JCJ, YMGR -1 of 23- O.S.NO.69/2014
IN THE COURT OF THE JUNIOR CIVIL JUDGE, YEMMIGANUR.
PRESENT:- SRI S. VASU DEV,
JUNIOR CIVIL JUDGE,
YEMMIGANUR.
WEDNESDAY, THIS THE 27 TH DAY OF MAY, 2020.
Original Suit No.69/2014.
Between:-
Kuruva Naganna @ Peddodu … Plaintiff.
And
1. Pedda Venkata Ramudu, [died by L.Rs Defendants 6 and 7]
2. Chinna Venkata Ramudu
3. Kuruva Pedda Yankanna
4. Kuruva Pedda Lakshmanna
5. Kuruva Venkatesu
6. Kuruva Chandra Sekhar
7. Kuruva Ranganna, [died by L.R defendant No.6] … Defendants.
This suit is coming on 26.05.2020 before me for final hearing in the presence of Sri M. Jagadiswara Goud, and Sri Shaik Moinuddin, Advocates for the plaintiff; and of Sri M.K. Guru Raja Rao, Advocate for defendants 1 to 5, and of Sri K. Mallikarjuna, Advocate for defendants 6 and 7, and having stood over for consideration till this day, this court delivered the following:
J U D G M E N T
This suit is filed by the plaintiff against the defendants seeking partition of plaint schedule property into three equal shares and to allot one such share to the plaintiff by metes and bounds and also for mesne profits, and for costs, in the interests of justice.
JCJ, YMGR -2 of 23- O.S.NO.69/2014
02. The brief facts of the Plaint are as follows:-
The plaintiff and defendants 1 and 2 have jointly purchased the plaint schedule property under registered sale deed, dated: 26.07.1978 for valuable consideration of Rs.20,000/- from its vendor and on the same day, the vendor of said property had delivered the possession to the plaintiff and defendants 1 and 2 and since then they were in joint possession and enjoyment over the said property without any interruption. The plaintiff and defendant No.2 were managing the plaint schedule property and rendering the accounts. As the defendant No.2 is managing the plaint schedule property, the original sale deed was with defendant No.2 and as such the certified copy of registered sale deed is filed. The defendants 1 and 2 started mismanaging the plaint schedule property by secreting the income of joint property and also not rendering proper accounts and the defendant
No.2 had also got executed nominal sale deed in favour of defendants 3 to 5 to deprive the plaintiff’s share. The defendants 1 and 2 are not furnishing account to joint family and they are acting against the interest of plaintiff.
On 31.10.2013, the plaintiff orally demanded the defendants 1 and 2 to partition the plaint schedule property and to give plaintiff’s share, but the defendants 1 and 2 had not showed any interest to give the share of plaintiff. Hence, the plaintiff is constrained to file the present suit for partition and separate possession.
03. The Defendant No.5 filed written statement denying the allegations made in the plaint and further contended that the plaint schedule property was sold by the plaintiff, defendants 1 and 2 jointly by way of sale agreement dated: 27.06.1989 for valuable consideration of
Rs.36,500/- in favour of one Kuruva Sivanna, S/o Kuruva Mallaiah and the total sale consideration amount was paid by the said Kuruva Sivanna and possession was also delivered to him. Since from the date of sale
JCJ, YMGR -3 of 23- O.S.NO.69/2014 agreement, the said Kuruva Sivanna was in possession and enjoyment over the suit land. The said Kuruva Sivanna and his brothers was living jointly under one roof at the time of purchase of plaint schedule property. The said
Kuruva Sivanna and his brothers got partitioned their ancestral properties as well as the plaint schedule property and in the said partition, the plaint schedule property along with other properties were fallen to the share of defendants 3 and 5 and they were in joint possession and enjoyment over the said property till today without any interruption from anyone. Basing on the sale agreement executed by the plaintiff, defendants 1 and 2 in favour of Kuruva Sivanna, the plaintiff and defendants 1 and 2 on demand of said
Kuruva Sivanna and his brothers, who are defendants 3 to 5, agreed to execute regular registered sale deed in favour of defendants 3 to 5 and at the instance of plaintiff, defendants 1 and 2, the defendants 3 to 5 purchased the registration stamps and prepared document with the document Writer, but the defendants 1 and 2 only came to Sub-Registrar’s
Office to execute regular sale deed in favour of defendants 3 to 5, but in the meanwhile, the plaintiff and defendant No.1 did not sign on the document and stamp papers became waste. The defendant No.2 alone executed regular sale deed in favour of defendants 3 to 5. Thus, defendants 3 to 5 became absolute owners of the plaint schedule property and they got right, title and possession over the plaint schedule property. The revenue authorities also recognized their right and title over the plaint schedule property and they were also issued with pattadar pass book and title deed in the name of defendants 3 to 5. The defendants 3 to 5 also paid cist to the suit land till now. The plaintiff and defendant No.1 got colluded with each other and got created false documents and filed the present suit only to grab the plaint schedule property. The plaintiff is well aware about execution of sale agreement, dated: 27.06.1989 in favour of Kuruva
JCJ, YMGR -4 of 23- O.S.NO.69/2014
Sivanna. The plaintiff is not entitled any relief as prayed for. The plaintiff ought to have filed the suit for declaration of title and possession and the suit is barred by limitation. The defendants also perfected the suit land by way of adverse possession. The plaintiff had suppressed the true facts and filed the present suit and there are no merits in the suit and prayed to dismiss the suit with costs.
