O.S.NO.66/2000 1 Dated : 10-09-2025
IN THE COURT OF THE ADDITIONAL CIVIL JUDGE ( SENIOR DIVISION)
(FAST TRACK COURT) : ANAKAPALLE
Present:- P.Nageswara Rao,
Principal Civil Judge (Senior Division), Anakapalle
FAC: Principal Civil Judge (Senior Division) (FTC), Anakapalle
Wednesday, this the 10th day of September, 2025
O.S No.66/2000
Between:
1.Konathala Mahalaxminaidu
S/o Rajarao, Age 35 years,
Cultivation,
2.Konathala Parameswararao ( Died )
3.Konathala Gangadhararao
S/o Rajarao, Age 31 years,
Cultivation,
4.Konathala Raju.
S/o Rajarao,
Age 37 years,
Cultivation, (Plaintiff No.1, 3 and 4 are residents of Gavarapalem, Anakapalli Town and
Mandalam , Visakhapatnam District.
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5. Konathala Laxmi
W/o Rajarao
Aged 70 years
6. Konathala Annapurna
W/o Parameswara Rao
Aged 47 years
7. Konathala Vamsi
S/o Parameswara Rao
Aged 25 years
8. Konathala Vyshnavi
D/o Parameswara Rao
Aged 23 years (Plaintiffs No.5 to 8 are residents of Satakampattu, Near Gowramma temple,
Gavarapalem, Anakapalli town, Visakhapatnam District).
(Plaintiffs No.5 to 8 are added as legal representatives of deceased 2nd plaintiff as per orders in IA No.34/2025 dated:11-08-2025).
.…Plaintiffs.
And :-
1.Konathala Rajarao
S/o Mahalaxmi,
Age 66 years,
Cultivation,
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Satakampattu,
Near Gowramma temple,
Govarapalem,
Anakapalli Town,
Visakhapatnam District.
2.Konathala Krishnarao ( Died )
3.Konathala Venugopalarao ( Died )
4.Konathala Koteswararao ( Died )
5.Konathala Mahalaxminaidu ( Died )
6. Dadi Ramarao (Naidu)
Ex-councellor,
Kusuma Haranadh Baba
Mandiram’ side house,
Aggimarrichettu street,
Govarapalem,
Anakapalli town ,
Visakhapatnam District.
7. Konathala Mahalaxmamma.
W/o Ramarao, Age 42 years,
House wife, Sattakampattu,
Govarapalem, Anakapalli town ,
Visakhapatnam District.
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8. Konathala Appanna @ Babu.
S/o Late Ramarao,
Age 19 years, Cultivation,
Sattakampattu,
Govarapalem,
Anakapalli Town,
Visakhapatnam District.
9. Konathala Nookaratnam.
W/o Venugopalarao,
Age 50 years,
Household duties,
Racharalla street,
Sattakampattu,
Govarapalem,
Anakapalli town,
Visakhapatnam District.
10. Konathala Chandra,
S/o Venugapalarao,
Age 30 years,
Racharalla street,
Sattakampattu,
Gavarapalem,
Anakapalli Town
Visakhapatnam District.
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11. Konathala Somesh Naidu.
S/o Venugapalarao,
Age 25 years,
Racharalla street,
Sattakampattu,
Gavarapalem,
Anakapalli town ,
Visakhapatnam District.
12. Yellapu Hemalatha,
W/o Chinnarao,
Age 25 years,
House hold duties,
Yelamanchili Town ,
13. Saragadam Bhavani,
W/o Jogarao, Age 33 years,
D.No.31-16-14,
Venkateswara Metta,
Allipuram Area,
Visakhapatnam.
14. Konathala. Lavanya,
D/o late Koteswararao,
Age 25 years,
Near Gowriparameswari Temple,
Satakampattu, Gavarapalem,
Anakapalli Town.
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15. Konatala.Pradeep
S/o late Koteswararao,
Age 23 years,
Near Gowriparameswari Temple,
Satakampattu, Gavarapalem,
Anakapalli Town,
Visakhapatnam District.
16.Konathala Narayanamma,
W/o Late Krishnarao,
Age 60 years,
Satakampattu,
Gavarapalem,
Anakapalli Town,
Visakhapatnam District.
17.Konathala Uma,
S/o Late Krishnarao,
Age 48 years,
Timber Depot,
Ummalada Junction,
Anakapalli town,
18.Konathala Rajarao @ Rajaram,
S/o. Late Krishnarao,
Satakampattu, Gavarapalem,
Anakapalli town,
Visakhapatnam District.
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19.Konathala Ravichandra Kumar (Died)
20.Buddha Gowri,
W/o Joginaidu,
Age 50 years,
Near Peda Nuyyi,
Gavarapalem,
Anakapalli town,
Visakhapatnam District
21.Konathala Varalakshmi,
W/o Late Mahalakshminaidu,
Age 50 years,
Gowramma Temple,
Satakampattu,
Gavarapalem,
Anakapalli Town.
22.Konathala Suresh,
S/o Late Mahalakshminaidu,
Age 27 years,Gowramma Temple,
Satakampattu,Gavarapalem,
Anakapalli Town .
23.Konathala Geeta,
D/o Late Mahalakshminaidu,
Age 20 years,
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Gowramma Temple,
Satakampattu,
Gavarapalem,
Anakapalli Town.
24.Konathala Dhanalakshmi,
W/o Late Ravichandra Kumar,
Age 30 years, Satakampattu,
Gavarapalem area,
Anakapalli Town.
25.Konathala Akhil (Minor)
S/o Late Ravinchandra Kumar,
Age 13 years, Satakampattu,
Gavarapalem area ,
Anakapalli Town. …… Defendants (Defendant No.7 and 8, who are legal heirs of deceased K.Ramarao who is son of
Mahalaxmi , are added per the orders in IA No.265/2005 on 7-8-2006) (Defendant No.9 to 12, who are legal heirs of deceased defendant no.3, are added as per the orders in IA No.207/2008 on 16-11-2012) (Defendants No.13 to 15, who are legal heirs of deceased defendant no.4, are added as per orders in I.A No.32/2016 on 14-9-2017) (Defendants No.16 to 20, who are legal heirs of deceased defendant no.2, are added as per orders in I.A No.59/2018 on 19.08.2019)
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(Defendants No.21 to 23, who are legal heirs of deceased defendant no.5, are added as per orders in I.A No.229/2018 on 22.01.2019) (Defendants No.24 and 25, who are legal heirs of deceased defendant no.19, are added as per orders in I.A.No.320/2018 on 20.11.2018) ( The Defendant No.24 is appointed as guardian for the defendant no.25 who is minor as per orders in I.A No.321/2018 dated.20.11.201, and then the defendant no.25 is attained majority and hence, the defendant no.24 was discharged from the guardianship of the defendant no.25).
This suit coming on 22.08.2025 for final hearing and disposal before me in the presence of V.S.S.R.B.Srinivas, learned counsel for the plaintiffs, and of
Lanka Jagannadham, learned counsels for the defendant no.9 to 12 and 16 to 18, 20, 24 and 25, and M.Jayaram, Advocate for defendant no.13 to 15 and 21 to 23, and the defendant no.1 and 6 to 12 are set-exparte and the matter is having stood over for consideration till this day, this Court made the following : -
JUDGMENT
1.This suit is filed by the plaintiffs no.1 to 4 against the defendants no.1 to 6 initially for preliminary decree seeking partition of the plaint schedule properties into six equal shares by metes and bounds and allot one such share to the 1st defendant on the first instance and later for partition of 1/6th share into five equal shares and allot four such shares to them and for delivery of possession of the same to them after converting the joint possession into separate possession, and further profits and for costs of the suit .
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2.The brief averments of the plaint are –-
That the plaintiffs are brothers and sons of defendant no.1. The defendants no.1 to 5 are brothers and sons of Mahalaxmi. The plaintiffs and defendants no.1 to 5 constitute an undivided Hindu Joint Family governed by Mithakshara school of principles. The plaint schedule properties are the ancestral property of the plaintiffs. Mahalaxmi is the grandfather of plaintiffs and he died during the year, 1989 intestate leaving behind him, the defendants no.1 to 5 as heirs to the property and consequently, the plaintiffs being the sons of defendant No.1 became coparceners and entitled to the property. While the things stood, the defendants no.2 to 4 colluding together without the consent of plaintiffs and defendant no.1, alienated B-schedule property in favour of defendant no.6 against the interest of the family and said sale deed is void and not binding on the plaintiffs. The plaintiffs made several attempts demanding the partition of the family properties through the defendant no.1 and elders. But, the defendants have been postponing the same and did not choose to give full share of produce. The plaintiffs have raised casurina nut in Ac.03.88 cents covered in S.No.149/3 called as “Dibba Polam” in Rajupalem, and the casurina tope was ripe and fit for cutting, and the defendants making preparations for collusively to take away the produce from the fields without giving the the legitimate share to the plaintiffs. Therefore, the plaintiffs demanded for partition of the plaint schedule property. The defendants no.7 and 8 are sons of
Konathala Rama Rao, s/o Mahalaxmi and they are also having share in the plaint schedule property. Hence, the defendant no.7 and 8 are added as parties as per orders in I.A.No.265/2005 dated. 07.08.2006. During the pendency of the suit, defendant no.3 died and then defendants No.9 to 12 are added as legal representatives of the defendant no.3.. After the death of defendant no.4, his legal representatives are added as defendants no.13 to 15. After the death of defendant
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no.2, his legal representatives were added as defendants no.16 to 20. After the death of defendant no.5, his legal representatives were added as defendants no.21 to 23. After the death of defendant no.19, his legal representatives were added as defendants no.24 and 25.
