Sri S. Kaleemulla, Junior Civil Judge.

1

IN THE COURT OF THE JUNIOR CIVIL JUDGE, TADIPATRI

Present:- Sri S.KALEEMULLA, Junior Civil Judge

Friday, the 9 th day of May, 2014

O.S.No.129 of 2011

Between:- Ganne Venkataiah S/o Late G.Lakshanna, Hindu, Aged 74 years, Cultivation, Resident of Gannevaripalli Village, Challavari Palli Post, Tadipatri Mandal, Anantapuramu District.

…Plaintiff

And

1. Ganne Rajendra Prasad S/o Late G.Venkata Ramaiah @ Ramanna, Hindu, Age:about 51 years, Cultivation, Resident of Thippareddy Palli Village, Tadipatri Mandal, Anantapuramu District.

2. Ganne Sreenivasulu Naidu S/o Late G.Venkata Ramaiah @ Ramanna, Hindu, Age:about 44 years, Cultivation, Resident of Thippareddy Palli Village, Tadipatri Mandal, Anantapuramu District, now residing at D.No.2/1032, Jayanagar Colony, Tadipatri Town, Anantapuramu District

3. Smt.Jayamma D/o Late G.Venkata Ramaiah @ Ramanna, Hindu, Age:about 53 years, Housewife, Resident of Manchanahalli Village, now residing at Thippareddy Palli Village, Tadipatri Mandal, Anantapuramu District.

4. Smt.Sujatha D/o Late G.Venkata Ramaiah @ Ramanna, Hindu, Age:about 42 years, Housewife, Resident of Madanapalli Village of Chittoor District, now residing at Thippareddy Palli Village, Tadipatri Mandal, Anantapuramu District.

5. Ganne Sudharani W/o G.Sreenivasulu Naidu, Hindu, Age: about 37 years, Cultivation, Resident of Thippareddy Palli Village, Tadipatri Mandal, Anantapuramu District., now residing at D.No.2/1032, Jayanagar Colony, Tadipatri Town, Anantapuramu District.

6. Ganne Ramanna S/o Late G.Venkata Naidu, Hindu, Age:about 70 years, Cultivation, Resident of Gannevaripalli Village, Tadipatri Mandal, Anantapuramu District.

7. Ganne Kristaiah S/o Late G.Venkata Naidu, Hindu, Age:about 66 years, Cultivation, Resident of Gannevaripalli village, Tadipatri Mandal, Anantapuramu District.

8. Ganne Lakshmi Narayana S/o Late G.Venkata Naidu, Hindu, Aged about 62 years, Cultivation, Resident of Gannevaripalli Village, Tadipatri Mandal, now residing at D.No.15/1229, 2nd road, Sanjeeva Nagar, Tadipatri Town, Anantapuramu District.

9. Ganne Yathirajulu S/o Late G.Venkata Naidu, Hindu, Aged about 60 years, Cultivation, Resident of Gannevaripalli Village, Tadipatri Mandal, Anantapuramu District. 10.Smt.Thirupathamma W/o Bheemanna, Hindu, Aged about 68 years, Housewife, Reside of Gadekallu Village, Vidapanakal Mandal, Anantapuramu District. 11.Smt.Alivelu W/o Ramanjaneyulu, Hindu, Aged about 64 years, Housewife, Resident of Kajipuram Kottala Village, Chippagiri Mandal, Kurnool District.

2 12.Ganne Sreenivasulu S/o G.Yathirajulu, Hindu, Aged about 29 years, Cultivation, Resident of Gannevaripalli Village, Tadipatri Mandal, Anantapuramu District.

13. Gooli Aswartha Reddy S/o Late G.Lakshmi Reddy, Hindu, Aged 40 years, Cultivation, D.No.2/692-B, Ambedkar Nagar, 2nd Ward, Tadipatri Town, Anantapuramu District. 14.Kummetha Kulasekhara Reddy S/o K.Narayana Reddy, Hindu, Aged 46 years, Cultivation, Resident of Cherlopalli Village, Pedda Yakkalur Post, Peddapappur Mandal, Anantapuramu District.

…Defendants

This suit coming on 29-04-2013 before me for final hearing in the presence of Sri C.Ramesh Natha Reddy and Sri K.Sankara Reddy, Advocates for the Plaintiff and Sri P.V.Prathap Reddy and Sri P.Ranganath, Advocates for the Defendant Nos.2, 5, 13 & 14, and Sri N.V.Bhaskar Reddy and Sri A.V.Ramana Reddy, Advocates for the Defendant Nos.9 and 12, and Defendant Nos.1, 3, 4, 6 to 8, 10 & 11 remained exparte, and having stood over for consideration till this day, the court made the following:-

J U D G M E N T

1.This is a suit filed by the plaintiff against defendants 1 to 14 for partition and separate possession of his 1/4th share in the suit schedule properties.

2.The case of the plaintiff as per his plaint is as follows:

The defendants 1 and 2 are the sons and the defendants 3 and 4 are the daughters of elder brother of plaintiff by name Ganne

Venkataramaiah @ Ramanna. The 5th defendant is the wife of 2nd defendant and the daughter-in-law of the said Ganne Venkata Ramaiah.

The defendants 6 to 9 are the son's sons and the defendants 10 & 11 are the son's daughters of Ganne Chinna Venkataiah, the Senior paternal uncle of the plaintiff. The defendants 13 and 14 are the purchasers of the joint family properties from the defendants 5, 9 & 12. The plaint schedule mentioned properties are the ancestral joint family properties of the plaintiff and defendants 1 to 11. Item Nos.1 and 3 of the plaint schedule properties measuring Ac.1-42 cents in Sy.No.1103-A and 6 cents in

Sy.No.1192 of Tadipatri village fields were purchased jointly by Ganne

Chinna Venkataiah S/o G.Pedda Ramanna, who is the Senior paternal 3 uncle of the plaintiff and the grand father of the defendants 6 to 11, and

Ganne Venkatappa S/o G.Lakshmanna who is the elder brother of the plaintiff under a registered sale deed dt.22-08-1940 from the previous owner namely Ganne Venkatappa S/o G.Pedda Aswarthu and took possession of the same. In the said registered sale deed the survey number of Item No.3 was not mentioned but the boundaries are clearly mentioned and therefore as per the boundaries, Item No.3 is located in

Sy.No.1192 and the said land is also called as vamidoddi and since then they became the joint owners of Item Nos.1 & 3 of the plaint schedule properties. Again the said two persons namely Ganne Chinna Venkataiah i.e., the senior paternal uncle of the plaintiff and Ganne Venkatappa i.e., the elder brother of the plaintiff jointly purchased Item No.2 of the plaint schedule properties measuring 67 cents in Sy.no.1102-D of Tadipatri

Village fields from the original owners namely 1) G.Raganna, 2)

G.Ramanna, 3) G.Kondaiah, 4) G.Venkata Narayana and 5) G.Ththaiah, sons of Gorthi Venkatappa under a registered sale deed dt.16-07-1941 and took possession of the same, and since then those two persons became the joint owners of Item No.2 of the plaint schedule properties along with Item Nos 1 and 3 of the plaint schedule properties. By the time of the said two purchasers, the father of the plaintiff Ganne Lakshmanna was no more and his father has three sons namely 1) Venkatappa, 2)

Venkata Ramaiah i.e., the father of D-1 to D-4 and 3) Venkataiah i.e., the plaintiff and therefore the eldest brother Venkatappa was managing all the joint family properties of three brothers and he purchased the suit schedule properties with the joint family funds in the capacity of the manager of the joint family along with their senior paternal uncle Ganne

Chinna Venkataiah. Thus Ganne Chinna Venkataiah got half share in the suit schedule properties and the sons of Ganne 4

Lakshmanna i.e., Ganne Venkatappa and his two brothers namely

Venkata Ramaiah i.e., the father of D-1 to D-4 and Venkataiah i.e., the plaintiff together got half share in the suit schedule properties. Later the three sons of the Ganne Lakshmanna i.e., Venkatappa, Venkata Ramaiah and the plaintiff got partitioned all their family properties under a registered partition deed dt.28-07-1960 and during the said partition, Venkatappa was not alloted any share in the suit schedule properties and he was alloted some other properties and the plaintiff was alloted an extent of 33 cents in Sy.No.1103-A and 16 ½ cents in Sy.No.1102-D and his elder brother Venkata Ramaiah i.e., the father of D.1 to D.4 was alloted 35 cents in Sy.No.1103-A and 17 cents in Sy.No.1102-D. Though the extents were decided in said partitioned, the said land was not actually demarkated by metes and bounds and the said two allottees are jointly enjoying the said properties till now for common purpose of both the parties. The defendants 1 to 4 succeeded the share of Venkata Ramaiah and so they all together are having a joint right in the said land only to an extent of 35 cents in Sy.No.1103-A and 17 cents in Sy.No.1102-D.

Similarly the defendants 6 to 11 being the legal heirs of Chinna

Venkataiah are having a joint share over an extent of 71 cents in

Sy.No.1103-A and 33 ½ cents in Sy.No.1102-D. But the defendants are not having any absolute right over the entire extent of land in the said two survey numbers. While the things stood thus, the plaintiff came to know that the 2nd defendant got executed a registered gift deed dt.13-07-2010 gifting 71 cents of land in Sy.No.1103-A and 20 cents of land in

Sy.No.1102-D to his wife i.e., 5th defendant as if he were the absolute owner of the said land. In fact the 2nd defendant along with defendants 1, 3 and 4 has only right to the extent of 35 cents in Sy.No.1103-A and 17 cents in Sy.No.1102-D and therefore gift deed executed by 2nd defendant 5 in favour of the 5th defendant is not valid and not binding on the plaintiff.