04. Defendants 1 to 4 filed adoption memo to adopt the written statement of defendant No.5.
05. During the pendency of suit, defendant No.1 died leaving behind defendants 6 and 7 as his legal heirs and they were added as per orders in
IA No.377/2015, dated: 03.10.2015.
06. Defendant No.6 filed additional written statement denying the allegations made in the plaint and further contended that the plaint schedule property is their ancestral property and plaintiff is entitled for 1/3rd share. The defendants 6 and 7 being legal heirs of defendant No.1, entitled for 1/3rd share in the plaint schedule property. The Defendant No.2 is his junior paternal uncle also entitled for 1/3rd share in the plaint schedule property and he got created a nominal document in favour of defendants 3 to 5 in respect of plaint schedule property. The Defendants 3 to 5 are strangers and they had obtained a nominal document from defendant No.2 by colluding with him in respect of plaint schedule property without any manner of right and prayed to decree the suit with costs.
07. The Defendant No.7 filed adoption memo, to adopt the additional written statement of defendant No.6.
08. The defendant No.7 also died during pendency of suit. He died unmarried and issue-less.Defendant No.6 was the only legal heir of
Defendant No.7 and he was already on record.
JCJ, YMGR -5 of 23- O.S.NO.69/2014
09. Basing on the above pleadings of the parties, the following issues are settled for trial:
[1] Whether the plaintiff and defendants 1 and 2 jointly sold
the suit schedule land to one Kuruva Sivanna on 27.06.1989 under
an unregistered agreement of sale?
[2] Whether the suit schedule property is not in joint
possession of plaintiff and defendants 1 and 2 as on the date of
filing suit?
[3] Whether the Court fee paid by the plaintiff is not correct?
[4] Whether the suit filed by the plaintiff is barred by
limitation?
[5] Whether the plaintiff is entitled for partition of suit
schedule site into three shares and allot one such share to him?
[6] To what relief?
10. On behalf of the plaintiff, the sole plaintiff himself was examined as PW1 and got marked Exhibit A1. The supporting witnesses are examined as PW2 and PW3. The plaintiff got marked Exhibit A2 through DW3. On behalf of defendants, the defendant No.4 was examined as DW1 and got marked Exhibits B2 to B7. Exhibit B1 was marked through PW1. Defendant
No.5 was examined as DW2. Defendant No.2 was examined as DW3. The
Supporting witness was examined as DW4. The brother of defendants 3 to 5 was examined as DW5.
11. Heard both sides.
12. The Learned Counsel for plaintiff argued that, the plaint schedule property was purchased by him along with defendants 1 and 2 jointly under
Exhibit A1 from its lawful owner and since then they were in joint possession and enjoyment of said property. The plaint schedule property has been cultivating by plaintiff, defendants 1 and 2 jointly and they are sharing the
JCJ, YMGR -6 of 23- O.S.NO.69/2014 profits of said property. The defendants 1 and 2 started misusing the joint property and the plaintiff insisted the defendants 1 and 2 to come forward for amicable partition, but they failed to do so. The plaintiff also came to know that the defendant No.2 got executed nominal sale deed in favour of defendants 3 to 5 to deprive the share of the plaintiff. Hence, the plaintiff is constrained to file the suit for partition and separate possession of his 1/3rd share. To prove the case of plaintiff, he himself was examined as PW1 and got marked Exhibit A1. The supporting witnesses were examined as PW2 and PW3. The plaintiff by examining PW1 to PW3, he established that the plaint schedule property was the joint property of PW1, defendants 1 and 2.
During pendency of suit, defendant No.1 died leaving behind defendants 6 and 7. The Defendant No.7 also died unmarried and issue-less. The defendants 3 to 5 are the purchasers of plaint schedule property from defendant No.2. The defendant No.2 alone has no right to execute the registered sale deed in favour of defendants 3 to 5 in respect of plaint schedule property for entire extent. The defendant No.2 is having right only to his 1/3rd share to execute sale deed in favour of defendants 3 to 5, but the defendant No.2 got executed sale deed to entire extent of plaint schedule property in favour of defendants 3 to 5. The Defendants 3 to 5 are claiming their right, title and possession basing on the unregistered sale agreement ought to have executed by the plaintiff, defendants 1 and 2 in favour of one Kuruva Sivanna who is brother of defendants 3 to 5. The plaintiff and his brothers i.e., defendants 1 and 2 never executed any sale agreement in favour of said Kuruva Sivanna. Further, the said Kuruva
Sivanna is no way connected to defendants 3 to 5. The plaintiff is denying the relationship between Kuruva Sivanna and defendants 3 to 5. The defendants failed to establish the relationship between the said Kuruva
Sivanna and defendants 3 to 5. There was no sale consideration passed to
JCJ, YMGR -7 of 23- O.S.NO.69/2014 defendant No.2 basing on the alleged nominal sale deed executed by him in favour of defendants 3 to 5. The sale deed executed by defendant No.2 in favour of defendants 3 to 5 is nominal and sham document and it is not binding on the plaintiff. The defendants also failed to prove that the plaintiff, defendants 1 and 2 got executed unregistered sale agreement in favour of
Kuruva Sivanna. The plaintiff had proved his possession and enjoyment over the plaint schedule property by adducing cogent oral and documentary evidence and prayed to decree the suit with costs.
