Smt T.M.C.Vijaya kumar
I Addl.Senior Civil Judge-FTC
III Addl District Complex, Nandyal · Kurnool · Andhra Pradesh
Based on 4 recent ordersSmt T.M.C.Vijaya kumar, I Addl.Senior Civil Judge-FTC, is posted at III Addl District Complex, Nandyal, Kurnool, Andhra Pradesh, India. 4 court orders on record since 2010. 4 judgments with full text available. Primarily handles OS cases.
Featured Judgments
IN THE COURT OF THE I-ADDL. SENIOR CIVIL JUDGE,(FTC) NANDYAL.
Present: Sri T.M.C.Vijaya Kumar, II Addl. Senior Civil Judge, Nandyal. FAC I-Addl. Senior Civil Judge, Nandyal.
Tuesday, the seventeenth Day of March, 2015.
Original Suit No.211/2004
Between:-
Raghupolu Jayaramaiah…..Plaintiff
And
1) R.Naga Lakshmamma
2) R.Lakshmi Narsaiah
3) R.Lakshmi Narayana
4) R.Ramaiah
5) Gannoji Visalakshmamma
6) K.Venkata Ramanamma
7) K.Lakshmi Narsamma….. Defendants
-oo0oo-
This suit coming on 18.2.2015 before me for final hearing in the presence of Sri T.Siva Prasad & Sri A.Kailasapathi, Advocates for the
Plaintiff and of Sri P.V.Subba Reddy, Advocate for the 2nd Defendant, defendants No.1, 3 to 7 remained set exparte and after hearing on both sides, and after having stood over for consideration till today, this court delivered the following:-
J U D G M E N T
This is a suit filed for passing Preliminary decree for partition of the plaint schedule properties into forty eight equal shares, to allot nine such shares each to the Plaintiff and defendants 2 to 4 & 7 and one such share each to the defendants No.1, 5 and 6 and to deliver possession of the same to him, for passing final decree in terms of preliminary decree and for future mesne profits after due enquiry and for costs of the suit.
2.The brief averments of the plaint and amended plaint are that the plaintiff and defendants 2 to 7 are children of one Raghupolu
Bheemaiah and 1st defendant is his wife. All constituted as joint Hindu family and the said Bheemaiah being manager of the said family died on 27.6.1993. The plaint schedule properties are the ancestral and 2 joint family properties consisting of the plaintiff and defendants 2 to 7 and the said Bheemaiah. The plaintiff and defendants 2 to 7 and
Bheemaiah have contributed their labour in developing the schedule properties and the said Bheemaiah has purchased item No.1 to 4 from the nucleus of the joint family properties and thrown them into hatch- pot of the family and other items of the property was fallen to the share of Bheemaiah in a partition between himself and sons of Pullaiah who died in the year 1988. Therefore, all the schedule properties are treated as joint family properties of plaintiff and defendants 2 to 7.
The joint family consisting of plaintiff, defendants 2 to 7 and
Bheemaiah was having sufficient income from all the properties and also with their hard labour and exertions. The plaintiff and defendants 2 to 7 and the said Bheemaiah have been in joint possession and enjoyment of the schedule properties till he died on 27.6.1993 and thereafter the death of said Bheemaiah, all the schedule properties have been in joint possession and enjoyment of the plaintiff and defendants 1 to 7 as tenants in common as co-sharers. The plaintiff and defendants 2 to 4 and 7 are having 9/48th share each (amended as per orders in I.A.No.45/2010 dt.9.8.2010) and 1st defendant and defendants 5 & 6 are having 1/48th share in the plaint schedule properties. After the death of Bheemaiah, all the defendants jointly have sold the house bearing H.No.8/20 in Kurnool town and purchased the 16th item of the plaint schedule properties from the said profits and income from all the properties.
3.During the life time of said Bheemaiah he purchased the item
Nos.1 to 4 from out of the joint family nucleus and treated them as joint family properties and thrown them into common hatch pot of the family properties and all of them have been enjoying the above said properties along with other properties. The defendants 2 to 4 being employees having independent income, the plaintiff is not an employee and living by agricultural income only. Therefore, all the defendants mutually agreed to have the possession of the 1st item of the plaint schedule property wherein flour mill was constructed by their father and a hotel running in a hut for his livelihood of the plaintiff. The plaintiff has been in possession and enjoyment of the 3 flour mill in 1st item and leased out the hotel to the tenants and have been collecting rents from them.
4.Due to some differences arose with regard to the division of properties during month of June, 2003, and the plaintiff has been demanding for partition and separate possession of his undivided share in the plaint schedule properties. The plaintiff also issued legal notice dt.20.12.2003 and the 2nd defendant issued a reply notice to him. Since amicable partition was not effected out of court and the all defendants did not come forward for the same, the plaintiff has filed suit for partition and separate possession of his undivided share of 9/48th share in the plaint schedule properties. Hence, the suit.