The said land is not divided by metes and bounds and therefore 2nd defendant is not entitled to donate the property to his wife. The 2nd defendant created the said gift deed in order to grab the entire land without giving any share to the other co-owners to which they are legally entitled. Further the plaintiff also came to know that the defendants 5, 9 & 12 executed a registered sale deed in favour of the defendants 13 and 14 on 17-03-2011 selling part of the suit schedule properties to an extent of 82 cents in Sy.No.1103-A and 40 cents in Sy.No.1102-D with false and imagined boundaries without the consent or knowledge of the plaintiff. In the said sale deed it was recited the Eastern boundary as the land of 9th defendant and the southern boundary as the land of 5th and 9th defendants. The defendants 5, 9 and 12 already executed a registered sale deed in favour of the defendants 13 and 14 to the excess extent of the land than to which they are entitled to claim, and in addition that still they have shown the rest of the land in suit survey numbers as belongs to them. As the defendants 5, 9 and 12 are not the absolute owners of the said property, the sale in favour of the defendants 13 and 14 is not valid and not binding on the plaintiff. Till the date of presentation of the plaint, there was no partition of the said joint properties, and the plaintiff and the defendants 1 to 12 are all in joint possession and enjoyment of the suit schedule properties. The plaintiff is having 1/4th share, the defendants 1 to 4 are having 1/4th share and the defendants 6 to 11 together are having half share in the suit schedule properties. As all the defendants are acting against the interest of the plaintiff, he demanded for partition of the suit schedule properties including the land got registered in the names of the defendants 13 and 14, but none of the defendants cared for the demand of the plaintiff and they adamantly refused to come for amicable 6 settlement and postponing the partition of the suit schedule properties on one pretext or the other. Number of attempts were made of partition of the amicably. Therefore the plaintiff got issued a legal notice, dt.9-05-2011 to to D-2, d-5, D-9, D-12, D-13 and D-14 demanding for partition and separate possession of his 1/4th share in the suit schedule properties. All of them received the legal notice, and failed to come forward for partition.

The defendants 2 and 5 got issued a reply notice, dt.18-05-2011 and the defendants 9 and 12 got issued another reply notice dt.20-05-2011 with false and baseless allegations. Hence the plaintiff filed the present suit for partition and separate possession of his 1/4th share in the suit schedule properties.

3. The defendants 1, 3, 6, 7, 8, 10 and 11 remained exparte and they did not choose to contest the suit.

4. The defendants 2, 5, 13 and 14 filed their written statement.

These defendants admitted the case of the plaintiff upto the partition of the properties between the plaintiff and his brothers under the partition deed dt.28-07-1960. It is the case of the these defendants that one year after the said partition in the year 1961 there was a family settlement between the plaintiff and his brother i.e., the father of the defendants 1 to 4 and in the said settlement, the plaintiff agreed to exchange his share of 36 cents in Sy.no.1103-A and 16 ½ cents in Sy.No.1102-D with the father of the defendants 1 to 4 by taking his land to an extent of 16 ½ cents in

Sy.No.1440-A and cash of Rs.5,000/- from him in the presence of elders and relatives, and since the of date of settlement, the father of defendants 1 to 4 by name Venkata Ramaiah had been in possession and enjoyment of the 71 cents of land in Sy.No.1103-A and 34 cents of land in

Sy.No.1102-D, and out of the said 34 cents land in Sy.No.1102-D, the father of the defendants 1 to 4 left 14 cents of land for the purpose of his 7 rick-yard and constructed a stone wall around it. The right, title and possession of the father of D.1 to D.4 over the said extent was also recognized by the land reforming Officer of Anantapuramu and since then the father of defendants 1 to 4 was in possession and enjoyment of the above said extents openly and peacefully to the knowledge of everybody including the plaintiff. The possession and enjoyment of the father of D.1 to D.4 over the said extent in the said survey numbers mutated in the

Revenue records and the revenue officials collected land revenue and cess from him and issued pattadar pass books to him in the year 1988.

The father of D.1 to D.4 took pattadar pass book in respect of

Sy.No.1102-D only to the extent of 20 cents of cultivable land as he was using the 14 cents land in the said survey number as his rick-yard. Along with the father of D.1 to D.4 , the grand father D.6 to D.11 also enjoyed the remaining extent in the above said survey numbers on western side. After the death of their father, the said property devolved upon D.1 to D.4 and in the family settlement D.1 , D.3 and D.4 alloted said property to D.2 and then D.2 became absolute title holder and possessor of said property and

D.2 also paid cist to the Revenue Department and his name was mutated in the Revenue records and he was issued pattadar pass book and title deed with patta No.236. As per partition deed dt.28-07-1060, the father of

D.1 to D.4 got 16 ½ of cents in Sy.No.1440-A and plaintiff got remaining 16 ½ cents in the same survey number. Since the date of settlement in the year 1961 between father of D.1 to D.4 and the plaintiff, the plaintiff got total 36 cents in Sy.No.1440-A even though he got only 16 ½ of land in the said survey number through the registered partition deed dt.28-07-1960. The plaintiff alloted the said total 36 cents of land in

Sy.No.1440-A to his elder son Venkata Ramana in their oral partition and the said Venkata Ramana also took pattadar pass book under 8 katha No.153 to the above said extent along with other lands in different survey number. The said fact establishes that a family settlement occurred in the year 1961 between plaintiff and father of D.1 to D.4. Since 1961 the plaintiff is not having any title and possession over any piece of land in Sy.No.1103-A and 1103-D i.e., Item No.1 and 3 of the plaint schedule property. After issuance of legal notice dt.9-05-2011 by the plaintiff, the defendants 2 and 5 sent a suitable reply notice dt.18-05-2011 to the plaintiff. The plaintiff gave a representation to the Tahsildar,

Tadipatri to survey the Item Nos.1 and 3 of plaint schedule property alleging that he was the joint owner. But the said Tahsildar Office issued endorsement dt.8-10-2010 under L.P.No.B/602/10, stating that the present plaintiff failed to establish the right and possession over the said property and he advised him to approach the Civil court for adjudication of the matter. After issuance of the reply notice dt.18-05-2011 by D.2 and D.5, at the evil advice of the plaintiff, his elder son Venkataramana got deleted the Sy.No.1440-A from his pattadar passbook and in computer system of

Tahsildar Office of Tadipatri. Being rightful title holder over 71 cents of land in Sy.No.1103-A and 20 cents of land in Sy.No.1102-D, the defendant No.2 gifted the same to his wife i.e., the 5th defendant with love and affection on 13-07-2010 and delivered the possession of the same to her and she accepted the same and took possession of the said property.

D.5 sold 45 cents of land in Sy.No.1103-A and 20 cents of land in

Sy.No.1102-D along with the defendant 6 to 12 to the defendant Nos.13 and 14 on 17-03-2011 under a registered sale deed and delivered possession to them with specific boundaries. The plaintiff has no right to ask partition of Item Nos.1 and 3 of the plaint schedule properties. The defendants 13 and 14 are the bonafide purchasers. The defendant 1 to 4 and the defendants 6 to 12 are the only owners of respective shares of 9 land in Sy.No.1103-A and 1102-D, prior to the sale of the same to D.13 and D.14. These defendants finally urged for dismissal of the suit.

5.The defendants 9 and 12 also filed their written statement.

These defendants stated that 12th defendant is son of 9th defendant.

Theses defendants denied the genealogy filed by the plaintiff. It is the plea of these defendants that Ganne Ramanna was shown as having only two sons in the genealogy filed by the plaintiff, but the said Ganne

Ramanna is having four sons viz., Ganne Chinna Venkataiah, Ganne

Ramappa, Ganne Chinna Roshanna and Ganne Lakshmanna. It is the case of these defendants that all the joint properties were partitioned among four sons of Ganne Pedda Ramanna. Being joint purchasers,

Ganne Chinna Venkataiah and Ganne Venkatappa were in joint possession and enjoyment of the properties and later prior to 1960 itself they orally partitioned the properties by metes and bounds. In the oral partition between Ganne Chinna Venkataiah and Ganne Venkatappa

Eastern half of the extent i.e., 71 cents out of 142 cents in Sy.No.113-A and Western half of the extent i.e., 34 cents out of 67 cents in

Sy.No.1102-D fell to share of Ganne Chinna Venkataiah and remaining extent fell to share of Ganne Venkatappa. Since the date of oral partition,

Chinna Venkataiah and Venkatappa were in separate possession and enjoyment of the respective share, and subsequently the plaintiff and his brothers partitioned their joint family properties in the year 1960.

Subsequently the said Ganne Chinna Venkataiah died leaving behind his only son by name Ganne Venkata Naidu as his legal heir and the property was devolved on the said Ganne Venkata Naidu and the said Ganne

Venkata Naidu and his four sons namely 1) Ganne Ramanna, 2) Ganne

Krishnaiah, 3) Ganne Lakshmi narayana and 4) Ganne Yathirajulu (9th defendant) were in joint possession and enjoyment of the properties along 10 with the other properties. Later in the year 1989 the said Ganne Venkata

Naidu and his four sons partitioned their joint family properties orally and 34 cents of land in Sy.No.1102-D and 71 cents of land in Sy.No.1103-A fell to the share of 9th defendant and since then and 9th defendant and his son the 12th defendant have been enjoying the property as absolute owners. Accordingly, mutations were carried out in the Revenue records and Revenue authorities also issued pattadar passbook and title deed in favour of 9th defendant for his respective share. As the grand father of 9th defendant and the brother of the plaintiff by name Venkatappa orally partitioned their properties as co-shares before 1960, the question of enjoyment of the suit schedule properties by the plaintiff along with the defendants jointly does not arise and it was invented for purpose of the suit. Entire half share of Ganne Venkatappa (2nd purchaser) was in possession and enjoyment of D.2 and D.2 gifted the same to the 5 th defendant and the 5th defendant has been in possession and enjoyment of the same. These defendants sold northern extent of 41 cents out of 71 cents of land in Sy.No.1103-A and northern extent of 20 cents out of 34 cents of land in Sy.No.1102-D to Aswartha Reddy of Tadipatri, and

Kemmetha Kulasekhara Reddy of Cherlopalli village, Peddapappur

Mandal. At the same time these purchasers also purchased northern extent from D.5. As both the extents are adjacent to each other, these purchasers got registered property under a registered a deed, dt.17-03- 2011 from these defendants and D-5. The plaintiff was never in possession and enjoyment of the plaint schedule properties even along with D.2 and D.5. The plaintiff has no right to challenge the right, title possession and enjoyment of 9th and 12th defendant over their extents and any transaction made by them in respective of half extent. The plaintiff filed the suit by suppressing several material facts and suit is liable to be 11 dismissed. They got issued proper reply notice dt.20-05-2011 to the legal notice. These defendants finally urged for dismissal of the suit.