13. The Learned Counsel for defendants 3 to 5 argued that, the plaintiff, defendants 1 and 2 are own brothers. The plaintiff, defendants 1 and 2 got purchased the plaint schedule property on 26.07.1978 and at the time of purchase of plaint schedule property, defendant No.2 was minor and his father got purchased the plaint schedule property as guardian on behalf of defendant No.2. The plaintiff, defendants 1 and 2 got executed Exhibit B2 sale agreement, dated: 27.06.1989 in favour of Kuruva Sivanna who is the elder brother of defendants 3 to 5 for Rs.36,500/- and the entire sale consideration amount was paid by the said Kuruva Sivanna to them and they also delivered possession of the plaint schedule property to him and since from the date of sale agreement, the said Kuruva Sivanna was in possession and enjoyment over the plaint schedule property. The said
Kuruva Sivanna and defendants 3 to 5 orally got partitioned their joint family properties and in said partition, the plaint schedule property and other properties fallen to the share of defendants 3 and 5. The defendants 3 to 5 insisted the plaintiff and defendants 1 and 2 to execute regular registered sale deed in their favour and accordingly, the defendants 3 to 5 purchased the registered stamps and prepared document with the help of document Writer, but the plaintiff, defendants 1 and 2 did not turn up to execute the registered sale deed in their favour. The defendant No.2 alone
JCJ, YMGR -8 of 23- O.S.NO.69/2014 got executed the registered sale deed, dated: 07.04.2012 in favour of defendants 3 to 5. These defendants also obtained pattadar pass book and title deed in their favour and they are also paying cist to the Government.
The plaintiff was having knowledge about the execution of sale agreement,
dated: 27.06.1989 in favour of Kuruva Sivanna and also receiving of sale
consideration amount from him and delivered possession over the plaint schedule property. The plaintiff in collusion with defendant No.1 had filed this false suit against these defendants only to grab the plaint schedule property. The suit filed by the plaintiff is not maintainable and it is barred by limitation. The plaintiff had not approached the Court with clean hands. The plaintiff along with defendants 1 and 2 were never in joint possession and enjoyment over the plaint schedule property at any time and prayed to dismiss the suit with costs. To disprove the case of plaintiff, defendant No.4 was examined as DW1. The supporting witnesses were examined as DW2 to
DW5. The defendants 3 to 5 by examining their brother as DW5 had proved the due execution of sale agreement, dated: 27.06.1989. PW2 and PW3 also admitted about the execution of sale agreement by PW1 along with defendants 1 and 2 in favour of DW5. PW1 had taken inconsistent plea that they had cancelled the sale agreement executed in favour of DW5. No evidence has been placed by PW1 to prove the said allegation. PW2 and
PW3 also admitted that defendants 3 to 5 were in possession and enjoyment over the plaint schedule property and they have been cultivating the said property. PW2 and PW3 also further admitted that the plaintiff and defendants 1 and 2 are not cultivating the plaint schedule property. PW1 to
PW3 also admitted in their evidence that, DW5 was the brother of
Defendants 3 to 5. The defendants by examining DW1 to DW5 had proved that they are in possession and enjoyment over the plaint schedule property and the said property was not in joint possession and enjoyment of plaintiff
JCJ, YMGR -9 of 23- O.S.NO.69/2014 and defendants 1 and 2 as on the date of execution of sale agreement and it does not fall under ambit of joint property and prayed to dismiss the suit with costs.
14. ISSUE NO.1: Whether the plaintiff and defendants 1 and 2
jointly sold the suit schedule land to one Kuruva Sivanna on
27.06.1989 under an unregistered agreement of sale?
[a] To prove the case of plaintiff, the plaintiff himself was examined as PW1 and he filed his chief affidavit in replica of his plaint allegation. He deposed in his cross examination that, it is true, he had not made the said
Sivanna as a party to the suit; he do not know where the original document of Exhibit A1 was misplaced; advocate for defendant had shown the original registered sale deed, dated: 26.07.1978 to the witness to identify whether the said document was original sale deed executed by Abdul Nabi Sab in his favour and two others; the said original registered sale deed, dated:
26.07.1978 is marked as Exhibit B1; himself and the other defendants had not entered into an agreement of sale, dated: 27.06.1989 in favour of
Sivanna who is the brother of defendants 3 to 5; it is true after the year 1989, he went to Hyderabad for eking livelihood; it is true his family members were staying at Hyderabad; it is true the defendants 3 to 5 had obtained pattadar pass book in respect of Sy.No.20/B; he do not know whether the defendants 3 to 5 had obtained pattadar pass book in respect of suit survey number; the defendants 3 to 5 might have obtained pattadar pass book in their names in the year 1998; he had not given representation either to the MRO or to the RDO for cancellation of pattadar pass book stands in the name of defendants 3 to 5; he know about the pattadar pass book and title deed stands in the name of defendants 3 to 5 in respect of suit survey number; there is no document or receipt to show that his brothers had given his share in the profits derived from the joint family
JCJ, YMGR -10 of 23- O.S.NO.69/2014 property; he know the defendants 3 to 5 are paying tax in respect of the plaint schedule property.