3. On receipt of summons, the defendants no.5 filed written statement and the same was adopted by the defendants no.13 to 15 and 21 to 23 by filing adoption memo, and the defendants no.16 to 20 and 24 and 25 also filed memo adopting the written statement of defendant no.5. The defendants contended that after demise of father of the defendant no.1 to 5 by name Konathala Mahalaxmi, the defendants no.1 to 5 and Konathala Rama Rao approached the elders on 10.12.1988 and requested them for partition of the properties of their father and as per Khararunama Agreement dated. 27.12.1988, the defendants no.1 to 5 and third son of Konathala Mahalaxmi i.e Konathala Rama Rao have partitioned the properties of their father. Since then, they have been enjoying their respective shares with absolute rights and living separately with separate mess. On 17.07.1994, the defendant no.1 issued a publication in Eenadu local addition stating that the properties are joint properties of their family which is false and not correct. The defendants no.2 to 5 and Konathala Rama Rao issued a reply lawyer notice dated.23.07.1994 in Eenadu Daily to the publication issued by defendant no.1 stating that the properties were already partitioned and they are enjoying their respective shares. Hence, the suit is barred by limitation as the plaintiffs failed to file this suit within three years from the date of reply notice i.e 23.07.1994. The 4th defendant sold away some of the properties and mortgaged withthird parties which fell to his share, and knowing fully well the plaintiffs did not show the mortgagees and purchasers as parties to the suit. Hence, the suit is bad for non joinder of necessary parties and the plaintiffs have no right to ask for partition.
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4. The defendant no.2 filed written statement and the same is adopted by the defendant no.16 to 20, 24 and 25 by filing adoption memo. It is the contention of defendant no.2 that he adopted the written statement of defendant no.5. The defendant no.3 died on 07.06.2005 and death information was reported by him to the Court and also the counsel for plaintiffs. But, the plaintiffs did not take any steps to bring the LRs of the deceased defendant no.3 and the suit was abated against the defendant no.3. Hence, the legal representatives of the defendant no.3 are necessary parties to the suit and the suit is bad for non joinder of necessary parties.
The properties were partitioned among the brothers before elders and they have been enjoying their respective shares. Some of the brothers also sold away their shares in the plaint schedule properties to the third parties even before filing of the suit. But, the plaintiffs did not choose to add third parties as parties to the suit. This suit is filed for wrongful gain by colluding with the defendant no.1 who is doing screen play in this suit. The suit is not maintainable under law and sought to dismiss the suit.
5. On perusal of entire record and hearing of parties, the following issues are framed for trial.
Issue No.1. Whether the earlier partition under khararunama agreement dated.
27.12.1988 as pleaded by the defendant no.1 to 5 is true, valid and binding on the plaintiffs?
Issue No.2. Whether all the properties were shown in the plaint schedule?
Issue No.3. Whether the suit is bad for non-joinder of necessary parties?
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Issue No.4. Whether the suit is barred by limitation?
Issue No.5. Whether the plaintiffs are entitled for partition of the plaint schedule properties?
Issue No.6. To what relief ?
6. During the trial, the 1st plaintiff himself examined as P.W.1 but as he did not turn up for cross examination, hence the evidence of PW1 was eschewed. The plaintiff no.3 was examined as P.W.2 and no documents are marked on behalf of the plaintiffs. The plaintiff no.2 died, hence Plaintiffs No.5 to 8 are added as legal representatives of the deceased 2nd plaintiff.
7.On behalf of the defendant no.9 to 12,16 to 18, 20, 24,25, the defendant no.18 was examined as D.W.1 and Ex.B1 to Ex.B7 documents marked.
8. On behalf of the defendant no.13 to 15 and 21 to 23, the defendant no.22 was examined as D.W.2 and one Konathala Rama Surya Narayana and Buddha Satya
Narayana were examined as D.W.3 and D.W.4 and Ex.B8 to Ex.B19 documents were marked. The evidence of D.W.3 was eschewed as he did not turn-up for cross-examination.
9.Heard the oral arguments of both counsels for both parties. The written arguments filed by the plaintiffs and defendants.
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10. The plaintiff no.3 himself examined as P.W.2 and he has filed chief affidavit in lieu of his examination-in-chief, which is nothing but reiteration of his plaint contents. The plaintiffs did not examine any other witnesses and did not mark any documents as exhibits on their behalf. The defendant no.18 himself examined as
D.W.1 and he has filed chief affidavit in lieu of his examination-in-chief, which is nothing but reiteration of his written statement contents. In order to avoid repetition of the facts and for the sake of brevity, I do not intend to extract the contents of chief affidavit of D.W.1. On the other hand, the defendant no.22 himself examined as D.W.2 and he has filed chief affidavit in lieu of his examination-in-chief, which is nothing but reiteration of his written statement contents. In order to avoid repetition of the facts and for the sake of brevity, I do not intend to extract the contents of chief affidavits of P.W.2, D.W.1 and D.W.2.
11. Issue No.2 : Whether all the properties were shown in the plaint schedule.
The counsel for the defendants submitted that the plaintiffs did not add all the joint family properties in the plaint schedule including the share allotted to the defendant no.1 under Kararunama agreement dated.10.12.1988 and partition agreement dated.27.12.1988 for seeking partition and therefore, the suit is bad for non joinder of all joint family properties in the suit and the suit is not maintainable. The counsel for the plaintiffs submitted that after filing of this suit, item no.7 and 8 are added in the plaint A schedule property at the instance of plaintiffs and also plaint C schedule is added in the plaint schedule at the instance of defendants and all the joint family properties are added in the plaint schedule and therefore, the suit is not bad as entire joint family properties are added in the plaint schedule and the suit is maintainable.
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12. On perusal of entire record, it is noticed that the plaintiffs have filed suit for partition of plaint A and B schedule properties and then, item no.7 and 8 are added in the plaint A schedule property at the instance of plaintiffs and thereafter, plaint C schedule property is added in the plaint schedule at the instance of defendants. It is not the contention of defendants that there are some other joint family properties are left and they are not added in the plaint schedule for seeking partition. If any joint family property is left for adding in the present suit, the defendants might have mentioned said joint family property to add the same in the plaint schedule for seeking partition. Hence, it is proved that there is no other joint family property is left for seeking partition. Hence, it is proved entire joint family properties of the plain tiffs and defendants are included in the plaint A, B and C schedule for seeking partition. Hence, this Court felt that all the properties were shown in the plaint schedule.
13. Issue No.3. Whether the suit is bad for non joinder of necessary parties.
The counsel for the defendants submitted that the mortgagees under Ex.B13 to
Ex.B18 mortgage deeds, and the vendee of Ex.B18 sale deed by name K.Suri
Jagga Rao, and the legal heirs of son of K.Mahalakshmi by name K.Rama Rao, are not added as parties in the present suit, and the suit is bad for non joinder of necessary parties. The counsel for the plaintiffs submitted that the mortgagees of
Ex.B13 to Ex.B18 mortgage deeds and the vendee of Ex.B18 sale deed by name
K.Suri Jagga Rao, are only proper parties and they are not necessary parties and the legal heirs of son of K.Maha Lakshmi by name K.Rama Rao are added as defendant no.7 and 8 during the pendency of suit, and an effective and complete decree can be passed in the absence of said mortgagee and purchaser and therefore, the suit is not bad for non joinder of necessary parties.
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14. At this stage, it is relevant to mention Order-1 Rule-9 of CPC. Rule-9.
Mis-joinder and non-joinder. “ No suit shall be defeated by the reason of mis- joinder or non-joinder of parties and the court may in every suit deal with the matter in controversy so far as regards the rights and interest of the parties actually before it. Provided that nothing in this rule shall apply to non-joinder of necessary parties”.