6. Basing on the above pleadings, the following issues were settled for trial:

1)whether suit schedule properties are joint family properties of plaintiff and the defendant Nos.1 to 12 ?

2)Whether there was a partition of joint family properties in the year 1960?

3)Whether there was family settlement between plaintiff and the father of D.1 to D.4 in the year 1961?

4)Whether the genealogy filed by of the plaintiff is not correct ?

5)Whether the plaintiff is not in joint possession of suit schedule properties along with D.1 to D.12 till to day ?

6)Whether plaintiff is entitled for partition and separate possession of 1/4th share in the suit schedule properties ?

7)To what relief ?

7. During the course of trial, the plaintiff examined himself as

PW.1 and his son Ganne Venkataramana as P.W.2. The plaintiff marked

Exs.A.1 to A-15. Ex.A-1 is the genealogical chart filed along with the plaint. Ex.A-2 is the registration copy of registered sale deed, dt.22-08-1940 executed in favour of G.Chinna Venkataiah and

G.Venkatappa. Ex.A-3 is the original registered sale deed, dt.16-07-1941, executed in favour of G.Chinna Venkataiah and G.Venkatappa. Ex.A-4 is the registration copy of registered partition deed dt.28-07-1960, executed between the plaintiff and his brothers. Ex.A-5 is the registration copy of registered gift deed, dt.13-07-2010, executed by 2nd defendant in favour of 5th defendant. Ex.A-6 is the registration copy of registered sale deed, dt.17-03-2011 executed by defendants 5, 9 and 12 in favour of defendants 13 and 14. Ex.A-7 is the office copy of legal notice, dt.9-05-2011 issued by the plaintiff. Exs.A-8 to A-12 are the served postal acknowledgments of the defendants. Ex.A-13 is the reply notice dt.18-05-2011 issued by defendants 2 and 5. Ex.A-14 is the reply notice issued by defendants 9 and 12, dt.20-05-2011. Ex.A-15 is the registered sale deed, 12 dt.28-06-1969, belongs to the father of D-2 (marked during the cross examination of D.W.1). On behalf of the defendants D-2, D-5, D-13 and

D-14, D-2 was examined as DW.1 and one Bingi Ratnam of Tadipatri

Town was examined as D.W.2. Exs.B-1 to B-13 were marked on behalf of

D.2, D.5, D.13 and D.14 . Ex.B.1 is the pattadar pass book No.225 issued by the Tahsildar of Tadipatri in the name of father of D.1 to D.4. Ex.B.2 is the pattadar pass book No.236 issued by the Tahsildar of Tadipatri in the name of D.2. Ex.B.3 is the note book which discloses the land revenue paid by the father of D.1 to D.4 for Kulam No.578 and other Kulams.

Ex.B.4 is the land revenue receipts No.9433608 issued in the name of the father of D.1 to D.4 for fasilies 1387 to 1391. Ex.B.5 is the land revenue receipts No.9433608 issued in the name of the father of D.1 to D.4 for fasili 1386. Ex.B.6 is the land revenue receipt No.138522 issued in the name of D.2. Ex.B.7 is the proceedings issued to the father of D.1 to D.4 by the Officer of land reforms Tribunal, Anantapuramu. Ex.B-8 is the 1B-

Extract copy issued by Tahsildar of Tadipatri in the name of D.2. Ex.B-9 is the Adangal issued by Tahsildar of Tadipatri in the name of D.2. Ex.B-10 is the Encumbrances certificate issued by Sub-Registrar's Tadipatri showing the mortgage of plaint schedule property to P.A.C.S.Veerapuram by D.2. Ex.B.11 is the IB-Extract copy issued by office of the Tahsildar of

Tadipatri in the name of Ganne Venkataramanaiah (son of the plaintiff).

Ex.B.12 is the Adangal copy issued by the office of the Tahsildar, Tadipatri in the name of Ganne Venkataramanaiah (son of the plaintiff). Ex.B.13 is the reply notice served on the counsel of the plaintiff. On behalf of D.9 and D.12, the 12th defendant was examined as D.W.3. Exs.B.14 to B.16 were marked on their behalf. Ex.B.14 is the plan filed along with written statement of D.9 and D.12. Ex.B.15 is the true extract of adangal, dt.22- 12-2011 issued by Tahsildar, Tadipatri. Ex.B.16 is the true extract of 1-B 13 account, dt.22-12-2011 issued by Tahsildar, Tadipatri.

8. Heard all sides.

9. For the sake of convenience and brevity, this court is inclined to answer issue Nos.4, 2, and 1 first.

10. ISSUE NO.4:

whether the genealogy filed by plaintiff is not correct?

The defendants admitted relationship between the plaintiff and all the defendants and the defendants D.2, D.5, D.13 and D.14 also admitted the genealogy filed by the plaintiff. But D.9 and D.12 admitted most of the genealogy filed by the plaintiff. In the written statement they pleaded that Ganne Ramanna was shown as having two sons namely

Ganne Chinna Venkataiah and Ganne Lakshmanna, but the said Ganne

Ramanna, infact, was having four sons namely 1) Ganne Chinna

Venkataiah, 2) Ganne Rangappa, 3) Ganne Roshanna, and 4) Ganne

Lakshmanna. Except this small variation, which has no bearing on the determination of suit, D.9 and D.12 also admitted the entire genealogy file by plaintiff. Therefore it held that the genealogy filed by the plaintiff is admitted to be correct. Accordingly this issue is answered.

11. ISSUE NO.2:

Whether there was a partition of joint family properties in

the year 1960?

It is the case of plaintiff that the joint family properties were partitioned between him and his brother in the year 1960 under Ex.A-4 with regard to the extents only, but not with regard to the boundaries and the said extents were not demarcated by metes and bounds. The defendants in the written statement admitted the said partition between the plaintiff and his brothers in the year 1960 under Ex.A-4. But the defendants denied that the partitioned was not effected with specific 14 boundaries. Except to the extent of the boundaries, the partition between the plaintiff and his brothers has been admitted by all the parties. For the purpose of the this issue it is held that there was partition of joint family properties in the year 1960 among the plaintiff and his brothers. The question whether partition was effected without the boundaries, will be taken up while answering the other issues. Accordingly this issue is answered.

12. ISSUE NO.1:

Whether the suit schedule properties are joint family properties of plaintiff and the defendants 1 to 12?

As admitted by all the defendants the suit scheduled properties were the joint family properties plaintiff and the defendants 1 to 12.

Therefore this issue is answers accordingly.

13. As Issue Nos.3, 5 and 6 require elaborate discussion for each issue, this court is inclined to answer these issues together to avoid repetition of the discussion.

ISSUE NO.3: Whether there was a family settlement between

plaintiff and the father of defendants 1 to 4 in the year 1961?

ISSUE NO.5: Whether plaintiff is not in joint possession of

suit schedule properties along with D.1 to D.12 till to day? and

ISSUE NO.6: Whether plaintiff is entitled for partition and

separate possession of 1/4 th share in suit schedule properties?

14. It is the case of the plaintiff that he and the defendants 1 to 11 are the joint owners of the suit scheduled properties and their extents were decided under Ex.A-4 registered partition deed, but actual partition was not effected with specific boundaries and D.2 without any right gifted part of the suit scheduled properties to his wife D.5. Later D.5, D.9 and

D.12 sold the suit scheduled properties to D.13 and D.14 under an invalid document. The plaintiff as P.W.1 and his son as P.W.2 reiterated the same in their evidence. On the other hand it is the case of the 15 defendants D.2, D.5, D.13 and D.14 that after Ex.A.4, in the year 1961 there was a family settlement between the plaintiff and his brother, who is none other than the father of D.1 to D.4 and in that family settlement, plaintiff exchanged his properties i.e., 36 cents land in Sy.No.1104-A and 16 ½ land in Sy.No.1102-D with the father of D.1 to D.4 and in turn he took 16 ½ cents of land in Sy.No.1440-A and cash of Rs.5,000/- from the father of D.1 to D.4 and Revenue authorities also recognized the said family settlement and the same was mentioned in the pattadar pass book of father of D.1 to D.4, and in the partition between the plaintiff and his sons, 33 cents of land in Sy.No.1440-A was given to the son of the plaintiff ( P.W.2) and the father of D.1 to D.4 became the absolute the owner of the properties to an extent of 71 cents land in Sy.No.1103-A and 34 cents of land in Sy.No.1102-D and he left 14 cents of land in Sy.No.1102-D for his hayrick-yard and the extents of 71 cents of land in Sy.No.1103-A and remaining 20 cents of cultivable land in Sy.No.1102-D were incorporated in the pattadar pass book of the father of D.1 to D.4 and in the oral partition among D.1 to D.4, the extent of 71 cents of land in Sy.No.1103-A and 20 cents of land in Sy.No.1102-D fell to share of D.2, and later he gifted the same to his wife D.5, and later D.5 sold part of land in