[b] In support of plaintiff, he examined one Kuruva Ranganna as PW2.
He deposed in his chief affidavit that, he know both plaintiff and defendants; he is having land in Sy.No.429/A2, 430/A1 and 211 to an extent of Ac.5.60 cents at Parlapalli village; the plaintiff and his brother purchased the suit land in Sy.No.22/B about 40 years ago and they were in possession and enjoyment over the suit land; on behalf of the plaintiff, his younger brother
Chinna Venkata Ramudu was managing the suit property and rendering the accounts; at the time of purchase, Chinna Venkata Ramudu was minor; the plaintiff and his younger brother were in joint possession and enjoyment over the plaint schedule property; he came to know that defendant No.2 has executed a nominal sale deed in favour of defendants 3 to 5 in respect of plaint schedule property; he also came to know that the plaintiff had executed sale agreement in favour of Kuruva Sivanna and that agreement was cancelled and it was not acted upon; the defendants 3 to 5 are not related to Kuruva Sivanna; the defendants 3 to 5 are not having any right over the suit property; the defendants 3 to 5 got colluded with defendant
No.2 and got created nominal sale deed in their favour; the defendant No.2 is only having 1/3rd share in the plaint schedule property, but he got executed nominal sale deed in respect of total extent of land. He deposed in his cross examination that, it is true at present plaintiff, defendants 2, 6 and 7 never cultivated the suit schedule property jointly; it is true it was mentioned in his chief affidavit at para No.2 that he came to know that the plaintiff got executed sale agreement in favour of one Kuruva Shivanna and that agreement was cancelled and it was not acted upon; he was not present at the time of execution of said agreement; it is true the defendants 3 to 5 are the brothers of said Kuruva Shivanna; it is true at present
JCJ, YMGR -11 of 23- O.S.NO.69/2014 defendants 3 to 5 are cultivating and enjoying the fruits of suit schedule property; he know that defendant No.2 got executed sale deed in favour of defendants 3 to 5 in respect of suit schedule property.
[c] The plaintiff further examined one T. Vishnuvardhan Reddy as
PW3. He deposed in his chief affidavit that, he is having land in Sy.No.365 and 366 to an extent of Ac.2.71 cents at Parlapalli village. The plaintiff and his brother purchased the suit land in Sy.No.22/B about 40 years ago and they were in possession and enjoyment over the suit land. On behalf of the plaintiff, his younger brother Chinna Venkata Ramudu was managing the suit property and rendering the accounts. At the time of purchase, Chinna
Venkata Ramudu was minor. The plaintiff and his younger brother were in joint possession and enjoyment of plaint schedule property. He came to know that defendant No.2 had executed a nominal sale deed in favour of defendants 3 to 5 in respect of plaint schedule property. He also came to know that the plaintiff had executed sale agreement in favour of Kuruva
Sivanna and that agreement was cancelled and it was not acted upon. The defendants 3 to 5 are not related to Sivanna. The defendants 3 to 5 are not having any right over the suit property. The defendants 3 to 5 got colluded with defendant No.2 and got created nominal sale deed in their favour. The defendant No.2 is only having 1/3rd share in plaint schedule property, but he got executed nominal sale deed in respect of total extent of land. He deposed in his cross examination that, he know Sivanna who is the brother of defendants 3 to 5; the said Sivanna is alive; it was mentioned in his chief affidavit that the plaintiff had executed sale agreement in favour of said
Sivanna and the same was subsequently cancelled; thirty years prior to filing of the suit plaintiff, defendants 1 and 2 had cultivated the suit schedule property; witness adds that for last ten years the defendants 3 to
JCJ, YMGR -12 of 23- O.S.NO.69/2014 5 are cultivated; it is true the defendants 3 to 5 had dug bore well in the suit schedule property and drawing water and cultivating the suit land.
[d] To disprove the case of the plaintiff, the defendant No.4 was examined as DW1. He filed his chief-examination affidavit in replica of his written statement and got marked Exhibits B2 to B7. He deposed in his cross examination that, it is true originally the suit schedule property belongs to brothers of Naganna @ Peddodu; it is true Naganna @ Peddodu and his younger brother by name Pedda Venkataramudu had not executed any registered document in respect of suit schedule property in his name; the said Pedda Venkataramudu and Naganna @ Peddodu had not executed sale agreement in his name; witness adds they got executed sale agreement in respect of suit schedule property in the name of his brother
Sivanna; it is true either himself or his brother Sivanna had not issued any notice to Pedda Venkatramudu and Naganna @ Peddodu to execute regular registered sale deed in their favour basing on sale agreement; it is true defendant No.2 got executed sale deed in his favour and in the favour of defendant No.5; he gave cash of Rs.20,000/- to defendant No.2 at the time of registration; he had not given any amount to plaintiff and defendant No.1 at the time of registration of document.