5.The 2nd defendant filed his written statement and additional written statement denied the allegations made in the plaint and stating that after the death of Pullaiah who is brother of Bheemaiah, the sons of Pullaiah and Bheemaiah divided their properties in the year 1990 and in the said division, the properties standing in the name of 2nd defendant are not shown as the property belonging to joint family of
Bheemaiah and Pullaiah. If really, the property standing in the name of 2nd defendant belonged to the joint family, certainly they would have divided the properties standing in the name of defendant would have been allotted to the share of Bheemaiah. Since the property standing in the name of the 2nd defendant is the self acquired property of him, they have not divided the properties standing in the name of the 2nd defendant. Item Nos.1, 3, 10, 11,15 and Ac.0.26 cents in 12th item are all said to be the self acquired properties of 2nd defendant and above all properties purchased by him from out of his own income. The rest of the properties being ancestral and joint family properties were divided among the plaintiff and defendants. The suit for partial partition is not maintainable and the suit liable to be dismissed.
The house bearing D.No.8/20 of Kurnool town has been sold earlier to purchasing of item No.15 by the 2nd defendant.
6.Item No.15 i.e., house bearing D.No.3/166 has fallen to the share of Bheemaiah and which is now in possession and enjoyment of 4 the plaintiff as it is allotted to his share in the partition between himself and his brothers. The plaintiff has also demolished old house and constructed a new house in its place and enjoying the same.
House bearing D.No.3-167 has fallen to the share of Pullaiah, the brother of Bheemaiah in the partition between Bheemaiah and Pullaiah which took place in the year 1990. The said item is in possession and enjoyment of Venkata Ramanaiah and Venkata Lakshmaiah who are sons of late Pullaiah. Item No.16 is consisting of Ac.3.24 cents, out of the same Ac.0.50 cents has been fallen to the share of Venkata
Ramanaiah and Venkata Lakshmaiah who are sons of Pullaiah in the partition that took place in the year 1990 and rest of Ac.2.75 cents has given to Seethamma with absolute rights. The said Seethamma died intestate. The said Seethamma was the sister fo Bheemaiah and
Pullaiah. The said Ac.2.75 cents now is in possession of Jayaramaiah.
The said item of Ac.2.75 cents has to be divided among all the legal heirs as per law. The item No.17 which is consisting of A.0.02 cents, in partition Ac.0.01 cent each has been allotted to Bheemaiah and
Pullaiah. The Bheemaiah’s 1 cent is in possession of 4th defendant.
Therefore, by inclusion of items 15 to 17 the plaintiff wanted to complicate the suit and infact wanted to confuse the court to prolong the matter. Therefore, the 2nd defendant prayed to dismiss the suit with costs.
7.The defendants No.1, 3 to 7 remained set exparte.
8.Based on the rival pleadings both in the plaint and written statement, the following issues were settled for trial:-
Issues:-
1) Whether the plaintiff is entitled for partition and separate possession of 9/48th share in the plaint schedule property?
2) Whether the plaintiff is entitled for mesne profits?
3) Whether the item No.1, 10 and 11 and Ac.0.26 cents in 12th item and 13 & 15 are self acquired properties of D2?
4) Whether there was already partition effected among the parties as pleaded in the written statement?
5) To what relief?
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Additional issue dt.25.8.2010 :
Whether the shares mentioned in the amended plaint are correct or if not what are the correct shares?
9.The counsel for 2nd defendant in O.S.No.921/2003 filed a petition in I.A.No.111/2008 prays to order to dispose the suit in
O.S.No.211/2004 simultaneously along with the suit in
O.S.No.921/2003.
10.On behalf of the Plaintiff, he himself is examined as PW.1 and in support of his claim PWs.2 to 6 were examined and marked Exs.A1 to
A51. Ex.A1 is the death certificate of R.Bheemaiah dt.27.6.1993,
Ex.A2 is the registration copy of sale deed dt.15.9.1976, Ex.A3 is the registration copy of sale deed dt.26.9.1980, Ex.A4 is the registered sale deed dt.1.9.1982, Ex.A5 is the registration copy of sale deed dt.1.8.1988, Ex.A6 is the office copy of notice dt.20.12.2003, Ex.A7 is reply notice dt.9.1.2004, Exs.A8 & A9 are the postal acknowledgments, Ex.A10 is the invitation card for the marriage of D2,
Ex.A11 is the certificate issued by Village Revenue Officer on 27.6.2007, Exs.A12 to A25 are the electricity bills, Ex.A26 is the receipt dt.15.3.1993, Exs.A27 to A31 are the land revenue receipts,
Ex.A32 is the water tap receipt, Ex.A33 is the tap fee receipt, Exs.A34 to A40 are the house tax receipts, Exs.A41 to A48 are the receipts pay for factory licence, Ex.A49 is the proceedings of DM&HO dt.1.5.1976,
Ex.A50 is the plan showing the proposed installation of 10 HP motor and Ex.A51 is the letter addressed by the Inspector of Factories to the
Sarpanch, Gadivemula on 6.8.1976.