Sy.No.1103-A and 20 cents land in Sy.No.1102-D along with D.6 to D.12 to D.13 and D.14 under a common registered sale deed. The plaintiff has no right to claim share in the suit scheduled properties and he has never been in possession and enjoyment of the same since 1961. The 2nd defendant as D.W.1 and his witness Bingi Ratnam as D.W.2 reiterated the said facts in their evidence. It is the case of D.9 and D.12 that before 1960 itself Ganne Chinna Venkataiah and Ganne Venkatappa partitioned their joint family properties orally and they and after their deaths, their legal heirs have been in possession and enjoyment of their 16 respective shares and in the said oral partition eastern half of the extent i.e., 71 cents out of Ac.1-42 Cents in Sy.No.1103-A and western half of the extent i.e., 34 cents out of 67 cents in Sy.No.1102-D fell to the share of Ganne Chinna Venkataiah and remaining extent fell to the share of

Ganne Venkatappa. And subsequently Ganne Venkatappa and his two brothers Ganne Venkataramaiah and the plaintiff partitioned their joint family properties under Ex.A-4 and since then they have been in possession and enjoyment of their respectives shares and in the family partition 34 cents in Sy.No.1102-D and 71 cents in Sy.No.1103-A fell to the share of D.9 and since then D.9 and his son D.12 have been enjoying their share as absolute owners and their names were mutated in Revenue records and the Revenue authorities also issued pattadar pass book and title deed in favour of D.9 and after partition of properties between the plaintiff and his brothers, entire half share of the suit schedule properties fell to the 2nd brother Venkataramaiah , who is father of D.1 to D.4 and later the same fell to share of D.2 in the oral partition between the father of

D.1 to D.4 and themselves, and later D.2 gifted the same to his wife D.5 and later D.5 sold some of land in suit schedule properties along with D.9,

D.12 to D.13 and D.14 under a common registered sale deed, dt.17-08-2011. The plaintiff was never in possession of suit schedule properties and he has no right to challenge the right, title of D.9 and D.12.

The 12th defendant as D.W.3 reiterated the said facts in his evidence.

15. At paragraph 7 of the plaint, the plaintiff pleaded that he and his brothers partitioned all their joint family properties under Ex.A-4 and during the said partition Venkatappa was allotted other properties, and the plaintiff was alloted an extent of 36 cents in Sy.No.1103-A and 16 ½ cents in Sy.No.1102-D and Venkataramaiah, the father of D.1 to D.4 was alloted 35 cents in Sy.No.1103-A and 17 cents in Sy.No.1102-D. In the 17 said paragraph the plaintiff did not plead the partition among himself, his brothers and the grand father of D.6 to D.11 Ganne Chinna Venkataiah.

But at paragraph 10, the plaintiff pleaded that till today there was no partition of the joint family properties among themselves and the plaintiff and D.6 to D.11 are in joint possession and enjoyment of the plaint schedule mentioned properties and the plaintiff is having 1/4th share , defendant Nos.1 to 4 are having together 1/4th share and defendants 6 to 11 are having together half share in the suit schedule properties. From this it is clear that it is the case of the plaintiff that no partition at all took place between the original purchasers and later between himself and his brothers and all the joint family properties including the suit schedule properties are in joint possession of himself and all the defendants. But in the cross examination the plaintiff as P.W.1 admitted that his father and his brothers partitioned their ancestral properties during the life time of his father. This admission of P.W.1 proved the case of D.9 and D.12 that

before 1960 itself the original purchasers partitioned the suit schedule

properties. The plaintiff as P.W.1 also admitted that his senior paternal uncle (Ganne Chinna Venkataiah), after his death his son Venkataiah, and after that his sons (D.6 to D.11) have been in possession and enjoyment of half share in the suit schedule properties. This admission of P.W.1 also proves the case of the defendants that suit schedule properties were already partitioned before 1960 itself, and in the partition among D.6 to

D.11, half of the suit schedule property fell to the share of D.9. This admission of P.W.1 estoppes him from challenging the sale made by D.9 and D.12 in favour of D.13 and D.14. Further P.W.1 also admitted that 71 cents of land in Item No.1 on eastern side fell to the share of his senior paternal uncle i.e., grand father of D.9 and 34 cents of land in Item No.3 on western side fell to the share of his senior paternal uncle i.e., the grand 18 father of D.9. This admission of P.W.1 also strengthens the case of D.9 and D.12 that eastern half portion in Item No.1 and western half portion in

Item No.3 fell to the share of grand father of D.9 in oral partition between the grand father of D.9 and the elder brother the plaintiff i.e., Venkatappa,

before 1960 itself. P.W.1 also admitted that now D.9 has been in

possession and enjoyment of the land of his senior paternal uncle and D.9 and D.12 sold 41 cents of land in Item No.1 and 27 cents of land in Item

No.2 of their share in favour of D.13 and D.14. This actually finishes the case of the plaintiff. The above admissions of the plaintiff as P.W.1 categorically prove the case of the defendants that partition of the suit schedule properties was already effected among the legal heirs of Ganne

Chinna Venkataiah and the plaintiff and his brothers with metes and bounds.

16. P.W.1 admitted in the cross examination that he got 16 ½ cents of site towards his share in a partition under Ex.A-4 in Sy.No.1440-

A of Gannevaripalli Village fields. He also admitted that his elder son i.e.,

Venkata Ramana (PW.2) got entered 33 cents of site in Sy.No.1440-A in his pass book. When as per Ex.A.4 the plaintiff got only 16 ½ cents of site towards his share in Sy.No.1440-A, how could he give 33 cents of site in

Sy.No.1440-A to his son i.e., P.W.2. Ex.A.4 partition deed clearly shows that plaintiff got only 16 ½ cents of site in Sy.No.1440-A as per 'C' schedule appended to it. As per 'B' schedule appended to Ex.A-4, the father of D.1 to D.4 also got 16 ½ cents of site in Sy.No.1440-A. Then how could the plaintiff get 33 cents of site in Sy.No.1440-A and how could he give 33 cents in Sy.No.1440-A to his son (P.W.2) in partition between him and his sons, when he got only 16 ½ Cents in Sy.No.1440-A through

Ex.A-4. The plaintiff has not proved or atleast explained how could 33 cents of land in Sy.No.1440-A was shown in the pass book of his son.

19

This definitely makes the case of the defendants D.2, D.5, D.13 and D.14 most probable that in the year 1961 the plaintiff and his brother i.e., the father of D.1 to D.4 exchanged their properties and the share of the plaintiff in suit schedule properties was taken by the father of D.1 to D.4 and he gave 16 ½ cents of site in Sy.No.1440-A and Rs.5,000/- to the plaintiff. Exs.B-11 the 1-B extract copy issued by Tahsildar of Tadipatri and Ex.B-12 the copy of adangal issued by office of Tahsildar of Tadipatri categorically show that the son of plaintiff has got 33 cents of land in

Sy.No.1440-A. If at all no family settlement was effected between the plaintiff and the father of D.1 to D.4, how could the plaintiff get 33 cents of land in the said survey number and how could he give the same to his son, when he got only 16 ½ cents of land in Sy.No.1440-A under Ex.A-4.

It is not case of the plaintiff that the Revenue records filed by the defendants are fake ones. In Ex.B-1 the pattadar passbook of the father of D.1 to D.4 and in Ex.B-2 the pattadar pass book of D.2, the extent of 71 cents of land in Sy.No.1103-A and 20 cents of land in Sy.No.1102-D are shown. In these exhibits the land of 16 ½ cents of land in Sy.No.1440-A is not found. These documents clearly and clinchingly prove the case of the defendants, that there was a settlement between the plaintiff and the father of D.1 to D.4 and in that settlement, they both exchanged their properties in Sy.Nos. 1103-A, 1102-D and 1440-A.

17. The son of the plaintiff as P.W.2 also admitted in his evidence that his father got 16 ½ cents of land in Sy.No.1440-A towards his share under Ex.A-4. P.W.2 also admitted that he obtained pattadar pass book in his name for 33 cents of land in Sy.No.1440-A.

18. Under Ex.A-4 the plaintiff was allotted some other extents of land in some other survey numbers. When it is the case of the plaintiff that the properties were not demarcated with metes and bounds, why the 20 plaintiff did not show the other survey numbers of Ex.A-4 as the suit schedule properties. It is not the specific case of the plaintiff that only the suit schedule properties were not partitioned with specific boundaries. As per Ex.A.4, the extent in survey number 1440-A was also not separated with specific boundaries. Then why the plaintiff did not show land in

Sy.No.1440-A along with the suit schedule properties. The plaintiff as

P.W.1 and his son P.W.2 admitted in the cross examination that the rates of the suit schedule properties were hiked. The plaintiff as P.W.1 admitted in the cross examination that he had no objection for the share of D.9 and

D.12. Then it is not understood why the plaintiff is agitating in respects of the share of the father of D.1 to D.4, when the plaintiff and the father of

D.1 to D.4 exchanged their properties, and what prompted the plaintiff to file the suit by suppressing the material facts. The answer is, perhaps, the higher rates of land in the Tadipatri.

19. The plaintiff has not filed any document nor did he adduce any evidence to the effect that for the other extents in other survey numbers of Ex.A-4, the boundaries are mentioned and the parties to

Ex.A-4 and their legal heirs have been enjoying their respective shares with specific boundaries.

20. In view of the above discussion, it is held that the defendant proved the family settlement between the plaintiff and father of the D.1 to

D.4, and the plaintiff was never in possession of the suit schedule properties along with the defendants 1 to 12, and he is not entitled to any share in the suit schedule properties.