[e] The defendant No.5 was examined as DW2. He also filed his chief- examination affidavit in replica of his written statement. He deposed in his cross examination that, Chinna Venkataramudu i.e., defendant No.2 alone got executed registered sale deed about six years back in his favour and defendant No.4; it is true plaintiff had not executed regular registered sale deed along with Chinna Venkatramudu; they had not issued legal notice to plaintiff and defendant No.1 prior to institution of suit demanding them to execute registered regular sale deed in terms of Exhibit B2; it is true plaintiff, defendants 1 and 2 were own brothers; as on the date of execution
JCJ, YMGR -13 of 23- O.S.NO.69/2014 of Exhibit B2 sale agreement, there was no partition effected among the plaintiff, defendants 1 and 2; they got purchased suit schedule property from the father of plaintiff, defendants 1 and 2; they gave Rs.10,000/- to defendant No.2 at the time of registration; he had not filed partition deed or list to show that himself and his brothers got divided their family properties and the suit schedule property fell to his share.
[f] The defendant No.2 i.e., brother of plaintiff and defendant No.1 was examined as DW3. He filed his chief affidavit stating that, the plaintiff was well aware about the fact that himself and defendants 1 and 2 jointly got sold the suit schedule property to Sivanna under sale agreement, dated:
27.06.1989 for valuable consideration of Rs.36,500/- and also delivered possession of suit land on the date of sale agreement itself. The said transaction took place in the presence of his father. Since from the date of sale agreement Sivanna was in possession and enjoyment over the suit land. The suit land was purchased by Sivanna when he was living in joint family. The said Sivanna and his brothers i.e., defendants 3 to 5 got partitioned their family properties including the suit schedule property. In the oral partition, the plaint schedule property and other properties had fallen to the share of defendants 4 and 5 and since then defendants 4 and 5 are in possession and enjoyment over suit land till today without any interruption from anybody. All the revenue records also stands in the name of defendants 4 and 5 since last 30 years. He got executed sale deed on demand of defendants 3 to 5, but his brothers i.e., plaintiff and defendant
No.1 and his legal heirs avoided to execute the registered sale deed in their favour. The plaintiff was never in possession and enjoyment over the suit schedule property at any time. The plaintiff used to go to Bombay and
Hyderabad for his livelihood. He deposed in his cross examination that, himself, plaintiff and defendant No.1 got partitioned and separated their
JCJ, YMGR -14 of 23- O.S.NO.69/2014 family properties; there was no written document in respect of partition and separation of their family properties; plaintiff got Ac.1.50 cents in partition, defendant No.1 got Ac.1.00 in partition and he got Ac.1.50 cents in partition between their brothers; he had not received any sale consideration amount at the time of execution of sale deed in favour of defendants 3 and 5 in respect of suit schedule property; he had not received sale consideration of
Rs.2,40,000/- from defendants 3 to 5; it is true PW1 and defendant No.1 had not executed Exhibit A2 sale deed in favour of defendants 3 to 5; it is true he is having land an extent of Ac.1.50 cents in suit survey number but he got executed Exhibit A2 sale deed in favour of defendants 3 to 5 for an extent of Ac.4.00; it is true he got executed Exhibit A2 sale deed including the share of defendant No.1; witness adds that as defendant No.1 died and he got sold his share to defendants 3 to 5 under Exhibit A2; defendant No.1 had one wife and two sons; witness adds that the wife of defendant No.1 died prior to the death of defendant No.1; defendants 6 and 7 are the sons of defendant No.1; there were no signatures of defendants 6 and 7 in
Exhibit A2 sale deed; it is true as on the date of execution of Exhibit A2 sale deed the suit schedule property was not in his possession and enjoyment.
[g] The defendants 3 to 5 further examined the supporting witness by name Kuruva Mallaiah as DW4. He deposed in his chief-examination affidavit that, he is having land towards southern side of suit schedule property. Originally, one Sivanna elder brother of defendants 3 to 5 purchased the suit schedule property in the year 1989 and since then he was in possession and enjoyment over the suit land. Later on, in their family partition, the suit schedule property was fallen to the share of defendants 4 and 5. Since then defendants 4 and 5 are in possession and enjoyment over the suit land. All the revenue records also stand in the name of defendants 4 and 5. The plaintiff nor his brothers are no way connected with the suit
JCJ, YMGR -15 of 23- O.S.NO.69/2014 schedule land and they were never in possession and enjoyment over the suit schedule property at any time. During cross examination, he deposed that, the present suit was filed by Naganna against Sivanna and others; the suit survey number 22/B; the total extent of Sy.No.22/B is more than
Ac.10.00; the plaintiff and his brothers are having Ac.4.00 in suit survey number; he do not know about the execution of Exhibit A2 sale deed, but the brother of defendants 3 to 5 by name Sivanna got purchased the suit schedule property under Exhibit B2 sale agreement, dated 36,500/-; the defendants 3 to 5 had obtained pattadar pass book and title deeds in respect of suit schedule property after division.
