats were also held before the elders, but the defendants did not listen to the advise of the elders for partition of the suit lands in favour of 3rd parties without any exclusive rights 4 of 28 over the suit lands, but only to harass the plaintiff and to take away the legitimate share of the plaintiff. The plaintiff stated that he being
Tribe he is governed by Indian Succession Act and he is having equal share in the suit schedule properties along with defendant Nos1 to
8. On 02/10/2013 and 13/10/2013 the plaintiff approached the defendants for partition of the suit lands into equal shares and allotment of 1/9th share to him, but the defendants denied for partition and allotment of share to the plaintiff and threatened him with dire consequences. Hence, the suit.
3.The defendant Nos4,5 and 7 filed a common written statement admitting the relationship of the plaintiff and the defendants. The defendants denied the other pleas of the plaintiff that the father of the plaintiff succeeded the suit lands during his life time and that his name was mutated in the Revenue Records as pattadar and possessor of the suit lands and since then the suit lands are the ancestral joint family properties of the plaintiff and the defendant Nos1 to 8 and that after the death of their father, the plaintiff and defendants have succeeded the property by way of succession and since then they are in joint possession of the same by cultivating the lands and sharing the agricultural yields among them till 2012. The defendants contended that at the time of 5 of 28 marriage, the plaintiff went as illatum son-in-law and as such, the question of joint possession and enjoyment of the suit lands, does not arise and there is no nexus among the family of the plaintiff and the defendants and hence, the question of incurring amounts jointly and succeeding the suit lands and sharing of yields among them, does not arise.
4.The defendants further denied the plea of the plaintiff that the defendants changed their attitude and behaviour towards the plaintiff and started avoiding the plaintiff by colluding with each other and further denied that the panchayats were held before the elders and the defendants did not listen to the advise of the elders for partition of the suit lands and allotment of the share to the plaintiff. They further denied that they are trying to alienate the suit lands to 3rd parties to take away the share of the plaintiff in the suit lands. When the suit lands are not the joint family properties of the plaintiff and defendants, the question of demand of partition by the plaintiff, does not arise. The defendants denied that that plaintiff approached the defendants and demanded for partition of the suit lands on 02/10/2013 and 13/10/2013 and for allotment of 1/9th share. The defendants further stated that during the life time of the father of the plaintiff, he performed the marriage of the children and 6 of 28 he died on 12/08/2012. At the time of marriage of defendant Nos.2, 3 6 and 8, they were given sufficient lanchanas and articles and as such they never raised any objection or demand for partition of the properties acquired or inherited by late Jagram among the family members. The marriage of the plaintiff was performed at the age of 12 years and he went as illattum son-in-law to the family of Bhukya
Budhya and since then he is residing there without any nexus with the defendants at any time. The defendants also stated that in the year 1993 an oral partition was effected among the defendant
Nos.1,4,5 and 7 and they were allotted lands as mentioned in the
Tabular form in the written statement. Since, the date of acquiring the properties, defendant Nos.1,4,5 and 7 are in continuous and uninterrupted peaceful possession and enjoyment of the above properties and they are cultivating the above lands and enjoying the fruits by raising crops. The Revenue Authorities after thorough enquiry and based on physical possession of the defendants, recorded their names in the concerned Revenue Records and issued pattadar pass books and title deeds in their favour. The defendants further stated that in the year 1997, the plaintiff approached the defendants and demanded for partition of the properties acquired from late Jagram, but as the defendants already settled their lands 7 of 28 among themselves, the defendants have paid some amounts to the plaintiff with which the plaintiff purchased the landed property at
Sagaram village in Sy. No.271/A to an extent of Ac.03-00 gts of land and the same is standing in the name of plaintiff and his son. He further stated that for the needs and necessities of defendants while alienating some of the suit land, the plaintiff signed as one of the attestors in the sale transaction and the plaintiff also executed the documents for proper and better convenience of title in favour of the defendants to 3rd parties. In spite of the same, in order to harass the defendants and to cause loss to them and to gain wrongfully, the plaintiff filed the present suit without any basis. D7 is residing at
Hyderabad and eaking out his livelihood and he has given the land to 3rd parties on lease and getting rent of Rs.12,000/- per annum and apart from that the defendants are having other lands in various survey numbers and enjoying the same. They stated that the suit schedule lands are never in joint possession and enjoyment of the plaintiff and defendants prior to filing of the suit or as on the date of filing the suit. As the plaintiff was also paid sufficient amount and in view of execution of required documents for proper and better convenience of title in favour of the defendants, and in favour of 3rd parties, the plaintiff is not entitled to seek partition of the suit lands.