Rule-9 makes it clear that a suit shall be defeated by the reason of non-jonder of necessary party. Now the question is that whether the mortgagees of Ex.B13 to
Ex.B18 mortgage deeds and the vendee of Ex.B8 sale deed by name Suri Jagga
Rao, are necessary parties to the present suit and that whether the present suit is bad for non-joinder of necessary parties or not. It is admitted fact that the present suit is filed for partition by claiming that the plaint schedule property is ancestral property. Hence, all necessary parties must be brought on record for partition of the plaint schedule property between the plaintiffs and defendants.
15. It is admitted fact that Ex.B13 to Ex.B18 documents are mortgage deeds, and the mortgagees of Ex.B13 to Ex.B18 mortgage deeds are not added as parties in the suit, and also the vendee of Ex.B8 sale deed by name Suri Jagga Rao is also not added as party in the present suit. Further, it is noticed that one K.Rama Rao is one of the son of said K.Mahalakshmi and the legal heirs of deceased K.Rama Rao were added as defendant no.7 and 8 in the suit during the pendency of suit. Now a question is a arise the whether the presence of said mortgagees under Ex.B13 to
Ex.B18 mortgage deeds and vendee of Ex.B8 sale deed by name K.Suri Jagga
Rao, is necessary parties to this suit or not. Said mortgagees and purchaser are only proper parties and they are not necessary parties. The co-sharers in the plaint schedule properties are necessary parties and the presence of co-sharers is necessary for an effective and complete adjudication of suit and passing of decree.
It is settled proposition of Law that a suit shall be defeated by the reason of non
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joinder of necessary party only but not mis-joinder or non joinder of proper party.
During cross-examination, DW.1 admitted that all the legal heirs of defendants no.2 to 5 are on record and there are no other heirs of Mahalakshmi to be added.
Hence, the admission of DW.1 has proved that all the legal heirs of deceased defendant no.2 to 5 were brought on record and also no legal heirs of said
K.Mahalakshmi are left to be added. So for as the non adding of vendee of Ex.B8 sale deed and mortgagees under Ex.B13 to Ex.B18 mortgage deeds is concerned, they are only proper parties and they are not necessary parties. Moreover, the equities can be worked out at the time of passing of final decree. Hence, this Court felt that the suit is not bad for non joinder of necessary parties.
16. Issue No.4 : Whether the suit is barred by limitation.
The counsel for the defendants submitted that the defendant no.1 has published a notice in News paper in the year, 1994 by claiming that plaint schedule properties are not partitioned and cautioned to the general public not to advance any loans on said properties and then, the defendant no.2 to 6 and their brother by name
K.Rama Rao have gave reply in paper publication in the year, 1994 itself by claiming that entire joint family properties were partitioned under kararunama agreement dated.10.12.1988 and the plaintiffs have knowledge of refusal for partition in the year, 1994 itself but suit is not filed within 3 years and present suit is filed in the year, 2000 and therefore the suit is barred by limitation. The counsel for the plaintiffs submitted that defendant no.1 never demanded defendant no.2 to 5 for partition of the plaint schedule properties and he only cautioned to the public not to deal with plaint schedule properties and Ex.B7 reply paper publication cannot be construed as notice of denial of partition and said reply paper publication not binding on the plaintiffs.
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17. On perusal of Ex.B6 paper notice, it is noticed that defendant no.1 has published said notice in the news paper claiming that the plaint schedule properties are joint family properties and said properties are not partitioned among himself and his brothers, and cautioned the general public not to advance any loans on said properties. On perusal of Ex.B7 reply paper publication, it is noticed that defendant no.2 to 5 and their brother by name K.Rama Rao have issued said reply paper publication to Ex.B6 paper publication by claiming that entire joint family portieres were partitioned under Kararunama agreement dated.10.12.1988 and also A schedule was allotted to the defendant no.1 towards his share. Ex.B6 paper publication disclosed that defendant no.1 claimed that joint family properties not partitioned and cautioned that public shall not advance loans on said properties but he did not demand for partition of joint family properties under Ex.B6 paper publication. Further, Ex.B7 reply paper publication proved that the defendant no.2 to 5 and their brother K.Rama Rao have claimed that joint family properties were already partitioned under kararunama agreement dated.10.12.1988 and share was allotted to the defendant no.1. Ex.B7 reply paper publication cannot be construed as a notice of denial of partition of joint family properties since it is only a paper publication and it is not a reply in person to the defendant no.1. Further, there is no evidence on record to prove that the defendant no.1 had got knowledge of Ex.B7 reply paper publication. Moreover, it is admitted fact that the plaintiffs did not demand the defendant no.2 to 5 and said K.Rama Rao for partition of the plaint schedule properties under Ex.B6 paper publication along with their father i.e defendant no.1. Therefore, neither Ex.B6 paper publication nor Ex.B7 reply paper publication binds the plaintiffs. The plaint disclosed that the cause of action for the suit arose when the defendant no.2 to 5 alienated the plaint B schedule property without the consent of plaintiffs and defendant no.1 and subsequently when demanded the defendant no.2 to 5 for partition of plaint schedule property but postponing the event of partition and when the defendants are making preparation
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to take away the produce of casurina tree in an extent of Ac.03.88 cents in
S.No.149/3 in the plaint schedule properties. Therefore, the plaint of plaintiffs has proved that the plaintiffs have demanded the defendants for partition of the plaint schedule properties prior to the filing of suit and the plaint is filed within period of limitation. Hence, this Court felt that the suit is not barred by limitation.
18. Issue No.1. Whether the earlier partition under khararunama agreement
dated. 27.12.1988 as pleaded by the defendant no.1 to 5 is true, valid and
binding on the plaintiffs.
Issue No.5. Whether the plaintiffs are entitled for partition of the plaint
schedule properties?
In order to avoid repetition of evidence, hence Issue No.1 and 5 are taken-up to answer them jointly. The counsel for the plaintiffs submitted that the defendant no.1 to 5 and one Ramarao are children of one Mahalakshmi and the plaintiffs are children of the defendant no.1 and the plaint schedule properties are ancestral properties of said Mahalakshmi and no partition took place relating to plaint schedule properties and said Mahalakshmi died intestate and they are entitled for partition of the plaint schedule properties. The counsels for the defendants submitted that the plaint schedule properties were already partitioned under kararunama agreement dated.10.12.1988 and partition agreement dated.
27.12.1988 among the defendant no.1 to 5 and said Ramarao, and the defendants have been enjoying their respective shares in the plaint schedule properties and the plaintiffs have no share in the plaint schedule properties and they are not entitled for partition of plaint schedule properties .
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19. The counsel for the plaintiffs submitted that the defendants have taken plea that the children of Mahalakshmi Naidu approached to the elders and executed
Kararnama agreement on 10.12.1988 for partition of the joint family properties as per the advice of elders and then entire joint family properties were partitioned among the children of said Mahalakshmi Naidu under partition agreement on 27.12.1988, but the defendants did not produce said Kararnama agreement dated.10.12.1988 as well as partition agreement dated.27.12.1988 before this court to show that plaint schedule properties were already partitioned and also the defendants did not offer any reasonable explanation for non production of said documents and the defendants can not be permitted to lead oral evidence when written documents existing as per Section 91 of Indian Evidence Act. The counsels for the defendants submitted that the children of Mahalakshmi Naidu approached to the elders and executed Kararnama agreement on 10.12.1988 for partition of the joint family properties as per the advice of elders and entire joint family properties were partitioned among the children of said Mahalakshmi Naidu under partition agreement on 27.12.1988 and the oral evidence of DW.1 to DW.4 has clearly established the partition of the plaint schedule properties under said partition agreement dated.27.12.1988.
20. At this stage, it is relevant to mention Section 91 of Indian Evidence Act.
Section 91. When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other dispossession of property or of such matter, except the document itself or secondary evidence of its contents in cases in which secondary evidence is admissible. Section of 91 of
Indian Evidence Act makes it clear that when a document is executed in writing, no oral evidence shall be permitted to prove the contents of said document.