11.On behalf of the 2nd Defendant, he himself is examined as DW.1 and got marked Exs.B1 to B9. Ex.B1 is the letter addressed by
Electricity-revenue office, Nandyal dt.28.9.2004, Ex.B2 is the proceedings in Rc.No.695/MPHEO/05 dt.20.5.2005, Ex.B3 is the sale deed dt.28.1.1995, Ex.B4 is the registration copy of sale deed dt.4.5.1995, Ex.B5 is the registered sale deed dt.26.9.1980, Ex.B6 is the agreement of sale dt.23.10.1988, Ex.B7 is the agreement of sale dt.20.7.1979, Ex.B8 is the registered sale deed dt.20.6.2005 and
Ex.B9 is the unregistered partition deed dt.15.6.1990.
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12.Heard arguments on both sides. Both the counsel filed their written arguments.
13.Issues No.1 & 3 and Additional issue:-
1) Whether the plaintiff is entitled for partition and separate possession of 9/48th share in the plaint schedule property?
3) Whether the item No.1, 10 and 11 and Ac.0.26 cents in 12th item and 13 & 15 are self acquired properties of D2?
Additional issue :
Whether the shares mentioned in the amended plaint are correct or if not what are the correct shares?
Since these issues are interlinked, they are answered together.
The contention of the plaintiff/PW.1 is that the plaintiff and defendants 2 to 7 and the said Bheemaiah have been in joint possession and enjoyment of the schedule properties till he died on 27.6.1993 and thereafter the death of said Bheemaiah, all the schedule properties have been in joint possession and enjoyment of the plaintiff and defendants 1 to 7 as tenants in common as co-sharers. The plaintiff and defendants 2 to 4 and 7 are having 9/48th share each (amended as per orders in I.A.No.45/2010 dt.9.8.2010) and 1st defendant and defendants 5 & 6 are having 1/48th share in the plaint schedule properties. After the death of Bheemaiah, all the defendants jointly have sold the house bearing H.No.8/20 in Kurnool town and purchased the 16th item of the plaint schedule properties from the said profits and income from all the properties. During the life time of said Bheemaiah he purchased the item Nos.1 to 4 from out of the joint family nucleus and treated them as joint family properties and thrown them into common hotch pot of the family properties and all of them have been enjoying the above said properties along with other properties. The defendants 2 to 4 being employees having independent income, the plaintiff is not an employee and living by agricultural income only.
Therefore, all the defendants mutually agreed to have the possession of the 1st item of the plaint schedule property wherein flour mill was constructed by their father and a hotel running in a hut for his livelihood of the plaintiff. The plaintiff has been in possession and enjoyment of the flour mill in 1st item and leased out the hotel to the 7 tenants and have been collecting rents from them. Due to some differences arose with regard to the division of properties during month of June, 2003, and the plaintiff has been demanding for partition and separate possession of his undivided share in the plaint schedule properties. The plaintiff also issued legal notice dt.20.12.2003 and the 2nd defendant issued a reply notice to him.
Since amicable partition was not effected out of court and the all defendants did not come forward for the same, the plaintiff has filed suit for partition and separate possession of his undivided share of 9/48th share in the plaint schedule properties. Hence, the suit.
14.The 2nd defendant filed his written statement and additional written statement denied the allegations made in the plaint and stating that after the death of Pullaiah who is brother of Bheemaiah, the sons of Pullaiah and Bheemaiah divided their properties in the year 1990 and in the said division, the properties standing in the name of 2nd defendant are not shown as the property belonging to joint family of
Bheemaiah and Pullaiah. If really, the property standing in the name of 2nd defendant belonged to the joint family, certainly they would have divided the properties standing in the name of defendant would have been allotted to the share of Bheemaiah. Since the property standing in the name of the 2nd defendant is the self acquired property of him, they have not divided the properties standing in the name of the 2nd defendant. Item Nos.1, 3, 10, 11,15 and Ac.0.26 cents in 12th item are all said to be the self acquired properties of 2nd defendant and above all properties purchased by him from out of his own income. The rest of the properties being ancestral and joint family properties were divided among the plaintiff and defendants. The suit for partial partition is not maintainable and the suit liable to be dismissed.
The house bearing D.No.8/20 of Kurnool town has been sold earlier to purchasing of item No.15 by the 2nd defendant. Item No.15 i.e., house bearing D.No.3/166 has fallen to the share of Bheemaiah and which is now in possession and enjoyment of the plaintiff as it is allotted to his share in the partition between himself and his brothers. The plaintiff has also demolished old house and constructed a new house in its place and enjoying the same. House bearing D.No.3-167 has fallen to 8 the share of Pullaiah, the brother of Bheemaiah in the partition between Bheemaiah and Pullaiah which took place in the year 1990.