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The plaintiff filed suit only with an intention to harass the defendants by playing fraud and to exercise the process of Law and the plaintiff suppressed the facts, which are pleaded by the defendants to gain wrongfully. The defendants stated that the suit is under valued and the court has no pecuniary jurisdiction. Hence, the defendants prayed to dismiss the suit with costs.
5.The defendant Nos.1,3,6 and 8 filed memo adopting the written statement filed by D4,5 and 7.
6.On considering the pleadings of both the parties, the following issues have been framed for trial:
1. Whether there is any oral partition among D1, 4, 5 and 7 in the year 1993 as stated by the defendants?
2. Whether the suit schedule property is liable for partition, as prayed for?
3. Whether the plaintiff is entitled for 1/9th share for the suit schedule property?
4. Whether the court fee paid by the plaintiff is correct?
5. Whether the suit having any cause of action, as prayed for?
6.Whether the suit is maintainable, as prayed for?
7. To what relief?
7.In order to prove his case, on behalf of the plaintiff, the plaintiff himself examined as PW.1 and got marked Exs.A1 to A9 documents. The plaintiff also got examined PWs2 to 4, who are the 9 of 28 3rd parties in support of his case. On the other hand, the defendant
No-7 was examined as DW1 and got marked Exs.B1 to B21. The defendants have examined DWs2 and 3 on their behalf.
8.Issue No-1:
“Whether there is any oral partition among D1, 4, 5 and 7 in the year 1993 as stated by the defendants?”
The plea of the plaintiff in the suit filed by him for partition and separate possession of 1/9th share is that his late father Jagram acquired the suit schedule property during his life time and he died in the year 2012 by leaving himself, D1, who is his mother, D2,
D3, D6 and D8, who are his sisters and D4, D5 and D7, who are his brothers. The plaintiff further pleaded that all the suit schedule properties i.e., item Nos.1 to 4 are the joint family properties of plaintiff and defendants and the father of the plaintiff died in the year 2012 by leaving them as his successors and their father never executed any will deed, and therefore, they are entitled for 1/9th share each.
9. On the other hand, the defendants contended that there is no dispute that their late father Jagram acquired the suit schedule properties during his life time and in the year 1993 during life time 10 of 28 of Jagram oral partition was taken place among D1, D4, D5 and D7, who are the mother and brothers of plaintiff respectively. They further contended that after the said oral partition, D1, D4, D5 and
D7 are in possession of their respective shares by cultivating it. The defendants further contended that the plaintiff went as illattum son- in-law to T.B. Thanda after his marriage at the early age of 12 years and since then he is residing there without any nexus to the defendants. They also contended that late Jagram had settled the shares of his daughters i.e., D2, D3, D6 and D8 by presenting cash, gold and other articles at the time of their respective marriages.
Further, in the year 1997, when the plaintiff approached the defendants and demanded for partition of the properties acquired by late Jaggu Ram, the defendants have paid some amounts to the plaintiff, through which the plaintiff purchased landed properties at
Sagaram village in Sy.No.271/A to an extent of Ac.03-00 gts. They also contended that while the defendants were alienating some of the properties to meet their financial necessities, the plaintiff has signed as one of the attestors of the sale deed and further, the plaintiff also executed a document for proper and better convenience of title in favour of other defendants and also to the 3rd 11 of 28 parties. Having knowledge about the partition and execution of documents, the plaintiff is demanding for partition and claiming separate share.