[h] The brother of defendants 3 to 5 by name K. Sivanna was examined as DW5. He deposed in his chief-examination affidavit that, he got purchased the plaint schedule property under unregistered sale agreement, dated: 27.06.1989 from plaintiff and his brothers defendants 1 and 2 in the presence of their father. At the time of purchase of plaint schedule property, himself and his brothers are in joint possession and enjoyment over the said property. Later, in family oral partition, the plaint schedule property along with other properties was fallen to the share of defendants 4 and 5. Since from the date of oral partition, the defendants 4 and 5 are in possession and enjoyment over the suit property without anybody interruption. All the revenue records also stand in the name of defendants 4 and 5. The plaintiff intentionally and purposefully had not shown him as a party to the suit. He deposed in his cross examination that,
Exhibit B2 sale agreement was executed by PW1, defendants 1 and 2 in his favour; he had not obtained regular registered sale deed basing on Exhibit
B2 sale agreement from PW1, defendants 1 and 2 till today; it is true there were no written document in respect of partition of our family properties between himself and defendants 3 to 5; he is not having any right in
JCJ, YMGR -16 of 23- O.S.NO.69/2014 respect of suit schedule property; witness adds that his brothers i.e., defendants 3 to 5 are having right in plaint schedule property; PW1 is not having any right or share in the suit schedule property.
[i] Coming to the documentary evidence adduced by both parties.
The plaintiff got marked Exhibit A1 i.e., registration copy of sale deed,
dated: 26.07.1978 executed by Mulla Nabi Sab in favour of defendants 1
and 2; Exhibit A2 is the registration copy of sale deed, dated: 07.04.2012 executed by defendant No.2 in favour of defendants 3 to 5. The defendants got marked Exhibits B1 to B7. Exhibit B1 is the Original registered sale deed, dated: 26.07.1978 executed by Mulla Nabi Sab in favour of defendants 1 and 2; Exhibit B2 is the Un-registered sale agreement, dated:
27.06.1989 executed by plaintiff, defendants 1 and 2 in favour of Kuruva
Sivanna i.e., DW5; Exhibit B3 is the original pattadar pass book stands in the name of DW1; Exhibit B4 is the Pattadar pass book in the name of younger brother Venkateshulu of DW1; Exhibit B5 is the 1-B namuna (ROR) stands in the name of brother of DW1 obtained from Mee-seva; Exhibit B6 is the 1-B namuna (ROR) stands in the name of DW1 obtained from Mee-seva and Exhibit B7 is the Adangal/Pahani for fasli 1429 pertaining to Sy.No.22/B.
[j] The undisputed facts of case are that, the plaintiff, defendants 1 and 2 are the absolute owners of the plaint schedule property and got purchased the same under Exhibit A1 registered sale deed. It is also undisputed fact that defendant No.2 got executed Exhibit A2 registered sale deed in favour of defendants 3 to 5.
[k] The main contention of the defendants 3 to 5 is that the plaintiff, defendants 1 and 2 got executed under agreement of sale dated:
27.06.1989 in favour of Kuruva Sivanna and delivered possession to him and since then, he was in possession and enjoyment over the said property.
JCJ, YMGR -17 of 23- O.S.NO.69/2014
Subsequently, the said Kuruva Sivanna and his brothers i.e., Defendants 3 to 5 got partitioned their family properties and in the said partition, the suit schedule property had fallen to the share of Defendants 4 and 5. The defence of the plaintiff is that, they never executed sale agreement in favour of Kuruva Sivanna and it is created document. Initially, the burden is on the plaintiff to prove that the plaintiff along with his brothers i.e., defendants 1 and 2 had not executed sale agreement, dated: 27.06.1989 in favour of Kuruva Sivanna. To prove the same, the plaintiff himself was examined as PW1 and the supporting witnesses were examined as PW2 and
PW3. The plaintiff had admitted about the execution of Exhibit B2 sale agreement in the chief-examination affidavits of PW2 and PW3. The plaintiff had further averred in the chief-examination affidavits of PW2 and PW3 that, the plaintiff had cancelled the said agreement. The plaintiff had also taken another plea that the said Kuruva Sivanna is no way related to the defendants 3 to 5. When coming to the cross-examination of PW1, he himself admitted that the said Kuruva Sivanna was the own brother of defendants 3 to 5. PW2 and PW3 also admitted that Kuruva Sivanna was the brother of defendants 3 to 5. On one hand, the plaintiff says that he never executed sale agreement and on the other hand, he had taken the plea that he got executed sale agreement, but subsequently it was cancelled. The plea taken by plaintiff is totally contradictory. The plaintiff had not taken any steps to send the Exhibit B2 sale agreement dated: 27.06.1989 for expert opinion to show that the signature in the sale agreement does not belong to him. DW3 who is the brother of PW1 and Defendant No.1 admits about the execution of Exhibit B2 sale agreement in favour of DW5. As seen from the plaint averments, the plaintiff had not mentioned anything about the sale agreement either in his plaint or in his evidence. The plaintiff had also not filed any rejoinder denying the allegations made in the written
JCJ, YMGR -18 of 23- O.S.NO.69/2014 statement about the execution of sale agreement. The plaint as well as the evidence of PW1 is also silent about the cancellation of sale agreement. So, from the evidence of PW1, PW2, PW3, DW3 and DW5 coupled with Exhibit
B2, it is established that PW1, DW3 and Defendant No.1 got executed sale agreement in favour of DW5.