The said item is in possession and enjoyment of Venkata Ramanaiah and Venkata Lakshmaiah who are sons of late Pullaiah. Item No.16 is consisting of Ac.3.24 cents, out of the same Ac.0.50 cents has been fallen to the share of Venkata Ramanaiah and Venkata Lakshmaiah who are sons of Pullaiah in the partition that took place in the year 1990 and rest of Ac.2.75 cents has given to Seethamma with absolute rights. The said Seethamma died intestate. The said Seethamma was the sister fo Bheemaiah and Pullaiah. The said Ac.2.75 cents now is in possession of Jayaramaiah. The said item of Ac.2.75 cents has to be divided among all the legal heirs as per law. The item No.17 which is consisting of A.0.02 cents, in partition Ac.0.01 cent each has been allotted to Bheemaiah and Pullaiah. The Bheemaiah’s 1 cent is in possession of 4th defendant. Therefore, by inclusion of items 15 to 17 the plaintiff wanted to complicate the suit and infact wanted to confuse the court to prolong the matter. Therefore, the 2nd defendant prayed to dismiss the suit with costs.
15.On perusal of plaint it is learnt that the plaintiff’s father
Bheemaiah had purchased the 1st item under registered sale deed dt.15.9.1976 in the name of 2nd defendant from one P.Kondaiah, wherein he construct a flour mill with two rooms, out of the income of the joint family properties, the 2nd item under registered sale deed dt.26.9.1980 in the name of 2nd defendant from one Desam Sanjeeva
Reddy for valuable consideration of Rs.200/-, the 3rd item under registered sale deed dt.1.9.1982 in the name of plaintiff and defendants 2 to 4 herein and also his brother Pullaiah from one
Yosanna for consideration of Rs.1,000/-, the 4th item under registered sale deed dt.1.8.1988 in the name of Rajasekhar and Sreedhar, sons of 2nd defendant from one B.Shyamalamma for consideration of
Rs.5,000/- and all the above properties were purchased by said
Bheemaiah out of the joint family nucleus and treated them as joint family properties and thrown them into common hotchpot of the family properties and all of them have been jointly enjoying the above said properties along with other properties.
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16.The defendants 2 to 4 being employees having independent income, the plaintiff is not an employee and living by agricultural income only. Therefore all the defendants mutually agreed to have the possession of the 1st item of the plaint shedule property wherein flour mill was consrtuced by their father and a hotel running in a hut for his livelihood of the plaintiff. The plaintiff has been in possession and enjoyment of the flour mill in 1st item and leased out the hotel to the tenants and have been collecting rents from them. Therefore, the contention of the plaintiff is that the plaint schedule properties are in joint possession and enjoyment of the plaintiff and defendants and having undivided shares. Admittedly, all the above properties were purchased by the said Bheemaiah during his life time and there was sufficient nucleus from the other properties to purchase said properties by him.
17. On perusal it is learnt that as contended by the plaintiff that in the 1st item of plaint schedule property, a flour mill was constructed by said Bheemaiah after purchasing the said item under registered sale deed dt.15.9.1976 and the said item has been in joint possession and enjoyment of the plaintiff and defendants. The plaintiff has filed
Exs.A12 to A25 electricity bills in the name of 3rd defendant, Ex.A26 receipt of electricity bill, Exs.A27 to A31 land revenue receipts in the name of plaintiff, Exs.A32 & A33 water tax receipt in the name of plaintiff, Exs.A34 to A40 house tax receipts in the name of plaintiff,
Exs.A41 to A48 factory licence fee receipts in the name of plaintiff,
Ex.A49 proceedings of DM&HO dt.4.5.1976 in respect of flour mill in the name of 3rd defendant, Ex.A50 plan showing the proposed installation of flour mill in the name of 3rd defendant and Ex.A51 letter addressed by the Inspector of factories to Sarpanch, Gadivemula in the name of 3rd defendant, which goes to show that the said flour mill is in joint possession and enjoyment of the plaintiff and defendants.
Therefore, the 1st item of the plaint schedule property wherein flour mill is established has been in joint possession and enjoyment of the plaintiff and 3rd defendant and the 2nd defendant never in exclusive possession and enjoyment of the same eversince from the date of registered sale deed dt.15.9.1976 (Ex.A2).
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18.On perusal, it is learnt that the 2nd defendant herein has filed suit in O.S.No.921/2003 on the file of this court for declaration of title and possession of the above said items from the plaintiff herein, as admittedly, the plaintiff and 3rd defendant have been in possession and enjoyment of the same. The same was admitted by the 2nd defendant herein clearly admitted during cross-examination in O.S.No.921/2003.
Therefore, the item No.1 of the plaint schedule property has been in joint possession and enjoyment of the plaintiff and 3rd defendant.
19.The 2nd defendant himself is examined as DW.1 and got marked
Ex.B1 to B9. Ex.B1 is the letter addressed by Electricity-revenue office,
Nandyaldt.28.9.2004,Ex.B2istheproceedingsin
Rc.No.695/MPHEO/05 dt.20.5.2005, Ex.B3 is the sale deed
dt.28.1.1995, Ex.B4 is the registration copy of sale deed dt.4.5.1995,
Ex.B5 is the registered sale deed dt.26.9.1980, Ex.B6 is the agreement of sale dt.23.10.1988, Ex.B7 is the agreement of sale dt.20.7.1979, Ex.B8 is the registered sale deed dt.20.6.2005 and
Ex.B9 is the unregistered partition deed dt.15.6.1990. As seen from the above documents, it is learnt that the 2nd defendant has not filed any record to show that the item Nos.1, 2, 10 & 11 and Ac.0.26 cents in item No.12 and item No.15 are his exlusive properties. If really, the said properties are his self acquired properties, he ought to have filed any records such as No.3 adangal, pattadar passbooks, land revenue receipts to prove his exclusive possession and enjoyment of the landed proeprties. Moreover, the 2nd defendant has not made any counter claim or separate suit for declaration in respect of the above said properties except item No.1 which is subject matter in
O.S.No.921/2003 on the file of this court.