10.A perusal of the contentions of both the parties, it is not in dispute that the suit schedule properties are self-acquired properties of late Jagram, who died in the year 2012. It is also not in dispute that the plaintiff went as illattum son-in-law to T.B.
Thanda at the time of his marriage.
11.The plaintiff himself examined as PW1 by filing his chief affidavit, which is supporting the plaint averments. The plaintiff also got marked Exs.A1 to A9 documents. Ex.A1 is the pahani for the year 1990-91 pertaining to the land at Madapur village, Ex.A2 is the pahani for the year 1995-96 pertaining to the land at Madapur village, Ex.A3 is the pahani for the year 1980-81 pertaining to the land at Mylaram village, Ex.A4 is the pahani for the year 1985-86 pertaining to the land at Mylaram village, Ex.A5 is the pahani for the year 1990-91 pertaining to the land at Mylaram village, Ex.A6 is the pahani for the year 1995-96 pertaining to the land at
Mylaram village, Ex.A7 is the original death certificate. Ex.A8 is the property valuation certificate issued by Sub-Registrar, Kodakandla 12 of 28 for the village of Madhapur. Ex.A9 is the valuation certificate issued by Sub-Registrar, Kodakandla for the village of Mylaram.
12. A perusal of Exs.A1 to A6 the certified copies of pahanies show that they are pertaining to the year 1995-96 and prior thereto.
The plaintiff has not filed the subsequent pahanis till filing of the suit in the year 2014 or till the death of his father in the year 2012.
13.On the other hand, the defendants filed Exs.B1 to B21 in support of their contention. Ex.B1 is the original simple sale deed, dt.10/05/1981, which was impounded by the District Registrar,
Warangal, and it shows that D4 Lakavath Venkat Ram sold the land in Sy. No.127/C, which is one of the suit survey numbers, in favour of Banoth Jagram situated at Mylaram village. Ex.B2 is the original simple sale deed, dt.01/05/1998, which shows that D4 also sold the land in Sy. No.128/D in favour of Lakavath Alia situated at Mylaram village. Ex.B3 is the original simple sale deed, dt.30/01/1988, where-under D4 sold the land in Sy. No.127 to one Lakavath Raghu situated at Mylaram village. Ex.B4 is the original simple sale deed, dt.06/04/1993 in respect of the land situated at Madhapurm village in favour of Lakavath Mangya. Ex.B5 is the original deed of exchange, dt.17/05/2002 executed by Lakavath Laxman (D7).
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Ex.B6 is the original simple sale deed, dt.12/07/1998 executed by lakavath Jogya/D5 in favour of Lakavath Venkat Ram/D4 in respect of land in Sy. No.327. Ex.B7 is the original simple sale deed, dt.31/05/1999 executed by D7 in favour of Lakavath Mangya in respect of the land situated in Sy.Nos.328, 313 of Madhapur village.
Ex.B8 is the original simple sale deed, dt.24/05/1997. Ex.B9 is the original simple sale deed, dt.16/07/1998 executed by D7 in favour of
Lakavath Deva. Ex.B10 is the original relinquishment deed, dt.24/04/1997 executed by the plaintiff in favour of D4, D5 & D7 in respect of the land in
Sy. No.311. Ex.B11 is the original pattedar pass book vide patta No.88 stands in the name of D4. Ex.B12 is the original pattedar pass book vide patta No.173 stands in the name of Lakavath Devu Singh, S/o.Venkat
Ram. Ex.B13 is the original pattedar pass book vide patta No.429 stands in the name of Lakavath Jogya/D5. Ex.B14 is the original pattedar pass book vide patta No.427 stands in the name of Lakavath Hatchi, wife of
D5. Ex.B15 is the original pattedar pass book vide patta No.437 stands in the name of Lakavath Ravi, S/o D5. Ex.B16 is the original pattedar pass book vide patta No.436 stands in the name of D7. Ex.B17 is the original receipt, dt. 15/03/2003. Ex.B18 is the new pattedar pass book stands in the name of D5. Ex.B19 is the new pattedar pass book stands in the name of wife of D5 (Lakavath Hatchi). Ex.B20 is the new pattedar pass book stands in the name of Lakavath Ravi, son of D5, and Ex.B21 is the 14 of 28 new pattedar pass book stands in the name of D7.