[l] On keen perusal Exhibit B2 sale agreement, it recites that the plaintiff along with his brothers i.e., defendants 1 and 2 got sold the plaint schedule property in favour of Kuruva Sivanna for Rs.36,500/- and also delivered possession of the plaint schedule property in his favour and it was further agreed that they will execute registered sale deed in his favour or his choice as and when demanded at his costs. So, it is apparent that, on the date of execution of Exhibit B2 sale agreement itself the possession was also delivered to DW5. From the above discussion, this court concludes that, the plaintiff and defendants 1 and 2 jointly sold the suit schedule land to
DW5 on 27.06.1989 under unregistered agreement of sale. Accordingly, this issue is answered in favour of Defendants 3 to 5.
15. ISSUE NO.2: Whether the suit schedule property is not in
joint possession of plaintiff and defendants 1 and 2 as on the date
of filing suit?
The plaintiff had filed above suit for partition of 1/3rd share in the plaint schedule property. The contention of the plaintiff is that, himself along with defendants 1 and 2 got purchased the plaint schedule property under Exhibit A1 sale deed and since then they were in joint possession and enjoyment over the plaint schedule property and when the plaintiff insisted for amicable partition, the defendants 1 and 2 are evading the same and as such, he got filed the present suit for partition and separate possession.
Further, it is the contention of plaintiff that, defendant No.2 got executed
JCJ, YMGR -19 of 23- O.S.NO.69/2014 nominal sale deed in favour of defendants 3 to 5 by depriving his right. The plaintiff along with defendants 1 and 2 were in joint possession and enjoyment over the plaint schedule property as on the date of filing of the suit. The defence of the defendants is that, the plaintiff, defendants 1 and 2 are never in possession and enjoyment over the plaint schedule property and they got jointly executed sale agreement under Exhibit B2 in favour of
DW5 and since then he was in possession and enjoyment over the said property. As already decided supra in Issue No.1 that, the Plaintiff,
Defendants 1 and 2 got executed Exhibit B2 sale agreement in favour of
DW5 and also delivered possession to him. It is also admitted by plaintiff that defendants 3 to 5 had obtained pattadar pass books in their names in the year 1998 and no representation was given by him to MRO or RDO for cancellation of pattadar pass books stands. PW1 further admitted that defendants 3 to 5 are paying tax in respect of plaint schedule property. It is the evidence of PW2 that, the plaintiff, defendants 2, 6 and 7 never cultivated the plaint schedule property jointly. PW3 testified that, 30 years prior to filing of the suit, the plaintiff, defendants 1 and 2 had cultivated the plaint schedule property and for the last 10 years, defendants 3 to 5 are cultivating the plaint schedule property. PW3 further testified that defendants 3 to 5 had dug bore-well in the plaint schedule property and drawing water in the plaint schedule property. The plaintiff had not filed any scrap of paper to prove his joint possession and enjoyment over the suit schedule property. By virtue of evidences of PW1 to PW3 and DW1 to DW5 coupled with Exhibits B2 to B7, it is established that the plaintiff was never in possession and enjoyment over the plaint schedule property jointly along with his brothers i.e., defendants 1 and 2 as on the date of filing of the suit.
Accordingly, this Issue is answered in favour of defendants.
JCJ, YMGR -20 of 23- O.S.NO.69/2014
16. ISSUE NO.3: Whether the Court fee paid by the plaintiff is not correct?
The plaintiff had valued the plaint schedule property basing on the market value of Rs.4,00,000/-. The plaintiff is claiming 1/3rd share in respect of plaint schedule property. The 1/3rd share of plaintiff comes to
Rs.1,33,333/-. The plaintiff as per his pleadings averred that, he was in joint possession over plaint schedule property along with defendants 1 and 2.
The plaintiff had paid Court fee under section 34(2) of A.P. Court Fee and
Suit Valuation Act. As per Section 34(2) A.P. Court Fee and Suit Valuation
Act, the fixed Court fee is Rs.200/-. Since, the Issues No.1 and 2 are answered in favour of Defendants and it was recognized that plaintiff was not in joint possession over the suit schedule property and he was excluded from the possession as on the date of filing of the suit. Therefore, the plaintiff is directed to pay the required court fee upon the market value of the plaint schedule property under Section 34(1) of A.P.C.F and S.V Act.
Accordingly, this Issue is answered in favour of defendants.
17. ISSUE NO.4: Whether the suit filed by the plaintiff is barred by limitation?
The plaintiff filed suit on 28-07-2014. The defendant No.2 got executed Exhibit A2 sale deed on 07-04-2012 in favour of Defendants 3 to
5. The plaintiff filed the above suit for partition of his share within 3 years from the date of execution of Exhibit A2 sale deed. So, the suit filed by the plaintiff was in time and it was not barred by limitation. Accordingly, this
Issue is answered in favour of Plaintiff.