20.The contention of the 2nddefendant that the item
Nos.1,2,3,10,11, part of item No.12, 14 are not shown in Ex.B9- partition document between Bheemaiah and sons of Pullaiah and the said properties are his self acquired properties. Per contra, the plaintiff contended that the above said properties were purchased by the said
Bheemaiah in the names of plaintiff and defendants from out of the nucleus of the joint family properties and the said properties are joint family properties of the said Bheemaiah and his sons and therefore the 11 said properties are no way concerned to the sons of the said Pullaiah, brother of Bheemaiah, so the above said items were not included in
Ex.B9. On perusal, it is learnt that the item Nos.1,2,3,10,11,part of item No.12 and item No.14 are exclsuive properties of Bheemaiah and his sons, so they are not included in Ex.B9.
21.The counsel for plaintiff also relied on a decision reported in 2008(3) ALD 657 (DB) in a case between Kasaram Jayamma and another vs. Jajala Lakshmamma and others wherein it was held that “the burden of proving the property to be joint family property always lies on the person who so asserts. However, once he proves that the family possessed sufficient nucleus with the aid of which the suit properties could be acquired, then a presumption has to be drawn that the properties are joint and consequently, the burden of proof shifts to the person claiming them to be self-acquired.”
22.Further, he relied on a decision reported in 2006(6) ALD 103 in a case between Gunturu Venkata Rao vs. Gunturu Venkateswarlu (died)by LRs and others, wherein it was held that “ Mere joint residene does not give rise to presumption that properties are joint family properties and merely because all the members of the joint family reside separately it cannot also be presumed that the properties are not joint family properties. If there is any nucleus of the joint family properties the burden lies on the plaintiff to prove that the said properties are not joint family properties but they are self acqauired properties.”
23.Further, the counsel for plaintiff also relied on another decision reported in 2005(4) ALD 342 in a case between Pulimi Bapa Reddy vs.
Pulimi Dasaradharama Reddy (died) by LRs, wherein it was held that “where a co-parcener asserting the jointness of the proeprty, proves to the satisfaction the court, that there existed sufficient nucleus for the joint family to acquire properties, the burden shifts to the one, who pleads that any item of properties, is his self-acquisition.”
24.Per contra, the counsel for 2nd defendant relied on a decision reported in (i) AIR 1945 Calcutta 458 (DB) in a case between Jithendra
Nath Sur Vs. Amarendra Nath Sur, wherein it was held that “where the 12 sale certificate stands in the name of “A”, the court is bound to presume that he is the real owner of the property and the burden lies upon the party alleging the contra to rebut the presumption and show that the apparent state of affairs is not the real state”.
(ii) Another decision reported in AIR 1956 AP 255 in a case between Mallapudi Narasimha Murthy vs. Mullapudu Nagabhushanam, wherein it was held that “unless it is shown that there was a substantial nucleus of joint family property from the income of which, after meeting the family expenses, the property subsequently acquired could have been purchased, it could not be assumed that the subsequent acquisition was joint family property. If property is acquired by a member of a joint Hindu family the onus of proving that the acquisition is for the benefit of the family, is upon person setting up the plea.”
(iii) Another decision reported in AIR 1958 AP 147 (DB) in a case between Yendapalli Venkata Raju (died) & another vs. Yendapalli
Yedukondalu @ Venkateswarlu & others, wherein it was held that “if it is established that the family owned joint property which might have reasonably formed the nucleus wherefrom the property in dispute could have been acquried, there is a shifting of the burden to the parties setting up exclusive title to the properties on the ground of acquisition as a result of his own exertions and without any help from the joint family property.”
25.On perusal of citations submitted by the counsel for 2nd defendant, it is learnt that since the properties could not be proved that items 1,2,3,10,11,part of item No.12 and item No.14 of plaint schedule properties are self acquired properties of 2nd defendant. As such the citations submitted by him do not suit to the facts and circumstances of the case.
26.In the light of the above discussion, facts and circumstances of the case and citations submitted by the plaintiff, the plaintiff herein proved that the item No.1 of the plaint schedule property is in joint possession and enjoyment of the plaintiff and 3rd defendant and the same is not self acquired property of 2nd defendant. On the other 13 hand, the 2nd defendant could not substantiate his contention that the plaint schedule properties were purchased exclusively by his own earnings without joint family nucleus. Therefore, the plaintiff clearly established that the plaint schedule properties are joint family properties and they are in joint possession and enjoyment of the plaintiff and defendants. The 2nd defendant has totally failed to rebut the evidence of the plaintiff in any manner and he has not filed any documentary evidence to show his exclusive possession of the said properties. So, the plaintiff is entitled to 9/48th share in all the plaint schedule properties and the defendants 2 to 4 & 7 are entitled to 9/48th share each and the defendants No.1,5 & 6 are entitled to 1/48th share each in the plaint schedule properties. Accordingly, the issues
No.1 & 3 and additional issue are answered in favour of the plaintiff.