21

21. The learned counsel for the plaintiff relied on a decision; between:

Chinthamani Ammal Vs Nandagopal Gounder and another reported in 2007(5) ALT 65 (S.C), wherein it was decided that when the properties continued to possess jointly by owners, a presumption in regard to status of joint family both backward and forward must be raised as no evidence was brought on record to establish unequivocal declaration by Kesava Gounder to separate himself from joint family.

The learned counsel for the plaintiff also relied on a decision;

between:

Gaddam Chinna Dodamma Vs Goka Pedda Dodamma and another reported in 2005(3) ALT 619, wherein our Hon'ble High Court, held that in case of a co-sharer, mere exercise of possession of right cannot make ouster of co-sharer and possession of property by a co- sharer shall be deemed to be possession on behalf of other co-sharers unless there is a clear ouster by denying the title of other co-sharers.

The learned counsel for the plaintiff also relied on a decision;

between:

Chenna Reddy Vs D.Venkata Reddy reported in 2004(1) ALT 406, wherein our Hon'ble High Court, held that mere entries in revenue records would not constitute title.

The learned counsel for the plaintiff also relied on a decision;

between:

Yeluri Vijayabharathi and others Vs Yeluri Manikyamma and others reported in 1998(2) ALT 623, wherein our Hon'ble High Court, held that records of rights are not records of documents of title and entries therein not to be taken as the basis to fix the title and possession of certain land by a person more than what he got under a partition deed will not give him any legal basis to file a suit for injunction against a co-sharer.

22

22. With great respect to the above precedents, this court feels that they are not applicable to the facts and circumstances of the present suit, because the 1st decision came in a suit for declaration of title, the 2nd decision came in a in a suit for partition where a plea of ouster was taken, the 3rd decision came in a suit filed under A.P.Asigned Lands (Prohibition of Transfer) Act 1977, and the 5th decision came in a suit for bare injunction against a co-sharer. The present suit is neither a suit for permanent injunction nor a suit for declaration of title of a certain person, but this is a suit for partition and separate possession, and therefore with great regard to the above precedents, it is held that the learned counsel for the plaintiff filed the same in a suit which is irrelevant to the above precedents.

23.In view of the above discussion, these issues i.e., issue

Nos.3, 5 and 6 are answered in favour of the defendants and as against the plaintiff.

24.ISSUE NO.7:

To what relief ?

25. In view of the findings of this court on issue Nos.1 to 6, it is held that plaintiff is not entitled to any share in the suit schedule properties and suit filed by him is liable to be dismissed.

26.In the result, the suit is dismissed with costs.

Typed to my dictation by the Typist, corrected and

pronounced by me in the open court this the 9 th day of May, 2014.

JUNIOR CIVIL JUDGE

TADIPATRI

23

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

PLAINTIFF DEFENDANTS

PW-1Ganne VenkataiahDW-1G.Rajendra Prasad PW-2Ganne Venkata RamanaDW-2B.Rathnam DW-3G.Sreenivasulu

EXHIBITS MARKED FOR

PLAINTIFF DEFENDANTS

Ex.A-1Genealogical chart file Ex.B-1Pattadar Pass Book along with the plaint, No.225, issued by the dt.9-06-2011.Tahsildar of Tadipatri in the name of Ganne Venkataramaiah. Ex.A-2Registration copy of Ex.B-2Pattadar Pass Book registered sale deed, No.236 issued by the dt.22-08-1940 executed in Tahsildar of Tadipatri in favour of G.Chinna the name of Ganne Venkataiah and Sreenivasulu Naidu. G.Venkatappa. Ex.A-3Original registered sale Ex.B-3Note Book which discloses deed, dt.16-07-1941, the land Revenue paid by executed in favour of late G.Venkata Ramaiah G.Chinna Venkataiah and for Kulam No.578 and G.Venkatappa. other kulams. Ex.A-4Registration copy of Ex.B-4Land Revenue receipt registered partition deed No.9433608 issued in the dt.28-07-1960, executed name of Late Ganne between the plaintiff and Venkataramaiah for his brothers. fasilies 1387 to 1391. Ex.A-5Registration copy of Ex.B-5Land Revenue receipt registered gift deed, No.9433608 issued in the dt.13-07-2010, executed name of Late Ganne by 2nd defendant in favour Venkataramaiah for of 5th defendant. fasilies 1386. Ex.A-6Registration copy of Ex.B-6Land Revenue receipt registered sale deed, No.138522 issued in the dt.17-03-2011 executed name of Ganne by defendants 5, 9 and 12 Sreenivasulu Naidu. in favour of defendants 13 and 14. Ex.A-7Ex.A-7 is the office copy Ex.B-7Proceedings issued to the of legal notice, late G.V.Ramaiah by the dt.9-05-2011 issued by Officer of land re-farms the plaintiff. Tribunal, Anantapuramu. Exs.A-8 Served postal Ex.B-81B-Extract copy issued by to acknowledgment of the Tahsildar of Tadipatri in Ex.A-12defendants. the name of D.2.

24

Ex.A-13Reply notice, Ex.B-9Adangal issued by dt.18-05-2011 issued by Tahsildar of Tadipatri in defendants 2 and 5. the name of D.2.

Ex.A-14Reply Notice, issued by Ex.B-10Encumbrances certificate defendants 9 and 12, issued by Sub-Registrar's dt.20-05-2011.Tadipatri showing the mortgage of plaint schedule property to P.A.C.S.Veerapuram by D.2.

Ex.A-15Register sale deed, Ex.B-11IB-Extract copy issued by dt.28-06-1969.office of the Tahsildar of Tadipatri in the name of Ganne Venkataramanaiah (son of the plaintiff). ----Ex.B-12Adangal copy issued by the office of the Tahsildar, Tadipatri in the name of Ganne Venkataramanaiah (son of the plaintiff).

----Ex.B-13Reply notice served on the counsel of the plaintiff. ----Ex.B-14Plaint filed along with written statement of D.9 and D.12. ----Ex.B-15True extract of adangal, dt.22-12-2011 issued by Tahsildar, Tadipatri. ----Ex.B-16True extract of 1-B account, dt.22-12-2011 issued by Tahsildar, Tadipatri.

J.C.J.

1

IN THE COURT OF THE JUNIOR CIVIL JUDGE, TADIPATRI

Present:- Sri S.KALEEMULLA, Junior Civil Judge

Friday, the 12 th day of December, 2014

O.S.No.58 of 2009

Between:-

Kayapati Laxmidevi....Plaintiff.

And

1) Polimera Venkata Ranga Reddy.

2) Polimera Bharathi.

3) Juturu Ram Mohan Reddy.

4) Mallela Prameela.… Defendants.

This suit coming on 11-11-2014 before me for final hearing in the presence of Sri V. Munaiah, Sri D. Ranganayakulu and Smt A.Madhuri, Advocates for the Plaintiff and of Sri C. Ramesh Natha

Reddy and Sri K. Sankara Reddy, Sri Y. Haneef Basha and Sri

D.Sivarama Krishna, Advocates for the Defendant Nos.1 and 2 and Sri

N.V. Bhaskara Reddy, Sri A.V. Ramana Reddy and Sri K.S.S. Prabhu

Kumar, Advocates for the the Defendant Nos.3 and 4 and having stood over for consideration till this day, the court delivered the following:-

J U D G M E N T

This is a suit filed by the Plaintiff against the Defendant

Nos.1 to 4 seeking the reliefs of declaration of title and right of the plaintiff over plaint A and B schedule properties, for vacant possession of A schedule property, for mandatory injunction for removal of the structures made in A schedule property and compound wall constructed around A and B schedule properties and for consequential permanent injunction restraining the defendants and their men from interfering with and disturbing in any way from the peaceful and lawful possession of the plaintiff over the plaint B schedule property and for costs of the suit.

2) The case of the plaintiff as per her plaint is that, she is the owner of plaint 'A' and 'B' schedule properties. Plaint 'A' schedule property is vacant site and plaint 'B' schedule property is also vacant site till 20 days back and recently the 1st and 2nd defendants made constructions in the said site about 15 days back. On 22.12.1942 Mallela Pedda Narayana 2 and Mallella Chinna Narayana, sons of Puri Mallela Narayana of Puli

Proddutur Village purchased land in Sy.No.243-E3 of Puli Proddutur

Village from one Ballappa son of Sanjappa of the same Village for valid consideration and the Vendee delivered the possession of the property to them and thereby Mallella Pedda Narayana and Mallella Chinna Narayana became lawful and rightful owners of the said property and they were using the same as hayrick yard and thrashing floor and were stocking the manure by digging a pit. Mallella Pedda Narayana and Mallella Chinna

Narayana are no more and Chinna Narayana left behind him, his sons

Pedda Narayana and Chinna Narayana. Mallella Pedda Narayana had no sons and the property purchsed under the registered sale deed dt.22.12.1942 was in possession and enjoyment of Mallella Chinna

Nrayana only and after the death of Mallella Chinna Narayana, the said property devolved on his three sons namely., 1) Pedda Narayana, 2)

Chinna Narayana and 3) Lakshmi Narayana and as per the family arrangement in between them, Pedda Narayana and Chinna Narayana acquired exclusive rights over the said property and as such as they sold the same to the plaintiff. On 15.07.2008 Mallella Pedda Narayana and

Chinna Narayana conveyed the vacant land of Ac.0-24 cents of land covered under the registered sale deed dt.22.12.1942 to the plaintiff for a valid consideration by executing a registered sale deed dt.15.07.2008.