14.The learned counsel for the plaintiff submitted that the suit schedule properties remained in joint possession as on the date of filing of suit and when the plaintiff demanded for partition and allotment of his share, the defendants refused for it and denied the partition on the ground of oral partition took place in the year 1993 itself.
15. The learned counsel for the plaintiff relied on the decision of
Orrissa High Court in Smt. Annapurna Barik Dei and another Vs. Smt Inda
Bewa and Others reported in (1995) AIR (Orissa) 273, wherein it is held that execution of deed by illiterate pardanashin old lady and where a person sets up the validity of a deed executed by a pardanashin or illiterate lady, the onus is upon him to prove that she had understood the nature and effect of her act.
16.He also relied on the decision of Hon’ble Supreme Court of India in Shasidhar Vs Ashwini Uma Mathad reported in (2015) 2
SCJ 620, wherein it was held that in a suit for partition and separate possession of the share of the plaintiff it is necessary for the court to examine nature and character of properties in the suit, how devolution of his interest in property took place consequent upon his death on surviving members of family and in what proportion , 15 of 28 whether the properties in suit are capable of being partitioned effectively and if so, in what manner and lastly, whether all properties are included in suit and all co-sharers, co-owners or joint-owners are made parties to the suit.
17.He also relied on the decision of Hon’ble High Court of
Judicature at Hyderabad, in Reddi Radha Krishna Vs. Reddy Lakshmi and others reported in 2013 (5) ALT 312, which is to the effect that though the plaintiff pleaded that there was partition between the family members, and claimed to 1/3rd share in the properties, there is no partition deed evidencing the same and no other satisfactory evidence.
18.He also relied on the decision of Hon’ble High Court of
A.P., in Vulavakayala Laxmi and others Vs Dhulipudi Veeraswamy and others reported in (2007) 2 ALT 550, wherein it was held that whenever a prior partition is pleaded in a suit for partition, the burden is heavily upon the one, who pleads it.
19. He finally relied on the decision of Hon’ble High Court of
Andhra Pradesh in Chilakani Venkata Rao Vs. Ch. Laxman Rao and others reported in (2006) 4 ALT 27, where-in it was held that it is well known that in a suit for partition, all parties, who have a share 16 of 28 in the properties to be partitioned, would be in the position of plaintiffs and can take all the pleas, which a plaintiff can take and so their written statements also would be in the nature of plaints.
20.On the other hand, the learned counsel for the defendants strongly contended that the suit schedule properties were already orally partitioned in the year 1993 and the share of the plaintiff was settled in the year 1997 when he demeaned for partition of the suit lands, and further he also executed documents in favour of some of the defendants and also attested some of the documents, wherein the transactions in respect of some of the suit schedule properties took place and further the plaintiff himself admitted about the oral partition between properties. He also submitted that in the above circumstances, the plaintiff cannot question for partition of the suit schedule properties among the parties.
21.As mentioned above, the plaintiff left the village as illattum son-in-law at the time of his marriage and admittedly till now he is residing at T.B. Thanda to which he went as illattum son- in-law. The plaintiff also pleaded that the defendants failed to pay his share in the joint family properties and hence, he demanded for 17 of 28 partition, which wasdenied by the defendants. Though, the plaintiff stated in his chief examination that the suit schedule properties were joint family properties and no partition took place, his admission in the cross-examination clearly goes to show that there was oral partition of the joint family properties.