27.ISSUE No.4 : Whether there was already partition effected among the parties as pleaded in the written statement?
In his written statement the 2nd defendant contended that item
No.2 of the plaint schedule property was purchased in the names of D2 to D4, plaintiff and Venkata Ramanaiah and Venkata Lakshmaiah under registered sale deed dt.1.9.1982 (Ex.A4) and the said property was divided into six shares and each has got Ac.0.33 cents, item No.5 was allotted to the share of Pullaiah and items No.6 to 9 are ancestral properties of Bheemaiah and the said items were equally divided and were allotted to the plaintiff, D3 and D4, item No.14 being ancestral property was allotted to the plaintiff, 3rd defendant and 4th defendant, the rest of items are self acquired properties of 2nd defendant. Further
DW.1 contended that there was already partition of the above said properties between the 3rd defendant and 4th defendant and the plaintiff. But it is an oral assertion of the partition in the year 1991 and no documentary evidence filed by him to prove the alleged partition of the above properties between the plaintiff, 3rd defendant and 4th defendant. The 2nd defendant did not state about the allotment of any properties or shares to 1st defendant, 5th defendant and 7th defendant and he did not state when and how the alleged partition was took place between the plaintiff, 3rd defendant and 4th defendant. The burden is heavy on the 2nd defendant to show that there was already partition effected between the plaintiff and defendants with cogent 14 evidence. But in the present case, the 2nd defendant did not file any piece of evidence to show the partition was already effected and there was a prior partition between the plaintiff and the defendants. DW.1 clearly admitted during his cross-examination that the flour mill was constructed in the year 1976 and no record with him to show that the flour mill was constructed by him and the said flour mill is in possession of the plaintiff and he has been paying the taxes etc.,.
Further he admitted that his father Bheemaiah has been managing the properties after partition and he has been doing agriculture and also goldsmith and that the joint family is having Ac.6.00 cents of land after partition between him and his brother’s sons. Except the 2nd defendant as DW.1 he has not examined any witnesses to show that the properties alleged to be in his name are in his possession and enjoyment right from the date of purchase of the respective properties as claimed by him.
28.The counsel for plaintiff relied on a decision reported in 2013(5)
ALD 683 in a case between Reddi Radhakrishna vs. Reddy Lakshmi and others, wherein it was held that “unless there is actual partition by metes and bounds, it cannot be said that there is actual partition among the joint family members. Merely because the parties are living separately or doing separate business or even purchased properties in their individual name, it cannot be said that there is partition between them.”
29.The counsel for plaintiff also relied on another decision reported in 2012(2) ALD NOC-9 in a case between M.Nagarani Vs.
K.Munirathnam and others, wherein it was held that “party pleading prior partition is under obligation to prove it to the satisfaction of the court, even if there does not exists any registered deed of partition, it is permissible in law to establish it by proving various events that have taken place as a consequence of partition”. In the present case though the 2nd defendant has pleaded in his written statement that there was already partition between the plaintiff and the defendants. But he has not filed any record or proof or establish any events of partition among the plaintiffs and defendants. Merely 2nd defendant 15 has asserted the prior partition without any proof. Hence, prior partition cannot be believed under any circumstances and the 2nd defendant has not discharged his onus on him.
30. Admittedly, there was no written partition between the plaintiff and defendants in respect of the plaint schedule properties and the 2nd defendant has totally failed to establish that there was a partition between the plaintiff and the defendants. Therefore, it is held that there was no partition of the schedule properties between the plaintiff and defendants as pleaded by the 2nd defendant in his written statement and hence the plaintiff is entitled to a share in all the plaint schedule properties. Accordingly, the issue is answered in favour of the plaintiff.
31. ISSUE No.2 : Whether the plaintiff is entitled for mesne profits?
In view of the discussion made in issues No.1, 3 & 4, it is held that there was no partition of the plaint schedule properties between the plaintiff and defendants and the plaint schedule properties are joint family properties and they are in joint possession and enjoyment of the plaintiff and defendants, there is no question of ascertaining mesne profits. Hence, this issue is answered.
32. ISSUE No.5 : To what relief?
In the result, the suit is partly decreed without costs. A
Preliminary decree is passed for partition of the plaint schedule properties by division into 48 equal shares and to allot 9 such shares to the plaintiff i.e., 9/48th share to the plaintiff, 9/48th share each to the defendants 2 to 4 & 7 and one such share to the defendants
No.1,5 & 6. The defendants are directed to divide the plaint schedule properties and to allot 9 such shares to the plaintiff and deliver separate possession of the same to the plaintiff within three months.
If, the defendants fail to divide the plaint schedule properties, as stated supra, the Plaintiff is entitled to file application for division and for allotment of the same through process of law, by filing final decree 16 petition. The suit is dismissed with regard to the relief of mesne profits. As both parties are close relatives, that there shall be no costs.