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21. In the instant case, the defendants have relied on Kararnama agreement dt.10.12.1988 and partition agreement dt.27.12.1988 for the partition of plaint schedule properties among children of Mahalakshmi Naidu. Hence, the defendants shall produce said Kararnama agreement dt.10.12.1988 and partition agreement dt.27.12.1988 to show that the plaint schedule properties were partitioned among children of Mahalakshmi Naidu. It is admitted fact that the defendants did not produce said Kararnama agreement dt.10.12.1988 and partition agreement dt.27.12.1988 for proving that plaint schedule properties were partitioned among children of Mahalakshmi Naidu. If really, said Kararnama agreement dt.10.12.1988 and partition agreement dt.27.12.1988 were executed for partition of plaint schedule properties among children of Mahalakshmi Naidu, the defendants might have produced said documents. The defendants did not offer any reasonable explanation for non production of said Kararnama agreement dt.10.12.1988 and partition agreement dt.27.12.1988. Instead of producing said Kararnama agreement dt.10.12.1988 and partition agreement dt.27.12.1988, the defendants have produced oral evidence through DW.1 to DW.4. As per Section 91 of Indian
Evidence Act, the defendants can not be permitted to lead oral evidence to prove the partition of plaint schedule properties as they have relied on Kararnama agreement dt.10.12.1988 and partition agreement dt.27.12.1988 by alleging that plaint schedule properties were already partitioned among children of Mahalakshmi
Naidu. Hence, the contention of the defendants that the plaint schedule properties were partitioned among children of Mahalakshmi Naidu under Kararnama agreement dt.10.12.1988 and partition agreement dt.27.12.1988, is not believable.
22. The counsel for the plaintiffs submitted that the defendants did not produce any revenue record like pattadar pass book, title deed, 1B Register or Adangal in their names for proving that the revenue authority has issued revenue record in
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their names after alleged partition under kararunama agreement dated.10.12.1988 and if really said partition took place under said agreement between the defendant no.1 to 5 and their brother by name K.Rama Rao, the revenue authority might have issued separate revenue records in their favour for their respective shares. The counsel for the defendants submitted that the defendant made several transactions like sale and mortgage, and said transactions clearly proving the partition of plaint schedule properties under kararunama agreement dated.10.12.1988. It is admitted fact that the plaint schedule properties are wet, dry and house properties and the defendants did not produce any revenue record like pattadar pass books, title deeds, 1-B registers or adangals in their names relating to the plaint schedule properties in-order to establish the revenue authority has mutated their names in revenue records for their shares after said partition.
23. The defendants did not offer any reasonable explanation that why they did not file any revenue record like pattadar pass books, title deeds, 1-B registers or adangals in their names for their respective shares. If really, partition was took place between the defendant no.1 to 5 and their brother K.Rama Rao, the revenue authority might have mutated the names of the defendant no.1 to 5 and said
K.Rama Rao by issuing concerned revenue records in their names for their respective shares. Hence, it is proved that no revenue record issued in favour of the defendant no.1 to 5 and said K.Rama Rao for their respective shares in the plaint schedule properties. Therefore, non issuing of revenue record by the revenue authority in the names of the defendant no.1 to 5 and said K.Rama Rao for their respective shares after alleged kararunama agreement dated. 10.12.1988, gives an inference that no partition took place relating to the joint family properties under kararuname agreement dated.10.12.1988 among the defendant no.1 to 5 and their brother K.Rama Rao.
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24. The counsel for the plaintiffs submitted that neither the plaintiffs nor their father i.e defendant no.1 made any transactions whether registered or unregistered relating to any of the plaint schedule properties after alleged kararunama agreement dated.10.12.1988 and if really, said partition took place, either the plaintiffs or defendant no.1 might have made any type of transactions relating to their shares. It is admitted fact that the defendants did not produce any piece of documents to establish that the plaintiffs or defendant no.1 have made transactions either registered or unregistered relating to their share under kararunama agreement dated.10.12.1988. If really, said partition took place under kararunama agreement dated.10.12.1988, either the plaintiffs or defendant no.1 might have made transactions relating to their share after alleged partition under kararunama agreement dated.10.12.1988.
25. The counsel for the plaintiffs submitted that the defendant no.2 to 5 have taken plea in their written statement that partition took place after the death of their father by name Mahalakshmi but the evidence of legal heirs of the defendant no.2 to 5 disclosed that the partition took place during the life time of said Mahalakshmi and the plea of the defendant no.2 to 5 and the evidence of D.W.1 and D.W.2 with regard to the partition of plaint schedule property, is contradictory in nature. During cross-examination, DW.1 admitted that his grand-father partitioned the land during his life time to his sons into five equal shares and all the shares partitioned by his grand-father were shown in the plaint schedule and after the death of his grand- father, no partition deeds were executed among his sons. DW.2 admitted that the suit schedule properties were partitioned during the life time of his grand-father
Mahalakshmi i.e in the year 1988 and no partition took place after the death of his grand-father and according to him, his grand-father partitioned suit schedule property among his children and said partition is oral partition and there is no
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document evidencing partition as alleged and he did not see any document and he do not know whether any document executed in respect of partition during the life time of his grand-father. DW.2 is also admitted that he has no idea when the defendant no.2, 3, 4 and 5 have partitioned their shares and there are no documents are executed by them.
26. A perusal of admissions of DW.1 and DW.2 in their cross examination, it is showing that the partition of plaint schedule properties was took place during the life time of said K.Mahalakshmi and no document was executed relating to said partition. However, the defendant no.2 to 5 have taken a specific plea in their written statement that partition of plaint schedule properties was taken place after the life time of said K.Mahalakshmi under kararunama agreement dated.
10.12.1988. Therefore, the plea of the defendant no.2 to 5 and the evidence of defendant no.1 and 2 who are legal heirs of deceased defendant no.2 to 5, are contradict in nature with regard to the partition, because the defendant no.2 to 5 have taken plea that partition took place after the life time of said K.Mahalakshmi under a written document, whereas DW1 and DW.2 have admitted that partition took place during the life time of said K.Mahalakshmi and no document executed and it is oral partition. Then a serious doubt arise in the case of the defendants that whether said K.Mahalakshmi partitioned the joint family properties during his life time or the joint family properties were partitioned after the life time of said
K.Mahalakshmi under written documents before elders. If the evidence of DW.1 and DW.2 is believable, then the plea raised by the defendant no.2 to 5 in their written statement becomes false, and if the plea raised by the defendant no.2 to 5 in their written statement is believable, then the evidence of DW.1 and DW.2 becomes false.
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27. The counsel for the plaintiffs submitted that the defendants did not take any steps to examine the village elders before whom said partition took place and the defendants did not offer any explanation for non examination of said village elders to prove the alleged the partition. The counsel for the defendants submitted that DW.4 is a village elder and he categorically deposed about the partition of plaint schedule properties under kararunama agreement dated.10.12.1988. On perusal of Ex.B7 reply paper publication, the defendant no.2 to 5 and said K.Rama
Rao have claimed that as per the words of elders by name K.Krishna Rao,
Maheswara Rao, Sanjeeva Rao, Raju and Naganna, kararunama agreement executed on 10.12.1988. It is admitted fact that the evidence of DW.3 is eschewed as he did not turn up for cross examination and also he is not a elder under alleged kararunama agreement dated. 10.12.1988. DW.4 is one B.Satyanarayana and he is also not a elder under kararunama agreement dated. 10.12.1988. The defendants did not choose to examine any of said elders by name K.Krishna Rao, Maheswara
Rao, Sanjeeva Rao, Raju and Naganna in-order to proved that as per said elders, they have executed kararunama agreement dated. 10.12.1988 for partition of joint family properties and “A” schedule was allotted to the defendant no.1. Even, the defendant did not offer any explanation that why they did not take any steps to examine any of said elders to prove alleged kararunama agreement dated.
10.12.1988 and thereafter, partition agreement dated.27.12.1988.
28. The counsel for the plaintiffs submitted that Ex.B7 reply paper publication as well as written statement of the defendants, did not disclose the specified items in the plaint schedule properties which were fell to the share of defendant no.1 under kararunama agreement dated.10.12.1988 and partition agreement dated.
27.12.1988. It is admitted fact that Ex.B7 reply paper publication as well as the written statement of the defendants, did not disclose which property under plaint
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schedule properties, was fell to the share of defendant no.1. If really, a share was allotted to the defendant no.1 under kararunama agreement dated.10.12.1988 and partition agreement dated.19.12.1988, Ex.B7 paper publication as well as the written statement of the defendants might have disclosed which property in the plaint schedule properties was allotted to the defendant no.1 towards his share.
Therefore, the contention of the defendants that partition of the joint family properties took place and a share was allotted to the defendant no.1 under kararunama agreement dated.10.12.1988 and partition agreement dated.
19.12.1988, is not believable.
29. The counsel for the defendants submitted that after the partition of plaint schedule properties among children of Mahalakshmi Naidu under Kararnama agreement dt.10.12.1988 and partition agreement dt.27.12.1988, some of the defendants have executed sale deeds as well as mortgage deeds relating to the part of plaint schedule properties and said documents have proved the partition of plaint schedule properties among children of Mahalakshmi Naidu. The counsel for the plaintiffs submitted that the defendants have filed various documents by alleging that they have executed sale deeds as well as mortgage deeds in respect of part of plaint schedule properties after partition of plaint schedule properties under
Kararnama agreement dt.10.12.1988 and partition agreement dt.27.12.1988, but said sale deeds and mortgage deeds did not disclose with regard to partition of plaint schedule properties among children of Mahalakshmi Naidu under Kararnama agreement dt.10.12.1988 and partition agreement dt.27.12.1988.