22.PW1 in his cross-examination admitted that he does not now the survey numbers of suit schedule properties and he cannot say the extent of land in the suit survey numbers, but the total extent of land is Ac.16-01 gt. He clearly admitted that in the marriages of D2, D3, D6 and D8, who are his sisters, his father has given sufficient dowry and amounts including articles and since the date of their marriage, they are residing at their respective in-laws’ houses and further they never asked any income arrived from the suit schedule properties. PW1 categorically admitted that D2, D3 ,
D6 and D8 are not having any right in the suit schedule property.
Again he also admitted that since the date of the marriage till so far, he never demanded his brothers for the income arrived from the suit schedule properties and he further added that he demanded for partition as the defendants have not paid any income arrived from it. PW1 admitted that last year the matter was placed before the 18 of 28 elders, in the panchayat, but no resolution was passed. He stated that he does not know whether the sub-division numbers were given by the Revenue Officials in the year 1995-96 onwards. PW1 clearly and categorically admitted that in the year 1993 itself, the suit schedule properties were partitioned among brothers and since then they are cultivating their respective lands. He further admitted that
D5, and D7 got exchanged their respective parts of lands for the convenience and they executed a document on 17/05/2002 to that effect. PW1 was confronted Vakalathnama and the plaint by the counsel for the defendants, but PW1 disowned the signatures available on them. He also admitted that the land situated at
Madhapur village to an extent of Ac.04-12 gts under Item No-3 of suit schedule property, was already sold away by the defendants.
23. As pleaded by the plaintiff by relying on the judgement of
Hon’ble High Court of A.P. in Vulavakayala Laxmi and others Vs
Dhulipudi Veeraswamy referred above, the burden heavily lies on the party, who pleads it. In the case on hand, the defendants pleaded that prior partition was taken place between the family members.
Therefore, the burden lies on the defendants to prove the prior partition between the plaintiff and defendants.
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24. The defendant No-7 was examined as DW1 by filing the chief affidavit and the contents of it are in support of the written statement. DW1 in the chief affidavit clearly stated about the shares fell to share of each defendant and also transactions took place after the oral partition. The defendants also filed simple sale deeds in respect of the transactions between the plaintiffs and defendants and 3rd parties in respect of the suit schedule properties in the year 1990 onwards and all those simple deeds were impounded by the
District Registrar, Warangal. A perusal of Ex.B8, which was impounded by the District Registrar, Warangal, shows that the plaintiff executed the said document on 24/05/1997 in favour of
Lakavath Jogya/D5 in respect of the land in Sy. No.327, which is one of the suit survey number. Ex.B6 is impounded sale deed, dt.12/07/1998 shows that D4 executed it in favour of D5 for land in suit survey number 327, and the said document was attested by the plaintiff and two others. Ex.B10 is the document, dt.24/04/199,7 whereunder the plaintiff received the amount of Rs.6,500/- in respect of the sale of land from D4. Further, Ex.B17 receipt, dt.13/03/2003 shows that it was executed by the plaintiff in receipt of Rs.6,500/- by D4 and Rs.5,100/0 by plaintiff along with delivery 20 of 28 of possession in favour of D4. By relying on the above documents, apart from the admission of PW1 in his cross-examination that oral partition took place and the defendants are in possession of their respective shares of lands, the defendants argued that they discharged the burden of proving that there was oral partition in the year 1993.
25.From a perusal of the documents mentioned above, it is very much clear that the plaintiff executed those documents by selling or relinquishing his share of property and receiving amount from the defendants in the year 1997-98. Though, the plaintiff denied having executed those documents and pleaded that the plaintiff is an illiterate and a rustic villager, the plaintiff failed to take steps to show that the signatures on the said documents do not belong to him. The plaintiff did not plead that the said signatures were either forged or the documents are created for the purpose of suit. The counsel for the defendants when suggested that the transactions under the above documents were made in favour of the defendants, plaintiff pleaded ignorance on the same. At one stage, the plaintiff denied his signatures on plaint and vakalath when they were confronted by the counsel for the defendants.