The original sale deed dated 15.07.2008 was filed in O.S.No.16/2009 which was filed by the plaintiff against three defendants and the said suit was dismissed on the withdrawal memo and the original of the said sale deed will be filed after it is obtained from O.S.16/2009. On the same day of sale, the vendors received the sale consideration and delivered the possession of the property to the plaintiff with specific boundaries. Since then the plaintiff alone has been in possession and enjoyment of the plaint schedule property as owner. Except the plaintiff none has any right, title, 3 possession over the plaint schedule property. The plaintiff is using the said property as hayrick yard and also thrashing floor and was stocking manure in it. The 1st defendant is the husband of the 2nd defendant and 3rd defendant is their relative. The 2nd defendant purchased Ac.0-08 cents out of Ac.0-24 cents in Sy.No.243-E3 with specific boundaries from D-4

Mallella Prameela wife of late M. Lakshminaraya under a registered sale deed dt.01.10-2008, and the said property is part of the property purchased by the plaintiff from her vendors. Possession was not given to the 2nd defendant under the registered deed dt.01.10-2008. The 4th defendant has no right, title and interest in the property conveyed by her to the 2nd defendant and the said sale was created and got up with a malafide intention to grab the property. The 4th defendant has no legal right or title to convey the said property to the 2nd defendant and the 2nd defendant will not acquire any legal title over the property purchased by her. The 4th defendant is not the legal heir to the original owners Mallella

Pedda Narayana and Mallella Chinna Narayana who purchased the property on 22.12.1942. The defendant Nos. 1 to 4 got up sale deed dt.

01.10-2008 with a malafide intention to grab the plaint schedule property and thereby defendant Nos.1 to 3 made attempt to grab the plaint schedule property. The plaintiff got issued legal notice to the defendants, but there was no reply. The defendant Nos.1 and 2 forcibly occupied the plaint schedule property. Then the plaintiff unable to resist their highhanded acts filed a suit in O.S.No.16/2009 before the Court of Junior

Civil Judge, Tadipatri, for permanent injunction and also filed a petition in

I.A.No.31/2009 for temporary injunction and in that petition urgent notice was ordered to the respondents therein. The said suit was filed against

D-1, D-3 and D-4 herein only. After receiving the notice in the said I.A the defendants dug the foundation and commenced the construction, the 1st defendant entered appearance in O.S.16/2009 and has taken time to file 4 counter and simultaneously he and his wife proceeded with construction and subsequently he filed a counter pleading that he is not concerned to the suit property and the said property was purchased by his wife i.e., 2nd defendant from the 4th defendant. The constructions were made in post- haste and the plaintiff being a woman was unable to resist their highhanded acts. Till the counter in I.A.No.31/2009 was filed by the 1st defendant, the plaintiff was not aware of sale deed executed in favour of the 2nd defendant by the 4th defendant. The plaintiff obtained encumbrance certificate from the Sub-Registrar Office on 21.01.2009 and the sale in favour of the 2nd defendant was not reflected in encumbrance certificate.

The sale in favour of the 2nd defendant by the 4th defendant cast a doubt on the title of the plaintiff. The disputed Ac.0-08 cents of the property is shown as 'A' and 'B' schedule of the plaint. 'A' schedule property is the property where the defendant Nos.1 to 3 are making constructions and 'B' schedule property is a vacant land. Since the earlier suit in

O.S.No.16/2009 is only for permanent injunction, where tile will not be

decided, the plaintiff is constrained to file the present comprehensive suit for declaration of her right to the plaint 'A' and 'B' schedule properties covering Ac.0-08 cents of land purchased by the 2nd defendant from the 4th defendant and for consequential reliefs. Hence, the suit.

3) The defendant Nos.1 and 2 filed their Written Statement.

The defendant Nos.3 and 4 filed adoption memo adopting the written statement of D-1 and D-2. The defendants denied the case of the plaintiff.

It is the case of the defendants that Mallela Pedda Narayana and Chinna

Narayana purchased the land in Sy.No.243-E, but not in Sy.No.243-E3.

One of the original purchasers Mallela Chinna Narayana had three sons namely., 1) Pedda Narayana, 2) Chinna Narayana and 3) Bala Narayana and as the purchaser Mallela Pedda Narayana had no sons, the property purchased under sale deed dt.12.12.1942 was in possession and 5 enjoyment of Mallela Chinna Narayana only and the property was devolved on the three sons of Mallela Chinna Narayana namely., 1)

Pedda Narayana, 2) Chinna Narayana and 3) Bala Narayana with equal rights with an extent of Ac.0-08 cents each. Among them Pedda Narayana had a son by name Narayana, who is no more now and a daughter by name Narayanamma who is alive. She and her daughter are having Ac.

0-08 cents of site in the suit survey number and she gave her daughter to 2nd degree Chinna Narayana in marriage. The last son Bala Narayana had a son by name Lakshmi Narayana and he died recently leaving his wife the 4th defendant as his only legal heir. The 4th defendant sold Ac.0-08 cents, which is the share of her father-in-law Bala Narayana to the 2nd defendant for consideration under a registered sale deed dt. 01.10-2008 and delivered possession to her. After purchase of the said site, the 2nd defendant had constructed a house over the said site with a compound wall. The genealogy chart showing the legal heirs of Mallela Narayana was filed along with the written statement. Even if the sale in favour of the plaintiff is true, the plaintiff will get right over Ac.0-08 cents of site only, but not Ac.0-24 cents of site, as her vendors together are having only Ac.0-08 cents of site. The legal heirs of 2nd degree Pedda Narayana have not executed any such sale deed. The Vendors of the plaintiff were not in possession of Ac.0-24 cents of site at any point of time. The plaintiff suppressed several material facts and filed this false suit. The relationship mentioned in the plaint from the original owners to the plaintiff is not correct. The defendants finally urged for dismissal of the suit.

4) Pending suit the plaintiff amended the plaint as per the orders of this court in I.A.No.347/2012 dt.25.09.2012 and incorporated in the plaint that the defendants completed the constructions of the house in 'A' schedule property pending suit and sought for the relief of mandatory injunction for removal of the construction made by the defendants.

6

5) The 2nd defendant filed her additional written statement stating that she made the constructions prior to filing of the present suit and she has not made any constructions after filing of the suit.

6) The plaintiff filed rejoinder pleading that pending suit the 1st and 2nd defendants highhandedly made the constructions and she filed the photographs of the constructions made by the defendants in the suit property highhandedly and those photograph disprove the allegations of

D-1 and D-2 that the constructions made long time before the filing of the suit. The constructions made after filing of the suit and hence they are liable to be removed by way of mandatory injunction.

7) Basing on the above pleadings, the following issues and

additional issues are settled for trial:

1) Whether the plaintiff is entitled for declaration of right and title over 'A' and 'B' schedule properties by virtue of sale deed dt.15.07.2008?

2) Whether the plaintiff is entitled for recovery of possession from the defendants in respect of the 'A' schedule property?

3) Whether the plaintiff is entitled for permanent injunction as prayed for?

4) To what relief ?

Additional Issues:-

1) Whether the plaintiff is entitled to grant of mandatory injunction directing the defendants to remove the unlawful constructions made in 'A' and 'B' schedule properties? and Second issue already framed is

struck out and re-framed as follows?

2) Whether the plaintiff is entitled for recovery of possession from the defendants in respect of 'A' and 'B' schedule properties?

8) During the course of trial, the plaintiff examined herself as

PW.1 and she marked the original sale deed dt.26.02.2009 executed by

Mallela Lakshmi Narayana, her brother, in her favour as Ex.A-1, the registered sale deed dt.15.07.2008 executed by the Mallela Pedda

Narayana and Mallela Chinna Narayana, her brothers, in her favour as

Ex.A-2, Registration copy of registered sale deed dt.22.12.1942 as 7

Ex.A-3, Office Copy of Legal Notice dt.22.09.2008 as Ex.A-4, Postal receipt as Ex.A-5, Served postal acknowledgment of 4th defendant as

Ex.A-6, Positive Photographs of the suit schedule property as Exs.A-7, A- 8, A-9 and A-10 and the negatives of the positive photographs as Ex.A-11.

The defendants examined the 2nd defendant as DW.1, the 1st defendant as

DW.2, the 4th defendant as DW.3 and one Juturu Chandra Sekhar Reddy as DW.4. The defendants marked the genealogy chart showing the L.Rs of Mallela Narayana as Ex.B-1 and the certified copies of affidavit, petition and order in I.A.No.31/2009 in O.S.No.16/2009 on the file of the Junior

Civil Judge's Court, Tadipatri as Ex.B-2.

9) Heard both sides.

Issue No.1:- Whether the plaintiff is entitled for declaration of right and title over 'A' and 'B' schedule properties by virtue of sale deed dt.15.07.2008?

10)The plaintiff as PW.1 on one hand and DW.1 to DW.4 on the other hand stated in their chief-examination affidavits the facts of their respective cases as per their respective pleadings. Both parties marked documents on their behalf as enumerated above. Both parties cross-examined each other.

11)The plaintiff seeks the relief of declaration of right and title over ‘A’ and ‘B’ schedule properties of the plaint basing on a sale deed dt.15.07.2008 which was executed by Mallela Pedda Narayana and

Mallela Chinna Narayana in respect of Ac.0-24 cents of land in Sy.No.243-

E3 of Puli Proddutur Village. It is the case of the plaintiff that the original purchaser Mallela Pedda Narayana had no sons and the Ac.0-24 cents of land was in possession and enjoyment of the Mallela Chinna Narayana and after the demise of the Mallela Chinna Narayana the said land devolved on his three sons namely., Mallela Pedda Narayana, Mallela

Chinna Narayana (the vendors of the plaintiff) and Mallela Lakshmi

Narayana and in the family arrangements her vendors Mallela Pedda

Narayana and Mallela Chinna Narayana acquired exclusive rights over 8

Ac.0-24 cents of land and they sold the same to the plaintiff. The 4th defendant without any right, sold Ac.0-08 cents of the said Ac.0-24 cents of land to the 2nd defendant without valid right and title. On the other hand it is the case of the defendants that both the original purchasers of Ac.