Typed to my dictation, corrected, signed and pronounced by me in the open court, this the 17th day of March, 2015.
II Addl. Senior Civil Judge, Nandyal.
Appendix of Evidence (Witnesses examined)
For the Plaintiff:- For the Defendants:-
P.W.1: Raghupolu JayaramaiahDW.1 : R.Laxmi Narasaiah
P.W.2: Desam Sanjeeva Reddy
P.W.3: Chatakonda Subbarayudu
P.W.4: Sangamsetty Nagappa
P.W.5: Dasari Giddaiah
P.W.6: Nagalaxmamma
Exhibits marked
For the Plaintiff:-
Ex.A1 is the death certificate of R.Bheemaiah dt.27.6.1993.
Ex.A2 is the registration copy of sale deed dt.15.9.1976.
Ex.A3 is the registration copy of sale deed dt.26.9.1980.
Ex.A4 is the registered sale deed dt.1.9.1982.
Ex.A5 is the registration copy of sale deed dt.1.8.1988.
Ex.A6 is the office copy of notice dt.20.12.2003.
Ex.A7 is reply notice dt.9.1.2004.
Exs.A8 & A9 are the postal acknowledgments.
Ex.A10 is the invitation card for the marriage of D2.
Ex.A11 is the certificate issued by Village Revenue Officer on 27.6.2007.
Exs.A12 to A25 are the electricity bills.
Ex.A26 is the receipt dt.15.3.1993.
Exs.A27 to A31 are the land revenue receipts.
Ex.A32 is the water tap receipt.
Ex.A33 is the tap fee receipt.
Exs.A34 to A40 are the house tax receipts.
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Exs.A41 to A48 are the receipts pay for factory licence.
Ex.A49 is the proceedings of DM&HO dt.1.5.1976.
Ex.A50 is the plan showing the proposed installation of 10 HP motor.
Ex.A51 is the letter addressed by the Inspector of Factories to the Sarpanch, Gadivemula on 6.8.1976.
For the Defendants:-
Ex.B1 is the letter addressed by Electricity-revenue office, Nandyal dt.28.9.2004.
Ex.B2 is the proceedings in Rc.No.695/MPHEO/05 dt.20.5.2005.
Ex.B3 is the sale deed dt.28.1.1995.
Ex.B4 is the registration copy of sale deed dt.4.5.1995.
Ex.B5 is the registered sale deed dt.26.9.1980.
Ex.B6 is the agreement of sale dt.23.10.1988.
Ex.B7 is the agreement of sale dt.20.7.1979.
Ex.B8 is the registered sale deed dt.20.6.2005.
Ex.B9 is the unregistered partition deed dt.15.6.1990.
II A.S.C.J, Ndl.
IN THE COURT OF THE I-ADDL. SENIOR CIVIL JUDGE,(FTC) NANDYAL.
Present: Sri T.M.C.Vijaya Kumar, II Addl. Senior Civil Judge, Nandyal. FAC I-Addl. Senior Civil Judge, Nandyal.
Tuesday, the seventeenth Day of March, 2015.
Original Suit No.211/2004
Between:-
Raghupolu Jayaramaiah, son of Bheemaiah, aged about 48 years, Hindu, agriculturist, r/o Gadivemula village and
Mandal, Kurnool district. ….. Plaintiff
And
1) R.Naga Lakshmamma, w/o Bheemaiah, aged about 70 years, Hindu, agriculturist, r/o Gadivemula village and mandal, Kurnool district.
2) R.Lakshmi Narsaiah, s/o Bheemaiah, aged about 54 years, Hindu, Revenue Inspector, RDO office, Kurnool, r/o H.No.40/354-30, Nandyal Gate, Kurnool district.
3) R.Lakshmi Narayana, s/o Bheemaiah, aged about 50 years, Hindu, Jr.Assistant, DM office, RTC Depot, Rajampeta, Kadapa district.
4) R.Ramaiah, s/o Bheemaiah, aged about 44 years, Hindu, agriculturist, r/o Gadivemula village and mandal.
5) Gannoji Visalakshmamma, w/o Satyanarayana, aged about 46 years, Hindu, House wife, r/o Main Bazaar, Atmakur road, Nandikotkur town, Kurnool district.
6) K.Venkata Ramanamma, w/o Venkatachari, aged about 42 years, Hindu, Gold Smith, Lakshminagar, hamlet of Bannuru village, Thummaluru post, Atmakur mandal, Kurnool district.
7) K.Lakshmi Narsamma, w/o Sudharshana Achari, aged about 40 years, Hindu, Gold Smith, Brahmamgari veedhi, Vanaparthi, Mahaboobnagar dist.
….. Defendants
-oo0oo-
This is a suit filed for passing Preliminary decree for partition of the plaint schedule properties into forty eight equal shares, to allot nine such shares each to the Plaintiff and defendants 2 to 4 & 7 and one such share each to the defendants No.1, 5 and 6 and to deliver possession of the same to him, for passing final decree in terms of preliminary decree and for future mesne profits after due enquiry and for costs of the suit.