30. It is admitted fact that the defendants have filed various sale deeds i.e.
Ex.B8 sale deed, Ex.B9 sale deed, Ex.B10 sale deed, Ex.B12 sale deed etc.. and also filed various mortgage deeds i.e. Ex.B13 to Ex.B18, executed by them relating
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to part of the plaint schedule properties. On perusal of said sale deeds and mortgage deeds, it is noticed that said sale deeds as well as mortgage deeds did not disclose about partition of plaint schedule properties under Kararnama agreement dt.10.12.1988 and partition agreement dt.27.12.1988. If really, partition of plaint schedule properties was took place among children of Mahalakshmi Naidu under Kararnama agreement dt.10.12.1988 and partition agreement dt.27.12.1988, said sale deeds as well as mortgage deeds might have disclosed about said partition under Kararnama agreement dt.10.12.1988 and partition agreement dt.27.12.1988. Even, the defendants did not offer any explanation that why said sale deeds as well as mortgage deeds did not disclose about said partition under
Kararnama agreement dt.10.12.1988 and partition agreement dt.27.12.1988.
Hence, the contention of the defendants that partition of plaint schedule properties was took place among children of Mahalakshmi Naidu under Kararnama agreement dt.10.12.1988 and partition agreement dt.27.12.1988, is not believable.
31. The counsel for the plaintiffs submitted that the chief affidavits of DW.1 and
DW.2 as well as written statements of the defendants, did not disclose which item of plaint schedule properties fell to the share of which of the defendants, and if really partition took place, the chief affidavits of DW.1 and DW.2 as well as written statements of defendants might have disclosed which item of plaint schedule properties fell to the share of which of the defendants. The counsel for the defendants submitted that the oral evidence of DW.1 to DW.4 has clearly established the partition of plaint schedule properties among children of
Mahalakshmi Naidu under Kararnama agreement dt.10.12.1988 and partition agreement dt.27.12.1988, and non mentioning of which item of plaint schedule property fell to the share of which of the defendants, is not fatal to the case of the defendants.
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32. On perusal of chief affidavits of DW.1, DW.2 as well as written statements of the defendants, it is noticed that said chief affidavits as well as written statements did not disclose which item of plaint schedule properties fell to the share of which of the defendants. The defendants did not assign any valid reason that why the chief affidavits of DW.1 and DW.2 as well as written statements of the defendants did not disclose which item of plaint schedule properties fell to the share of which of the defendants. If really, partition was took place among the children of Mahalakshmi
Naidu under Kararnama agreement dated.10.12.1988 and partition agreement dated.27.12.1988, the chief affidavits of DW.1 and DW.2 as well as written statements of the defendants, might have disclosed which item of plaint schedule properties fell to the share of which of the defendants. Hence, the contention of defendants that partition of plaint schedule properties was took place among children of Mahalakshmi Naidu under Kararnama agreement dt.10.12.1988 and partition agreement dt.27.12.1988, is not believable.
33. On perusal of Ex.B8 sale deed, it is noticed that it is executed by the defendant no.5 in respect of part of item no.9 of plaint A schedule property and it shows that the property was purchased by Mahalakshmi Naidu under document no.2796/1952. However, the defendants did not produce said document no.2796/ 1952, and Ex.B8 sale deed did not disclose about said Kararnama agreement dt.10.12.1988 and partition agreement dt.27.12.1988. Moreover, during cross examination, the defendant no.4 and 5 have suggested to DW.2 that item no.9 of plaint A schedule property was fell to the share of said Ramarao. Whereas, Ex.B8 sale deed shows that part of item no.9 of plaint A schedule property was sold by the defendant no.5. Hence, a doubt arise in the case of the defendants that if really part of item no.9 of plaint-A schedule property was fell to the share of said Ramarao who is one of son of said Mahalakshmi Naidu, how could the defendant no.5
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executed Ex.B8 sale deed. Further, DW.1 admitted that defendant no.5 got the properties in Rajupalem village, whereas the part of item no.9 of plaint-A schedule property covered under Ex.B8 sale deed which was executed by defendant no.5, is situated at Thotada village. Hence, this court can not come to a conclusion that plaint schedule property was already partitioned among children of Mahalakshmi
Naidu, basing on Ex.B8 sale deed alone.
34. The counsel for the defendants submitted that defendant no.1 has signed in
Ex.B13 and Ex.B14 mortgage deeds and those documents clearly gives inference about the partition of plaint schedule properties. The counsel for the plaintiffs submitted that the paragraph i.e. the executant is the absolute owner of the schedule property, was strike off in Ex.B13 and Ex.B14 mortgage deeds and same is also admitted by DW.2 and that said Ex.B13 and B14 mortgage deeds were executed in order to obtain crop loan and said Ex.B13 and B14 mortgage deeds cannot be relied upon as evidence of partition of plaint schedule properties. On perusal of Ex.B13 and B14 mortgage deeds, it is noticed that the paragraph i.e. the executant is the absolute owner of the schedule property, was strike off in Ex.B13 and Ex.B14 mortgage deeds and said documents did not disclose about the partition of plaint schedule properties under Kararnama agreement dt.10.12.1988 and partition agreement dt.27.12.1988. Moreover, it is quite common that in order to obtain crop loan from Co-operative bank, strict proof of ownership will not be insisted as the term loan is a very short period. Further, there is no presumption under the Law that an attester got the knowledge about the contents of documents on the mere ground that he acted as a attestor. On the other hand, the alleged signatures of the defendant no.1 on Ex.B13 and B14 mortgage deeds is denied by the plaintiffs. But, the defendants did not confront alleged signature of defendant no.1 on Ex.B13 and B14 mortgage deeds during the cross examination of PW.1
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and PW.2. Hence, the defendants cannot rely upon Ex.B13 and B14 mortgage deeds alone to prove the partition of the plaint schedule properties among the children of Mahalakshmi Naidu.
35. The counsel for the defendants submitted that the plaintiffs can not file suit for partition for plaint schedule properties during the life time of defendant no.1 as they did not get any right over it and therefore, the suit is not maintainable. The counsel for the plaintiffs submitted that the suit is maintainable by the plaintiffs who are the children of defendant no.1 during the life time of defendant no.1 as they become coparceners by birth as per Section 6 of Hindu Succession Act. As per section of 6 of Hindu Succession Act, In a joint Hindu family governed by
Mithakshara Law, the daughter of a coparcener shall - a) by birth become a coparcener in her own right in same manner as the son, b) have the same rights in the coparcener property as she would have had if she had been a son, c) be subject to the same liabilities in respective of said coparcenar property as that of a son. Section 6 of Hindu Succession Act, makes it crystal clear that a son has right by birth in the Hindu joint family property.
36. The counsel for the plaintiffs has relied on the judgment of Hon’ble Apex
Court in V.V.Seetharam Vs P.Chandrasekhar, minor guardian P.Siddayya, 2001 (6) ALD 143 , wherein the Hon’ble Apex Court held that “ A male Hindu inherits property by birth from his father, grand father or great grand father ”. The counsel for the plaintiffs has also relied on the judgment of Hon’ble Apex Court in Dehra Vs
Vishal and another, 2023 (0) Supreme (SC) 815, wherein the Hon’ble Apex Court held that “ A coparcener has his own right in coparcener property and he is entitled to a share in the coparcenary property by birth ”.The counsel for the plaintiffs has also relied on the judgment of Hon’ble Apex Court in V.Achi Vs N.Chettiar and
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another, 1967 (0) Supreme (SC) 19 , wherein the Hon’ble Apex Court held that “Under Mithakshara Law, each son upon his birth takes an interest equal to that of his father in ancestral property”. The counsel for the plaintiffs has also relied on the judgment of Hon’ble Apex Court in Revanasiddappa and another Vs Mallikarjuna and others, 2023 (Supreme) (SC) 814, wherein the Hon’ble Apex Court held that “ A lineal male descendant upto third generation would acquire an independent right of ownership by birth and a member of a coparcenary has a right to demand partition of joint family property”.