0-24 cents of land in Sy.No.243-E3 of Puli Proddutur Village are no more and the purchaser Mallela Pedda Narayana had no sons and the said property was in exclusive possession and enjoyment of Mallela Chinna

Narayana and after the demise of the said Mallela Chinna Narayana, the said property devolved upon his three sons namely., Mallela Pedda

Narayana, Mallela Chinna Narayana and Mallela Bala Narayana and these three brothers get Ac.0-08 cents each in the total Ac.0-24 cents of land which was possessed and enjoyed by original purchaser Mallela

Chinna Narayana. Among these three brothers Mallela Pedda Narayana had one son and one daughter and his son died and his daughter

Narayanamma is alive. Mallela Chinna Narayana has three sons and three daughters namely., 1) Mallela Pedda Narayana, 2) Mallela Chinna

Narayana, 3) Mallela Lakshmi Narayana, 4) Lakshmi Devi (Plaintiff), 5)Narayanamma and 6) Lakshmi Narayanamma. The third brother Mallela

Bala Narayana had one son by name Lakshmi Narayana and he died leaving behind his wife the 4th defendant as his sole legal heir. The daughter of Pedda Narayana by name Narayanamma gets Ac.0-08 cents, three daughters and three sons of Chinna Narayana get Ac.0-08 cents and D-4 get Ac.0-08 cents of her father-in-law in the total extent of Ac.0-24 cents. D-4 being the legal heir of last son of Mallela Chinna Narayana by name Bala Narayana sold her share of Ac.0-08 Cents of site to the 2nd defendant for a valid consideration and delivered possession of the same to the 2nd defendant and the said property is ‘A’ and ‘B’ schedule of the plaint. The vendors of the plaintiff had no right to sell the total extent of

Ac.0-24 cents of land to the plaintiff.

9

12)In support of the plaint, the plaintiff filed a memo of genealogy of Mallela Narayana. But the plaintiff did not mark the same for the reasons best known to her. Perhaps she might have thought that it forms part of the plaint and it need not be marked. As per the said genealogy Mallela Narayana had three sons namely., Pedda Narayana,

Chinna Narayana, who are the original purchasers of Ac.0-24 cents of land and one Lakshmi Narayana. The purchaser Pedda Narayana was shown as having no male issues and having a female issue by name

Narayanamma. The original purchaser Chinna Narayana was shown as having three sons and a daughter namely., 1) Pedda Narayana, 2) Chinna

Narayana, 3) Lakshmi Narayana and 4) Lakshmi Devi i.e., plaintiff. The defendants filed the genealogy of Mallela Narayana along with their written statement and marked the same as Ex.B-1. In Ex.B-1, Mallela

Narayana was shown as having two sons namely., Pedda Narayana and

Chinna Narayana, who are the original purchasers of Ac.0-24 cents of land. The original purchaser Pedda Narayana was shown as died issueless. Original purchaser Chinna Narayana was shown as died leaving behind him three sons namely., Pedda Narayana, Chinna

Narayana and Bala Narayana. Among these three brother Pedda

Narayana was shown as died leaving behind him his son Narayana and daughter Narayanamma and the son Narayana was shown as died and

Narayanamma was shown as alive. The second son Chinna Narayana was shown as died leaving behind him three sons and three daughters namely., 1) Pedda Narayana (alive), 2) Chinna Narayana (alive), 3)

Lakshmi Narayana, 4) Lakshmi Devi (Plaintiff), 5)Narayanamma and 6)

Lakshmi Narayanamma. The third brother was shown as died leaving behind him his only son Lakhmi Narayana and his only son was shown as died leaving behind him his wife the 4th defendant as his sole legal heir.

The plaintiff did not speak in her evidence about the genealogy of Mallela 10

Narayana filed by her in her evidence. DWs.1 to 3 deposed in their evidence about Ex.B-1 genealogy of Mallela Narayana as filed by them.

The plaintiff as PW.1 admitted in her cross-examination that her father

Chinna Narayana was having one elder brother by name Pedda Narayana and one younger brother by name Bala Narayana; her senior paternal uncle Pedda Narayana was having one son by name Narayana and one daughter by name Narayanamma and his son Narayana is not alive and he died at his childhood; her junior paternal uncle Bala Narayana was having a son by name Lakshmi Narayana and the said Lakshmi Narayana died about 4 years ago and the 4th defendant is the wife of the said

Lakshmi Narayana. She also admitted that they are three daughters and three sons to her parents; executants of Ex.A-2 are her younger brothers; she has another younger brother by name Lakshmi Narayana (executant of Ex.A-1); she has one elder sister by name Narayanamma and one younger sister by name Lakshmi Narayanamma and they are alive. These admissions of PW.1 categorically proved the existence of second degree and third degree persons of the Ex.B-1 genealogy. These admissions of

PW.1 show that her father Chinna Narayana had elder brother by name

Pedda Narayana and younger brother by name Bala Narayana. But in her genealogy she had not shown the younger brother of her father Bala

Narayana and instead of Bala Narayana she showed one Lakshmi

Narayana as the younger brother of her father. PW.1 admitted that she has two sisters, but in her genealogy she did not show her sisters. She admitted that the elder brother of his father Pedda Narayana had one son and he died. But in her genealogy she did not mention the said fact and she showed Pedda Narayana as male-issueless. She also suppressed the legal heirs of Bala Narayana i.e., Lakshmi Narayana and D-4 in her genealogy. DWs.1 to 4 categorically stated in their evidence about the genealogy filed by them along with their written statement. Nothing was 11 elicited in their cross-examination to disprove the genealogy of Mallela

Narayana as filed by them. On the other hand the defendants by eliciting the above admissions from PW.1 have categorically proved that the genealogy filed by the plaintiff as wrong and the genealogy filed by the defendants as correct.

13) No where in her plaint the plaintiff stated that her vendors are her own brothers and one of the original purchasers by name

Mallela Chinna Narayana is her own father. But from the suggestions put by her to DWs.1 to 3 it is understood that she claims one of the original purchaser Mallela Chinna Narayana to be her father and from her own admissions in her cross-examination the executants of the sale deed (Ex.A-2) in her favour and the executant of Ex.A-1 sale deed are her own brothers. From the suggestions put by her to the witnesses of the defendant, it is the case of the plaintiff that her father and his brother

Pedda Narayana purchased the suit schedule properties in the year 1942 and the father-in-law of D-4 has nothing to do with the suit schedule property and the witnesses denied those suggestions. But for the first time the plaintiff put up such case in the cross-examination of the witnesses of the defendants. The plaintiff did not put up the said plea in her plaint. She did not even describe one of the original purchasers by name Chinna

Narayana as her father nor did she describe her vendors Mellala Pedda

Narayana and Chinna Narayana as her brothers. It seems that the plaintiff put such suggestions to the witnesses of the defendants for the purpose of this suit. However it is well settled principle of law that any amount of evidence without the pleadings is inadmissible. Further the plaintiff as

PW.1 has not stated in her own chief-examination the relationship of one of the original purchasers and her vendors with her. Therefore, it is held that the plaintiff failed to prove that one of the purchasers Mallela Chinna

Narayana is her father.

12

14)Further the plaintiff as PW.1 categorically admitted in her cross-examination that her father and his brothers acquired lands from their father. This admission of PW.1 makes it clear that her father did not purchase any property and that her father and his brothers acquired the lands from their father. Thus it is proved that the father of the plaintiff and his elder brother Pedda Narayana did not purchase Ac.0-24 cents of land as alleged by the plaintiff in her suggestions to the witnesses of the defendants. From the above discussion it is held father of the plaintiff

Chinna Narayana did not purchase the Ac.0-24 cents of land along with his elder brother Pedda Narayana, but they along with their brother Bala

Narayana acquired the lands from their father and that her father alone has no right or title over the total extent of Ac.0-24 cents. Apparently as these three brothers derived lands from their father, they should have equal rights in such properties, which is exactly the case of the defendants.

15)In the plaint as well as in her chief-examination affidavit the plaintiff pleaded and stated that as per the family arrangements in between two brothers namely., Pedda Narayana and

Chinna Narayana and Lakshmi Narayana, the two brothers Pedda

Narayana and Chinna Narayana acquired exclusive right over the property and they sold the same to the plaintiff. In her cross-examination PW.1 admitted that she has no written documents to evidence that Pedda

Narayana, Chinna Narayana and Lakshmi Narayana had entered into a family agreement. The plaintiff, as admitted by her, has not filed any written document to prove the family arrangement between her three brothers and nor did she examine any of the members of her family to prove the said family arrangements. Quite contrary to this plea of the plaintiff, Ex.A-1 original acceptance deed dt.26.02.2009 shows that the executant Mellala Chinna Narayana, who is the brother of the plaintiff, 13 recited in it that at the time of execution of Ex.A-2 he was not available and he received his share in the sale consideration from his brothers and that he is giving his share in the property to the plaintiff. From the recitals of Ex.A-1 it is clear that no family settlement was effected between three brothers and that two brothers Mallela Pedda Narayana and Mallela China

Narayana got exclusive rights over the total extant of Ac.0-24 cents of land. Thus it is held that the plaintiff failed to prove the partition between her three brothers and consequently she failed to prove that her two brothers have right to sell the same to the plaintiff under Ex.A-2. Further the father of the plaintiff has three sons and three daughters. The executants of Ex.A-1 and Ex.A-2 are the three sons, the plaintiff,

Narayanamma and Lakshmi Narayamma are three daughters. The plaintiff along with her sisters also get share in the property of her father. But the plaintiff has not explained as to why she and her sisters did not acquire any right in the property of their father. It is not the case of the plaintiff that she and her sisters relinquished their rights in the property earlier to Ex.