26.In view of the above documents of the defendants, 21 of 28 wherein the plaintiff is the executor and attestor, it can be inferred that the suit schedule properties were partitioned orally in the year 1993 and therefore, the plaintiff sold or relinquished his share of the land to the defendants in the year 1997-98 by receiving money as pleaded by the defendants. The other documents Exs.B-1, B-2, B-3,
B-4, B-5, B-7, B-9, which were impounded clearly shows that D4, D5 and D7 sold or purchased the lands during 1990 in some of suit survey numbers. Since the plaintiff failed to prove that he did not execute those documents, it cannot be said that the suit schedule properties are still in jointness till the date of filing of the suit. On the other hand, the defendants proved that oral partition took place in the year 1993 after plaintiff left the village as illattum son-in-law, and when the plaintiff demanded for his share in the properties, subsequently, D4, D5 and D7 settled the share of plaintiff by paying money. The plaintiff himself admitted as PW1 that his sisters as defendants have no share in the suit schedule properties and this itself shows that there was partition of the suit schedule properties within the knowledge of the plaintiff.
27. In view of execution of documents by the plaintiff in favour of defendants relinquishing his right and by receiving amounts, it cannot be presumed that there was jointness of suit 22 of 28 schedule properties, and severity of jointness can be inferred whenever the plaintiff accepted the amounts and executed the documents in favour of the defendants. Once severity of jointness took place within the knowledge of the plaintiff, the plaintiff cannot be permitted to plead that the suit schedule properties are still the joint family properties.
28. The learned counsel for the plaintiff argued that the plaintiff and defendants being tribes, they are governed by the
Indian Succession Act and therefore, after the death of late Jagram the suit schedule properties evolved upon the plaintiff and defendants. Since, the defendants proved that the partition took place during the life time of late Jagram and the same was accepted and acknowledged by the plaintiff in the year 1997 and subsequently by receiving amounts, the plea of the plaintiff cannot be considered. In view of the above discussion, the decisions relied on by the counsel for the plaintiff as cited above, are not applicable to the facts of the case.
29. Further plea of the plaintiff is that the defendants alienated some of the suit schedule properties to 3rd parties. The plaintiff, for the reasons best know to him, did not add the 3rd parties to the suit, and this itself also shows that the plaintiff has knowledge 23 of 28 about the partition between the brothers.
30.Therefore, in view of the above discussion, it can be held that there was oral partition among D1, D4, D5 and D7 in the year 1993 as pleaded by the defendants. Hence, the issue No-1is answered accordingly.
31.Issue Nos.2 and 3:
Whether the suit schedule property is liable for partition,
as prayed for?
And
Whether the plaintiff is entitled for 1/9th share for the
suit schedule property?
Under issue No-1, it was held that the defendants have proved that there was oral partition among D1, D4, D5 and D7 in the year 1993 and further it was proved that the plaintiff received amounts in the year 1997 and subsequently from the defendants by relinquishing his share. Therefore, it cannot be said that the suit schedule properties are liable for partition, as prayed by the plaintiff.
Therefore, in view of the above observation it can be held that the plaintiff is not entitled for 1/9th share in the suit schedule properties, as prayed for. Both the issues are answered accordingly.
32.ISSUE No.4:
Whether the court fee paid by the plaintiff is correct?
The plaintiff filed the suit for partition and separate possession 24 of 28 of 1/9th share in the suit schedule lands. The valuation and court fee paid by the plaintiff shows that he valued the suit properly and the court fee of Rs.200/- as per Sec.34 (2) of Court Fee and Suit
Valuation Act, 1956 paid by him is sufficient. Hence, issue is answered accordingly.
33.Issue Nos-5 & 6:
Whether the suit having any cause of action, as prayed for?
&
Whether the suit is maintainable, as prayed for?