37. It is admitted fact that a male hindu has right in his joint family property by birth from his father, grand father or great grand father and he is entitled to seek share in the coparcenary property by birth. The above three judgments of Hon’ble
Apex Court are dealing with the right of a male hindu to claim share in the joint family property by birth. It is admitted fact that the plaintiff no.1 to 4 are the children of defendant no.1 who is the son of Konathal Mahalaxmi, and the plaintiff no.1 to 4 are grand children of said Konathala Mahalaxmi. Therefore, the plaintiff no.1 to 4 are entitled to claim share in the plaint schedule property by their birth being the coparceners. Hence, in my opinion, the above three judgments of Hon’ble Apex
Court are rightly applicable to the present facts of the case. Hence, the contention of the defendants that the suit is not maintainable during the life time of father of plaintiffs i.e. defendant no.1, is not having any merits.
38. The counsel for the defendants submitted that the plaintiffs have taken plea initially that the plaint schedule properties are ancestral properties of their paternal grand father Mahalakshmi Naidu and during trial, they have taken plea that plaint schedule properties were acquired by Mahalakshmi Naidu with ancestral funds and the pleas in different times are contradict in nature and therefore, the plaintiffs are
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not entitled for partition of plaint schedule properties. The counsel for plaintiffs submitted that the plaintiffs are entitled for partition of plaint schedule properties, whether they are ancestral properties of their paternal grand father by name
Mahalakshmi Naidu or whether they are acquired by said Mahalakshmi Naidu with the ancestral funds.
39. The counsel for the plaintiffs submitted that the defendants did not mention in their written statement about the names of elders before whom alleged partition of plaint schedule property was took place as well as DW.1 and DW.2 did not state the names of elders before whom the alleged partition of plaint schedule property was took place. The counsel for the defendants submitted that Ex.B7 reply paper notice clearly disclosed the names of elders before whom the partition of plaint schedule property was took place. It is admitted fact that the defendants did not mention in their written statement about the names of elders before whom partition of plaint schedule property was took place as well as DW.1 and DW.2 did not state the names of elders before whom the partition of plaint schedule property was took place. It is also admitted fact that DW.3 and DW.4 are not the elders covered under
Ex.B7 reply paper notice, before whom partition of plaint schedule property was took place. It is also admitted fact that the defendants did not examine any of the elders covered under Ex.B7 reply paper notice to prove the partition of the plaint schedule properties. The defendants did not assign any valid reason for non examination of any of said elders covered under Ex.B7 reply paper notice. Even, it is not the contention of the defendants that said elders covered under Ex.B7 reply paper notice, are died. Hence, the contention of the defendants that partition of the plaint schedule property was took place among the children of Mahalakshmi before the elders under Kararnama agreement dated.10.12.1988 and partition agreement dated.27.12.1988, is not believable.
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40. In the cross examination, DW.2 denied the suggestion put by the plaintiffs that the suit schedule properties are ancestral properties of his paternal grand father Mahalakshmi and not self acquired property of Mahalakshmi, though the documents stands in the name of Mahalakshmi, they might have been acquired with ancestral properties. It is admitted fact that the plaintiffs have taken plea initially that plaint schedule properties are ancestral properties of their paternal grand father Mahalakshmi and during trial, they have taken plea that plaint schedule properties mght have acquired by Mahalakshmi with ancestral funds. It is not disputed by both parties that plaint schedule properties are not belongs to
Mahalakshmi. When once it is proved that the plaint schedule properties are ancestral properties of said Mahalakshmi, or that the plaint schedule properties were acquired by Mahalakshmi with ancestral funds, the plaintiffs are entitled for partition of the plaint schedule properties being the coparceners in the Hindu Joint
Family property. Therefore, the case of the plaintiffs can not be thrown out on the mere ground that the plaintiffs have taken plea initially that plaint schedule properties are ancestral properties of their paternal grand father Mahalakshmi and during trial, they have taken plea that plaint schedule properties were acquired by
Mahalakshmi with ancestral funds.
41. On comprehensive reading of evidence of DW.1 and DW.2, it clearly reveals that they have completely deviated from the original defence taken by the defendant no.2 to 5. DW.1 and DW.2 have completely shifted their stand from written partition to that of oral partition. Further, one Konathala Rama
Suryanarayana is examined as DW.3 and the evidence of DW.3 is eschewed as he did not turn-up for cross examination. Hence, the evidence of DW.3 has no value in the eye of Law as evidence of DW.3 was not tested by the cross examination and was eschewed. One Budha Satyanarayana is examined as DW.4 and he deposed
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about the partition of plaint schedule properties under Kararnama agreement among the children of Mahalakshmi. It is admitted fact that the name of DW.4 is not covered under Ex.B7 reply paper notice. If really, DW.4 had acted as a elder in the partition of the plaint schedule properties among the children of Mahalakshmi, the defendants might have mentioned the name of DW.4 in Ex.B7 reply notice by alleging that DW.4 is also one of the elder. Moreover, the defendants did not produce said Kararnama agreement dated.10.12.1988 and partition agreement dated.27.12.1988 before this court. Hence, the oral evidence of DW.4 is no way helpful to the case of defendants to prove the partition of plaint schedule property,
42. The counsel for the defendants has relied on the judgment of Hon’ble Apex
Court in U.Nagaratnam Vs U.Satyanarayana, second appeal no.315/2014 dated. 7.11.2014 , wherein the Hon’ble Apex Court held that “ In a suit for partition, the burden of proof lies on the plaintiff to establish that the property is ancestral and it has not been partitioned and unless this burden is discharged, it does not shift to the defendants”. The counsel for the defendants has also relied on the judgment of
Hon’ble Apex Court in Y.Deva Prasad Vs D.Naga Subbayya, second appeal
no.292/2013 dated.21.7.2014 , wherein the Hon’ble Apex Court held that “ There is no presumption that property stands in the name of a member of joint family, is a joint family property and the burden is on the person asserting that it is a joint family property”.
43. It is proved that the plaint schedule properties are ancestral properties of the plaintiffs and defendants, and that the plaint schedule properties are not yet partitioned. The defendants did not produce any amount of evidence to establish that the plaint schedule properties were already partitioned among the children of said Mahalakshmi under Kararnama agreement dated. 10.12.1988 and partition
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agreement dated.27.12.1988. Hence, the defendants did not discharge their burden to prove that plaint schedule properties were partitioned under Kararnama agreement dated.10.12.1988 and partition agreement dated.27.12.1988 though the plaintiffs have discharged their burden that plaint schedule properties are ancestral properties and they are not yet partitioned. Hence, in my opinion, the above judgments of Hon’ble Court, are not applicable to the present facts of the case.
44. On perusal of entire record, it is noticed that the plaintiff no.1 to 4 have filed present suit for partition of the plaint schedule property into six equal shares and to allot one such share to the defendant no.1 on first instance and later, to partition said 1/6th share of the defendant no.1 into five equal shares and to allot four such shares to them and for delivery of possession of said shares to them after converting joint possession into separate possession. During the pendency of the suit, the plaintiff no.2 died and accordingly the legal heirs of the plaintiff no.2 are added as plaintiff no.5 to 8. The evidence coupled with the documents on record have proved that the plaint schedule properties are ancestral property of the plaintiffs and defendants, and also proved that the plaint schedule properties are not partitioned among the plaintiffs and defendants. On the other hand, the defendants have failed to prove that the plaint schedule properties were already partitioned among the children of Mahalaxmi under Khararunama agreement dated.10.12.1988 and partition agreement dated.27-12-1988. Hence, this Court felt that the plaintiffs are entitled for partition of the plaint schedule properties into six equal shares and to allot one such share to the defendant no.1 on first instance and later, for partition of said 1/6th share of the defendant no.1 into five equal shares and to allot four such shares to them and also entitled for delivery of possession of said shares after converting joint possession into separate possession, and also they are entitled to file separate application for mesne profits.
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45. Issue No.6 : To what relief ?
Issue No.1 is answered against the defendants by holding that the earlier partition under khararunama agreement dated. 27.12.1988 as pleaded by the defendant no.1 to 5 is not true, valid and binding on the plaintiffs. Issue No.2 is answered in- favour of the plaintiffs by holding that all the properties were shown in the plaint schedule for partition. Issue No.3 is answered against the defendants by holding that the suit is not bad for non-joinder of necessary parties. Issue No.4 is answered against the defendants by holding that the suit is not barred by limitation. Issue
No.5 is answered in-favour of the plaintiffs by holding that they are entitled for partition of plaint schedule properties into six equal shares and to allot one such share to the defendant no.1 on first instance and later, for partition of said 1/6th share into five equal shares and to allot four such shares to them.
46. In the result, the suit is preliminarily decreed with costs in-favour of the plaintiffs and against the defendants, for partition of the plaint A, B, C schedule properties into six equal shares by metes and bounds, and to allot one such share to the defendant no.1 on first instance, and later for partition of said 1/6th share into five equal shares and to allot four such shares to the plaintiff no.1 and 3 to 8, after converting the joint possession into separate possession. The plaintiffs are entitled to file separate application for mesne profits.