18. ISSUE NO.5: Whether the plaintiff is entitled for partition
of suit schedule site into three shares and allot one such share to
him?
JCJ, YMGR -21 of 23- O.S.NO.69/2014 [a] Admittedly, the plaintiff, defendants 1 and 2 are the absolute owners of the plaint schedule property. It is also admitted that Defendant
No.2 got executed Exhibit A2 sale deed in favour of Defendants 3 to 5 including the share of Plaintiff and Defendant No.1. It is decided supra in
Issue Nos. 1 and 2 that, PW1, Defendants 1 and 2 got executed Exhibit B2 sale agreement in favour of DW5 and also delivered possession on the date of sale agreement itself. It is admitted from the evidences of DW1, DW2 and
DW5 that, DW5 had not obtained regular registered sale deed from Plaintiff,
Defendants 1 and 2 in terms of Exhibit B2 sale agreement.
[b] At this juncture, now the point that arises for discussion is, what is the effect of Exhibit B2 sale agreement and Exhibit A2 sale deed. It is well settled law that mere agreement of sale does not confer any title over the property. Doctrine of part performance embodied in Section 53-A of the
Transfer of Property Act has a limited application and it affords only a good defence to the person put in possession under an agreement in writing to protect his possession to the extent provided in the said Section 53-A of the
Transfer of Property Act; but, in any case, the agreement in writing to sell, coupled with parting of possession, would not confer any legal title on the purchaser. So, it is clear that Exhibit B2 agreement of sale does not confer any title to DW5.
[c] Further, it is also well settled law that, entries in revenue records do not confer title, nor conclusive of title and they are relevant only for purposes of paying land revenue and has nothing to do with ownership.
[d] Even though PW1, Defendants 1 and 2 got executed Exhibit B2 sale agreement in favour of DW5 in respect of plaint schedule property, title over the property was not transferred to DW5 and admittedly DW5 had not obtained regular registered sale deed from his vendors in terms of Exhibit
JCJ, YMGR -22 of 23- O.S.NO.69/2014
B2 agreement of sale and as such title vests with PW1 and his brothers i.e.,
Defendants 1 and 2, and it will not take away the rights of PW1 and his brothers. Further, simply that Defendant No.2 got executed Exhibit A2 sale deed in favour of Defendants 3 to 5 it will not affect the rights of PW1 and
Defendant No.1. So, PW1 and Defendant No.1 are having 1/3rd share in the suit schedule property. From the above discussion, it is clear that, the defendant No.2 is having right only to the extent of his share in the plaint schedule property and he is not having any right to execute any kind of document to the share extent of plaintiff and Defendant No.1. So, the sale deed executed by Defendant No.2 in favour of Defendants 3 to 5 is liable only to the extent of his share and the defendants 3 to 5 enters into the shoes of defendant No.2. Thus, the Defendants 3 to 5 are entitled for 1/3rd share in the plaint schedule property. Therefore, this court holds that, the plaintiff is entitled for partition of his 1/3rd share in the suit property.
Accordingly, this Issue is answered in favour of Plaintiff.
19. ISSUE NO.6: To what relief?
In the result, suit is preliminary decreed with costs, declaring that the plaintiff is entitled for 1/3rd share in the plaint schedule property.
The plaintiff is directed to pay deficit court fee. Office is directed to prepare the decree, only after payment of deficit court fee by Plaintiff.
Typed to my dictation by the Stenographer, corrected and pronounced by me in the open
Court, this the 27th day of May, 2020.
Sd/-S. Vasu Dev
JUNIOR CIVIL JUDGE,
YEMMIGANUR.
JCJ, YMGR -23 of 23- O.S.NO.69/2014
Appendix of Evidence
Witnesses Examined For
Plaintiff: Defendants:
PW-1: Kuruva Naganna @ Peddodu DW-1: K. Pedda Lakshmanna PW-2: Kuruva Ranganna DW-2: K. Venkatesh PW-3: T. Vishnuvardhan Reddy DW-3: K. Chinna Venkatramudu DW-4: K. Mallaiah DW-5: K. Sivanna
Exhibits Marked For
Plaintiff:
Exhibit A1: Registration copy of sale deed, dated: 26.07.1978 executed by Mulla Abdul Nabi Sab in favour of plaintiff and two others.
Exhibit A2: Registration copy of sale deed, dated: 07.04.2012 executed by Defendant No.2 in favour of Defendants 3 to 5.
Defendants:
Exhibit B1: Original registered sale deed, dated: 26.07.1978.
Exhibit B2: Un-registered sale agreement, dated: 27.06.1989 executed by plaintiff and defendants 1 and 2 in favour of elder brother of DW1.
Exhibit B3: Original pattadar pass book stands in the name of DW1.
Exhibit B4: Pattadar pass book in the name of DW1’s younger brother Venkateshwarlu.
Exhibit B5: 1-B namuna (ROR) stands in the name of brother of DW1 obtained from Mee-seva.
Exhibit B6: 1-B namuna (ROR) stands in the name of DW-1 obtained from Mee-seva.
Exhibit B7: Adangal/Pahani for fasli 1429 pertaining to Sy.No.22/B.
Sd/-
JCJ, YMGR.