A-2. It is not the case of the plaintiff that she and her sisters have no right or share in the property of their father. It is not the case of the plaintiff that family settlement was effected between all the six children of her father and that Ac.0-24 cents of lands fell to the share of his two brothers only and her another brother, she and her sisters got other properties.

Therefore, it is held that the plaintiff also failed to prove how her brothers

Pedda Narayana and Chinna Narayana got exclusive rights over the total extent of Ac.0-24 cents of land.

16)As already stated above the defendants with their evidence have categorically proved that Narayanamma daughter of Pedda

Narayana, the plaintiff along with her brothers and sisters being the children of Chinna Narayana and D-4 being the daughter-in-law of Bala

Narayana would get each Ac.0-08 cents of land in the total extent of Ac.0- 14 24 cents of land and as such the sale deed executed by D-4 in favour of

D-2 is a valid one and binding on the plaintiff.

17)The plaintiff cross-examined the witnesses of the defendants with regard to the defects in their case. In Sajana Granites,

Madras and another Vs. Manduva Srinivasa Rao and others,

reported in 2002 (1) ALT 466 (D.B), the division bench of our Hon'ble

High Court at Paragraph 10 held that,

“the plaintiff who files the suit for declaration of

title shall succeed on the strength of his own

title and not on the weakness of the case of the

defendants and the defendants need not plead

and prove possible defects in the plaintiff's title.

Even if the defendants fail to establish their own

title, the plaintiff must be non-suited if he fails to

establish his title.”

In view of the above precedent, the plaintiff cannot depend upon the weaknesses of the defendants and as such the facts elicited in the cross-examination of Dws.1 to 4 touching the weaknesses of the case of the defendants are not helpful to the plaintiff.

18)The learned counsel for the plaintiff relied on a decision between State of Bihar Vs. Radha Krishna Singh and others

reported in 1983 AIR (SC) 684, wherein the Hon'ble Supreme Court

held that,

“ it is well settled that when a case of a

party is based on a genealogy consisting of

links, it is incumbent on the party to prove

every link thereof and even if one link is

found to be missing then in the eye of law

15

the genealogy cannot be said to have been

fully proved.”

19) Relying on this precedent, the learned counsel for the plaintiff argued that the defendants failed to prove Ex.B-1 genealogy and as such D-4 will not get any share and that the plaintiff is the absolute owner of the plaint schedule property. In the last lines of para 12 above, this court held that the defendants proved the genealogy filed by them not only through their own evidence but also through the admissions of the plaintiff in her cross-examination. Further as stated above the plaintiff shall not depend upon the weaknesses of the defendants. As such it is held that the plaintiff cannot take aid of the above precedent, as she herself filed a wrong genealogy along with her plaint.

20) In view of the above discussion, it is held that the plaintiff failed to prove that her vendors have right and title over the total extent of

Ac.0-24 cents of land and consequently it is held that the plaintiff failed to prove her right and title over the total extent of Ac.0-24 cents. On the other hand the defendants categorically proved that D-4 is entitled to Ac.0-08 cents of site in Ac.0-24 cents of site and as such she is entitled to sell the same to D-2. Accordingly, this issue is answered in favour of the defendants and as against the plaintiff.

21) Additional Issue No.2:- Whether the plaintiff is

entitled for recovery of possession from the defendants in respect of

'A' and 'B' schedule properties?

In view of the finding of this court on Issue No.1 that the plaintiff failed to prove her right and title over the suit schedule properties and the defendants proved the right and title of D-2 over the suit schedule properties, it is held that the plaintiff is not entitled to recovery of possession of 'A' and 'B' schedule properties of the plaint from the defendants.

16

22) Additional Issue No.1:- Whether the plaintiff is

entitled to grant of mandatory injunction directing the defendants to

remove the unlawful constructions made in 'A' and 'B' schedule

properties?

D-2 made constructions 'A' and 'B' schedule properties even prior to the filing of the suit as admitted by the plaintiff as

PW.1. Further D-2 established her right and title over the suit schedule properties and as such she is entitled to make any constructions in her site. Accordingly, it is held that the plaintiff is not entitled to the relief of mandatory injunction.

23) Issue No.3:- Whether the plaintiff is entitled for permanent injunction as prayed for

As the plaintiff failed to establish her right and title over the suit schedule property and as the plaintiff even failed to prove her possession over the suit schedule property, it is held that the plaintiff is not entitled to the relief of the permanent injunction.

24) Issue No.4: To what relief?

In view of the findings of this court on Issue No.1,

Additional Issue No.2, Additional Issue No.1, Issue No.3, it is held that the

suit filed by the plaintiff deserves to be dismissed.

25) In the result, the suit filed by the plaintiff is dismissed with costs.

Dictated to the Personal Assistant, transcribed by him,

corrected and pronounced by me in the open Court, on this the 12 th day of December, 2014.

JUNIOR CIVIL JUDGE

TADIPATRI.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

PLAINTIFF DEFENDANT

PW-1Kayapati Laxmidevi.DW-1Polimera Bharathi. PW-2M. Narayana.DW.2Polimera Venkata Ranga Reddy.

17

PW-3T. Ramesh (Eschewed)DW.3Mallela Prameela DW.4Juturu Chandrasekhar Reddy.

EXHIBITS MARKED FOR

PLAINTIFF DEFENDANT

Ex.A-1Original sale deed Ex.B-1Genealogy chart showing the dt.26.02.2009 executed by Legal Heirs of Mallela Narayana. Mallela Lakshmi Narayana. Ex.A-2The registered sale deed Ex.B-2Certified copies of affidavit, dt.15.07.2008 executed by petition and order in the Mallela Pedda Narayana I.A.No.31/2009 in and Mallela Chinna O.S.No.16/2009 on the file of the Narayana.Junior Civil Judge's Court, Tadipatri . Ex.A-3Registrationcopyof registeredsaledeed dt.22.12.1942 Ex.A-4Office Copy of Legal Notice dt.22.09.2008. Ex.A-5 Postal receipt Ex.A-6Served postal acknowledg- ment of 4th defendant. Exs.A-7 Positive Photographs of the to suit schedule property. A-10 Ex.A-11Negatives of the positive photographs.

J.C.J.

1

IN THE COURT OF THE JUNIOR CIVIL JUDGE, TADIPATRI

Present:- Sri S.KALEEMULLA, JUNIOR CIVIL JUDGE, TADIPATRI.

Monday, the 29 th day of August, 2016

E.P.No. 7 of 2016

in

O.S.No. 5 of 2012

Between:-

R. Sunkanna S/o. R. Santenna, Hindu, aged about 53 years, Driver in A.P.S.R.T.C, Resident of D.No.15/1596, Vijayanagar Colony, Tadipatri Town. … Petitioner/Decree Holder.

And

A. Sreenivasulu @ Erikala Sreenivasulu S/o. Erikala Veeranna, Hindu, aged about 40 years, Working as Cook in B.C Welfare Hostel, Near Collectorarte, Bangalore Road, Anantapuramu District. …Respondent/Judgment Debtor.

This E.P., coming on 22-08-2016 before me for final hearing in the presence of Sri C. Ramesh Natha Reddy, Sri K. Sankara Reddy, Sri Y. Haneef Basha and Sri D.Sivarama Krishna, Advocates for the Petitioner/Decree Holder and of Sri K. Damodar, Advocate for the Respondent/Judgment Debtor, having heard both sides, upon perusing the material on record, and the matter having stood over for consideration till this day, the court made the following:-

O R D E R

1.This is an Execution Petition filed by the Petitioner/Decree Holder under

Order 21 Rules 54, 64 and 66 of C.P.C for sale of 1/6th share of Respondent/J.Dr in

Ac.3-00 cents of land in Sy.No.426 of Puppula Village fields of Yadiki Mandal with specific boundaries for realisation of the E.P amount.

2.The case of the Petitioner/Decree Holder as per the affidavit filed in support of the E.P is that, after passing of the decree, he made several demands to the respondent to pay the decretal amount, but the respondent failed to pay the amount due to him and therefore, he filed an E.P for attachment of the salary of the respondent and he not pressed the said E.P as there was no attachable portion of his salary. Hence, he filed the present E.P. The E.P schedule property is an agricultural land and the same is the joint family property of the respondent, his four brothers and their father and the respondent is having joint 1/6th share in the said property and he 2 has salable interest over 1/6th share in the said property and he is in joint possession and enjoyment of the same along with his brothers and their father. Hence, the E.P.

3.The Respondent/Judgment Debtor filed his counter stating that he has no any share in the E.P schedule property and he has already relinquished his right over the said property long back and as such the E.P schedule property absolutely belongs to his father only. The respondent/J.Dr finally urged for dismissal of the E.P.

4.Both parties did not adduce any evidence on their behalf.

5.Heard both sides.

6.Now the point for consideration is :

“ Whether the1/6 th share of the Respondent in E.P schedule property is liable for attachment and sale?” 7. P O I N T : -

The respondent admits that the E.P schedule property belongs to his family i.e., his father. But it is his case that he relinquished his right long back in the

E.P schedule property and as such the whole E.P schedule property is the absolute property of his father. But the respondent/J.Dr did not file any documents to show that he relinquished his right in the suit schedule property. Therefore, it is held that the Petitioner/D.Hr proved that the respondent/J.Dr has 1/6th salable share in the E.P schedule property. Accordingly, this point is answered.

8.In the result, the E.P is allowed. The 1/6th share of E.P schedule property was already attached on 24.02.2016. For filing of S.Ps and E.Cs. Call on 15.09.2016.

Dictated to the Personal Assistant, transcribed by him, corrected and

pronounced by me in the open court, on this the 29 th day of August, 2016.

JUNIOR CIVIL JUDGE,

TADIPATRI.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR BOTH SIDES

NIL J.C.J.,

TADIPATRI.

3