Typed by the stenographer on my dictation, corrected, signed, and pronounced by me in the open court on this 10th day of September, 2025.
Sd/-P.Nageswara Rao
Principal Civil Judge (Senior Division),
(FAC). Additional Civil Judge (Senior Division) (FTC) Anakapalle
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Appendix of Evidence
Witnesses Examined :
For Plaintiffs :
P.W.1 : K. Mahalaxmi Naidu (Plaintiff No.1, Eschewed)
P.W.2 : K. Gangadhararao ( Plaintiff No.3 )
For Defendant No.9 to 12,16 to 18, 20, 24,25 :
D.W.1 : K.Rajarao @ Rajaram ( Defendant no.18 )
For Defendant No.13 to 15 and 21 to 23 :
D.W.2 : Konathala Suresh ( Defendant no.22 )
D.W.3 : K. Ramasurya Narayana ( Third party, Eschewed)
D.W.4 : Buddha. Satyanarayana ( Third party )
Exhibits Marked :
For Plaintiffs : Nil
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For Defendant No.9 to 12,16 to 18, 20, 24,25 :
Ex.B1 :Certified copy of registration extract of sale deed Document No.2945/1953 dated. 01.08.1953 executed by Sidireddy Adhinarayana in-favour of
Konathala Mahalaxmi for an extent of Ac.0.80 cents covered under Patta
No.51 of Rajupalem Village of Anakapalli Mandal.
Certified copy of registration extract of sale deed Document No.1387/1956 Ex.B2 : dated. 25.04.1956 executed by Bandaru Appalaswamy and others in favour of Konathala Mahalaxmi for an extent of Ac.1.00 cents covered under Patta
No.51 of Rajupalem Village of Anakapalli Mandal
Ex.B3 : Certified copy of registration extract of sale deed Document No.3118/1967 dated. 29.06.1967 executed by Sundarapu Veeranna and others in favour of
Konathala Mahalaxmi Naidu for an extent of Ac.1.24 cents covered under
S.No.133/1 of Rajupalem Village of Anakapalli Mandal
Ex.B4 :Certified copy of registration extract of sale deed Document No.791/1985 dated.10.02.1985 executed by Konathala Krishnarao and another in favour of Konathala Rajarao and others for an extent of Ac.1.21 cents covered under S.No.2, 26 of Rajupalem Village of Anakapalli Mandal
Ex.B5 :Certified copy of registration extract of mortgage deed Document
No.308/1990 dated. 28.02.1990 executed by Konathala Koteswararao and others in favour of Villuri Satyam and another for Ac.2.00 cents covered under S.No.162/13 and 128 of Sankararam Village of Anakapalli Mandal.
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Ex.B6 :Publication in Eenadu Daily News paper issued by 1st defendant not to purchase or enter into any document in respect of the plaint schedule property dated.17.07.1994
Ex.B7 :Reply publication in Eenadu Daily News paper issued by the defendants no.2 to 5 and Konathala Ramarao claiming partition affected dated. 23.07.1994.
For Defendant No.13 to 15 and 21 to 23 :
Ex.B8 :Certified copy of registration extract of sale deed document No.2153/1999 dated.05.07.1999 executed by 5th and 22nd defendants in favour of Konathala
Suri Jaggarao in-respect of land for S.No.1194/2 for an extent of Ac.0.36 cents of Anakapalli.
Ex.B9 :Mee-Seva copy of GPA cum sale agreement document no.381/2007 dated.
08.10.2007 executed by 4th defendant and his children in favour of Surisetty
Narasingarao and another in respect of land for S.No.149/1, 149/3, and 133/1 for an extent of Ac.2-77 cents of Rajupalem Village of Anakapalli
Mandal.
Ex.B10 : Meeseva copy of registered discharge receipt of mortgage deed vide document no.2906/2004 dated.27.07.2004 executed by Buddha
Gopalakrishna in favour of 4th defendant for discharge of mortgage deed dated.15.11.1999 vide Document No.3483/1999.
O.S.NO.66/2000 40 Dated : 10-09-2025
Ex.B11 : Certified copy of registered mortgage deed vide Document No.3483/1999 dated. 15-11-1999 executed by 4th defendant in favour of Buddha
Gopalakrishna in respect of land in S.No.135/3 for an extent of Ac.0-80 cents of Rajupalem Village of Anakapalli Mandal.
Ex.B12 : Certified copy of Gift settlement deed vide document No.1256/1994 dated.08.05.1994 executed by 4th defendant in favour of Konathala Lakshmi
Parvathi and others in respect of land in S.No.135/3 for an extent of Ac.0.80 cents of Rajupalem Village of Anakapalli Mandal.
Ex.B13 : Certified copy of mortgage deed vide document No.4437/1993 dated.26.11.1993 executed by 4th defendant in favour of Pulaparthi Venkata
Subramanyam in respect of land in S.No.149/1 and 149/3 for total extent of
Ac.2.65 cents of Rajupalem Village of Anakapalli Mandal.
Ex.B14 : Certified copy of mortgage deed vide document No.4125/1993 dated.
14.10.1993 executed by 5th defendant in favour of Pulaparthi Venkata
Subramanyam in respect of land in S.No.149/1 and 149/3 for total extent of
Ac.2.65 cents of Rajupalem Village of Anakapalli Mandal.
Ex.B15 : Certified copy of mortgage deed document No.406/1991 dated.03.01.1991 executed by 3rd defendant and his children in favour of Gowri Vyavasaaya
Sahakaara Parapathi Sangham in respect of land in S.No.149/3 for an extent of Ac.1.30 cents of Rajupalem Village of Anakapalli Mandal.
O.S.NO.66/2000 41 Dated : 10-09-2025
Ex.B16 : Certified copy of mortgage deed document No.408/1991 dated.03.01.1991 executed by 5th defendant in favour of Sri Gowri Vyavasaaya Sahakaara
Parapathi Sangham in respect of land in S.No.135/3 for an extent of Ac.1.00 cents of Rajupalem Village of Anakapalli Mandal.
Ex.B17 : Certified copy of mortgage deed document No.409/1991 dated.04.01.1991 executed by 4th defendant in favour of Sri Gowri Vyavasaaya Sahakaara
Parapathi Sangham in respect of land in S.No.135/3 for an extent of Ac.1.60 cents of Rajupalem Village of Anakapalli Mandal.
Ex.B18 : Certified copy of mortgage deed document no.1926/1990 dated.06.08.1990 executed by 2nd defendant and others in favour of Madaka Nagayamma in respect of land in S.No.149/3 for an extent of Ac.1-94 cents of Rajupalem
Village of Anakapalli Mandal.
Ex.B19 : Meeseva copy of encumbrance certificate dated.29.09.2022.
Sd/-P.Nageswara Rao
Principal Civil Judge (Senior Division),
(FAC). Addl. Civil Judge (Senior Division) (FTC) Anakapalle
O.S.NO.66/2000 42 Dated : 10-09-2025
IN THE COURT OF THE ADDITIONAL CIVIL JUDGE ( SENIOR DIVISION)
(FAST TRACK COURT) : ANAKAPALLE
Present:- P.Nageswara Rao,
Principal Civil Judge (Senior Division), Anakapalle
FAC: Principal Civil Judge (Senior Division) (FTC), Anakapalle
Wednesday, this the 10th day of September, 2025
O.S No.66/2000
Between:
1.Konathala Mahalaxminaidu
S/o Rajarao, Age 35 years,
Cultivation,
2.Konathala Parameswararao ( Died )
3.Konathala Gangadhararao
S/o Rajarao, Age 31 years,
Cultivation,
4.Konathala Raju.
S/o Rajarao,
Age 37 years,
Cultivation, (Plaintiff No.1, 3 and 4 are residents of Gavarapalem, Anakapalli Town and
Mandalam , Visakhapatnam District.
O.S.NO.66/2000 43 Dated : 10-09-2025
5. Konathala Laxmi
W/o Rajarao
Aged 70 years
6. Konathala Annapurna
W/o Parameswara Rao
Aged 47 years
7. Konathala Vamsi
S/o Parameswara Rao
Aged 25 years
8. Konathala Vyshnavi
D/o Parameswara Rao
Aged 23 years (Plaintiffs No.5 to 8 are residents of Satakampattu, Near Gowramma temple,
Gavarapalem, Anakapalli town, Visakhapatnam District).
(Plaintiffs No.5 to 8 are added as legal representatives of deceased 2nd plaintiff as per orders in IA No.34/2025 dated:11-08-2025).
.…Plaintiffs.
And :-
1.Konathala Rajarao
S/o Mahalaxmi,
Age 66 years,
Cultivation,
O.S.NO.66/2000 44 Dated : 10-09-2025
Satakampattu,
Near Gowramma temple,
Govarapalem,
Anakapalli Town,
Visakhapatnam District.