As held under issue No-1, it was observed that the plaintiff settled the shares in the year 1997 by receiving amounts from the defendants and thereby the severity of jointness took place. The plaintiff pleaded that cause of action for the suit arose on 02/10/2013 and 13/10/2013 when the defendants avoided his legitimate share in the suit schedule properties and allotment of 1/9th share. Since the defendants proved that the partition took place in the year 1993 within the knowledge of the plaintiff and the plaintiff acknowledged the same by executing the documents, it cannot be said that the plaintiff again demanded the defendants for partition of the suit schedule lands and hence, it can be held that there is no cause of action for filing the suit.
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To what relief?
In view of the findings on issue Nos-1 to 3, it is held that the plaintiff is not entitled for partition of suit schedule lands and separate possession of 1/9th share in it.
35.In the result, the suit of the plaintiff is dismissed. Without costs.
(Dictated to the Stenographer Gr-II, corrected and pronounced by me in the open court on this the 28th day of April, 2023).
SENIOR CIVIL JUDGE
JANGAON
APPENDIX OF EVIDENCE ::
(Witnesses Examined) FOR PLAINTIFFS :FOR DEFENDANTS : PW1: Lakavath Hanumanthu DW-1:Lakavath Laxman
PW2: Guguloth Yakub DW-2: Lakavath Lachiram
PW3: Bhukya Ravinder DW-3: Lakavath Bheelu
EXHIBITS MARKED
FOR THE PLAINTIFFS : Ex.A1 is the pahani for the year 1990-91 pertaining to the land at Madapur village.
Ex.A2 is the pahani for the year 1995-96 pertaining to the land at Madapur village.
Ex.A3 is the pahani for the year 1980-81 pertaining to the land at 26 of 28
Mylaram village.
Ex.A4 is the pahani for the year 1985-86 pertaining to the land at Mylaram village.
Ex.A5 is the pahani for the year 1990-91 pertaining to the land at Mylaram village.
Ex.A6 is the pahani for the year 1995-96 pertaining to the land at Mylaram village.
Ex.A7 is the original death certificate.
Ex.A8 is the property valuation certificate issued by Sub-Registrar, Kodakandla for the village of Madhapur.
Ex.A9 is the valuation certificate issued by Sub-Registrar, Kodakandla for the village of Mylaram.
FOR DEFENDANTS
Ex.B1 is the original simple sale deed, dt.10/05/1981, which was impounded by the District Registrar, Warangal.
Ex.B2 is the original simple sale deed, dt.01/05/1998.
Ex.B3 is the original simple sale deed, dt.30/01/1988.
Ex.B4 is the original simple sale deed, dt.06/04/1993.
Ex.B5 is the original deed of exchange, dt.17/05/2002.
Ex.B6 is the original simple sale deed, dt.12/07/1998.
Ex.B7 is the original simple sale deed, dt.31/05/1999.
Ex.B8 is the original simple sale deed, dt.24/05/1997.
Ex.B9 is the original simple sale deed, dt.16/07/1998.
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Ex.B10 is the original relinquishment deed, dt.24/04/1997.
Ex.B11 is the original pattedar pass book vide patta No.88.
Ex.B12 is the original pattedar pass book vide patta No.173.
Ex.B13 is the original pattedar pass book vide patta No.429.
Ex.B14 is the original pattedar pass book vide patta No.427.
Ex.B15 is the original pattedar pass book vide patta No.437.
Ex.B16 is the original pattedar pass book vide patta No.436.
Ex.B18 is the new pattedar pass book stands in the name of D5.
Ex.B19 is the new pattedar pass book stands in the name of wife of D5 Lakavath Hatchi.
Ex.B20 is the new pattedar pass book stands in the name of Lakavath Ravi, son of Jogya.
Ex.B21 is the new pattedar pass book stands in the name of D7
Sd/-xxxxxxxx
SENIOR CIVIL JUDGE
JANGAON
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