2.Konathala Krishnarao ( Died )
3.Konathala Venugopalarao ( Died )
4.Konathala Koteswararao ( Died )
5.Konathala Mahalaxminaidu ( Died )
6. Dadi Ramarao (Naidu)
Ex-councellor,
Kusuma Haranadh Baba
Mandiram’ side house,
Aggimarrichettu street,
Govarapalem,
Anakapalli town ,
Visakhapatnam District.
7. Konathala Mahalaxmamma.
W/o Ramarao, Age 42 years,
House wife, Sattakampattu,
Govarapalem, Anakapalli town ,
Visakhapatnam District.
O.S.NO.66/2000 45 Dated : 10-09-2025
8. Konathala Appanna @ Babu.
S/o Late Ramarao,
Age 19 years, Cultivation,
Sattakampattu,
Govarapalem,
Anakapalli Town,
Visakhapatnam District.
9. Konathala Nookaratnam.
W/o Venugopalarao,
Age 50 years,
Household duties,
Racharalla street,
Sattakampattu,
Govarapalem,
Anakapalli town,
Visakhapatnam District.
10. Konathala Chandra,
S/o Venugapalarao,
Age 30 years,
Racharalla street,
Sattakampattu,
Gavarapalem,
Anakapalli Town
Visakhapatnam District.
O.S.NO.66/2000 46 Dated : 10-09-2025
11. Konathala Somesh Naidu.
S/o Venugapalarao,
Age 25 years,
Racharalla street,
Sattakampattu,
Gavarapalem,
Anakapalli town ,
Visakhapatnam District.
12. Yellapu Hemalatha,
W/o Chinnarao,
Age 25 years,
House hold duties,
Yelamanchili Town ,
13. Saragadam Bhavani,
W/o Jogarao, Age 33 years,
D.No.31-16-14,
Venkateswara Metta,
Allipuram Area,
Visakhapatnam.
14. Konathala. Lavanya,
D/o late Koteswararao,
Age 25 years,
Near Gowriparameswari Temple,
Satakampattu, Gavarapalem,
Anakapalli Town.
O.S.NO.66/2000 47 Dated : 10-09-2025
15. Konatala.Pradeep
S/o late Koteswararao,
Age 23 years,
Near Gowriparameswari Temple,
Satakampattu, Gavarapalem,
Anakapalli Town,
Visakhapatnam District.
16.Konathala Narayanamma,
W/o Late Krishnarao,
Age 60 years,
Satakampattu,
Gavarapalem,
Anakapalli Town,
Visakhapatnam District.
17.Konathala Uma,
S/o Late Krishnarao,
Age 48 years,
Timber Depot,
Ummalada Junction,
Anakapalli town,
18.Konathala Rajarao @ Rajaram,
S/o. Late Krishnarao,
Satakampattu, Gavarapalem,
Anakapalli town,
Visakhapatnam District.
O.S.NO.66/2000 48 Dated : 10-09-2025
19.Konathala Ravichandra Kumar (Died)
20.Buddha Gowri,
W/o Joginaidu,
Age 50 years,
Near Peda Nuyyi,
Gavarapalem,
Anakapalli town,
Visakhapatnam District
21.Konathala Varalakshmi,
W/o Late Mahalakshminaidu,
Age 50 years,
Gowramma Temple,
Satakampattu,
Gavarapalem,
Anakapalli Town.
22.Konathala Suresh,
S/o Late Mahalakshminaidu,
Age 27 years,Gowramma Temple,
Satakampattu,Gavarapalem,
Anakapalli Town .
23.Konathala Geeta,
D/o Late Mahalakshminaidu,
Age 20 years,
O.S.NO.66/2000 49 Dated : 10-09-2025
Gowramma Temple,
Satakampattu,
Gavarapalem,
Anakapalli Town.
24.Konathala Dhanalakshmi,
W/o Late Ravichandra Kumar,
Age 30 years, Satakampattu,
Gavarapalem area,
Anakapalli Town.
25.Konathala Akhil (Minor)
S/o Late Ravinchandra Kumar,
Age 13 years, Satakampattu,
Gavarapalem area ,
Anakapalli Town. …… Defendants (Defendant No.7 and 8, who are legal heirs of deceased K.Ramarao who is son of
Mahalaxmi , are added per the orders in IA No.265/2005 on 7-8-2006) (Defendant No.9 to 12, who are legal heirs of deceased defendant no.3, are added as per the orders in IA No.207/2008 on 16-11-2012) (Defendants No.13 to 15, who are legal heirs of deceased defendant no.4, are added as per orders in I.A No.32/2016 on 14-9-2017) (Defendants No.16 to 20, who are legal heirs of deceased defendant no.2, are added as per orders in I.A No.59/2018 on 19.08.2019)
O.S.NO.66/2000 50 Dated : 10-09-2025
(Defendants No.21 to 23, who are legal heirs of deceased defendant no.5, are added as per orders in I.A No.229/2018 on 22.01.2019) (Defendants No.24 and 25, who are legal heirs of deceased defendant no.19, are added as per orders in I.A.No.320/2018 on 20.11.2018) ( The Defendant No.24 is appointed as guardian for the defendant no.25 who is minor as per orders in I.A No.321/2018 dated.20.11.201, and then the defendant no.25 is attained majority and hence, the defendant no.24 was discharged from the guardianship of the defendant no.25)
This suit is filed by the plaintiffs no.1 to 4 against the defendants no.1 to 6 initially for preliminary decree seeking partition of the plaint schedule properties into six equal shares by metes and bounds and allot one such share to the 1st defendant on the first instance and later for partition of 1/6th share into five equal shares and allot four such shares to them and for delivery of possession of the same to them after converting the joint possession into separate possession, and further profits and for costs of the suit .
Value of the suit for the purpose of court fee and jurisdiction being the value of the plaintiffs is Rs.2,05,204/- and a court fee of Rs.4,526/- is payable since the plaintiffs and defendants 2 to 5 are in joint and constructive possession, and a fixed court fee of Rs.200/- is paid under Section 34(2) of APCF and Suits Valuation Act.
(Details of valuation:- Value of the plaint schedule property Rs.15,39,032/-; Value of 1/6th share of 1st defendant Rs.2,56,505/- ; Value of 4/5th share of plaintiffs
Rs.2,05,204/-; )
O.S.NO.66/2000 51 Dated : 10-09-2025
This suit coming on 22.08.2025 for final hearing and disposal before me in the presence of V.S.S.R.B.Srinivas, learned counsel for the plaintiffs, and of
Lanka Jagannadham, learned counsels for the defendant no.9 to 12 and 16 to 18, 20, 24 and 25, and M.Jayaram, Advocate for defendant no.13 to 15 and 21 to 23, and the defendant no.1 and 6 to 12 are set-exparte and the matter is having stood over for consideration till this day, this Court doth order and
PRELIMINARY DECREE
1.Thatthe suit be and the same is hereby preliminarily decreed with costs in favour of plaintiffs and against the defendants for partition;
2.that the plaint A,B,C schedule properties shall be partitioned into six equal shares by metes and bounds and to allot one such share to the defendant no.1 on first instance, and later for partition of said 1/6th share into five equal shares to allot four such shares to the plaintiff no.1 & 3 to 8 after converting the joint possession into separate possession;
2.that the plaintiffs are entitled to file separate application for mesne profits; and
3. that the defendants do pay to the plaintiffs an amount of Rs.15,066/- towards costs of the suit.
( copy of plaint schedule is appended herewith)
Given under my hand and the seal of the court, this the 10th day of September, 2025.
Sd/-P.Nageswara Rao
Principal Civil Judge (Senior Division)
(FAC)Additional Civil Judge (Senior Division) (FTC) Anakapalle
O.S.NO.66/2000 52 Dated : 10-09-2025
MEMORANDUM OF COSTS
FOR PLAINTIFF/S: FOR DEFENDANT/S:
Rs. Ps. Rs. ps. Stamp on Vakalat 2-00Stamp on Vakalat 2-00 Stamp on plaint 200-00Stamp on documents 3-00 Stamp on process 200-00Advocate fee 14,364-00 Advocate’s fee 14,364-00Jr.Advocate fee 7,182-00 Typing charges 100-00Typing charges 100-00 Writing charges 100-00Clerk wages 100-00 Clerk Wages 100-00
Costs allowedRs.15,066-00Costs certifiedRs.21,751-00
Sd/-P.Nageswara Rao
Principal Civil Judge (Senior Division)
(FAC)Additional Civil Judge (Senior Division) (FTC) Anakapalle
O.S.NO.66/2000 53 Dated : 10-09-2025