Plaint presented on 6.8.2004 and filed on 23.12.2004. Total market value of the plaint schedule property is Rs.19,12,851/- and the plaintiff 9/48th share is Rs.2,92,128/- and value for the purpose of
Court fee and jurisdiction is 3/4th of the plaintiff’s share is at
Rs.2,19,096/- and C.F of Rs.200/- is paid under Sec.34 (2) of A.P.C.F & S.V. Act, 1956.
2
The cause of action for this suit arose during the month of June, 2003 when the Plaintiff demanded the defendants for partition and the defendants failed to come forward for amicable partition and separate possession of plaint schedule properties at Gadivemula village and
Mandal, within the jurisdiction of this court.
This suit coming on 18.2.2015 before me for final hearing in the presence of Sri T.Siva Prasad & Sri A.Kailasapathi, Advocates for the
Plaintiff and of Sri P.V.Subba Reddy, Advocate for the 2nd Defendant, defendants No.1, 3 to 7 remained set exparte and after hearing on both sides, and after having stood over for consideration till today, this court doth order and passed the preliminary decree as follows:-
i)that the plaint schedule properties are to be divided into 48 equal shares and to allot 9 such shares to the plaintiff i.e., 9/48th share to the plaintiff, 9/48th share each to the defendants 2 to 4 & 7 and one such share to the defendants No.1,5 & 6.
ii)that the defendants be and are hereby directed to divide the plaint schedule properties and to allot separate possession of nine such shares of the Plaintiff within three months.
iii)if, the defendants fail to divide the plaint schedule properties, as stated supra, the Plaintiff is entitled to file application for division and for allotment of the same through process of law, by filing final decree petition.
iv)that the suit be and the same is hereby dismissed with regard to the relief of mesne profits.
v) that both parties are close relatives, that there shall be no costs.
Given under my hand and seal of the court, this the 17th day of March, 2015.
II Addl. Senior Civil Judge, Nandyal. FAC I-Addl.Senior Civil Judge, Nandyal.
3
Memo of Costs
For the PlaintiffFor Defendant No.2
Stamp on Vakalat Rs. 2=00 Rs. 2=00 Stamp on Plaint Rs. 200=00 -- Stamp on Process Rs. 130=00 -- Advocate’s Fee Rs. 9000=00 Rs.15000=00 (as claimed) Jr. Advocate’s Fee Rs. 3000=00 Rs. 5000=00 (as claimed) Writing Charges Rs. -- Rs. - Typing Charges Rs. -- Rs. 50=00
---------------- ----------------
Total : Rs.12332=00 Rs.20052=00
---------------- --------------
II A.S.C.J, Ndl. FAC I-ASCJ,Ndl. S c h e d u l e
Properties situated in Kurnool Dist. Orvakal Sub.District, within the village limits of Gadivemula and having the following particulars.
1) Survey No.307/2 Extent 0.06 ¼ cents purchased under regd.sale deed dt.15.9.1976.
Within the above extent and measurements the following constructions have been made by the Bheemaiah during his life time.
Rooms bearing No.1/32A and 1/32B and also the flour mill house bearing No.1/33 which is temporarily in possession of the plaintiff.
Common boundaries:
East : Site of Rama Govindu;
West: Road lead to APSRTC bus stand.
North: Nandyal-Nandikotkur road;
South: Site of Kondaiah now sold to APSRTC.
Market value : Rs.2,67,100-00
2) Survey No.184A Full Ac.0.49 cents Market value: Rs. 3528-00 184 B2 Full Ac.1-50 cents Market value : Rs.10,800-00
Akuthota Chenu
Common boundaries:
East : Land of Khasim Saheb;
West: Land of Sari Dasanna.
North: Land of Yosanna;
South: Land of Sunkamma.
4
3) Survey No.340 Ac.0.26 cents Kadi Chenu
Boundaries:
East : Rastha;
West: Rastha.
North: Land of Vanala Pullanna;
South: Land of Sanjeeva Reddy.
Market value Rs.10,816-00
4) Survey No.261 Ac.0.67 cents Market value Rs.23,182-00
5) Survey No.247 Ac.0.31 cents Market value Rs.10,199-00
Common Boundaries: Called as Yerukalavani Chenu
East : B.C.Colony;
West: Vadla Vasu and others site.
North: Land of Sanjeeva Reddy;
South: B.C.Colony.
6) Survey No.277/2 Ac.0.08 cents Market value : Rs.3,328-00
Boundaries:
East : Rastha;
West: Mulla Karimiah site.
North: Rastha;
South: Rastha.
7) 21 Ac.1.00 cents Market value : Rs.17,300-00
Called as Regati Chenu Boundaries:
East : Land of Bheetu Moosa Naganna;
West: Land of Mangali Rama Krishnudu.
North: Land of Dasaratha Ramaiah;
South: Land of Narahari Pullaiah.
8) 74 Ac.0.95 cents Market value : Rs.16,435-00
Called as Yedurugadda Chenu Boundaries:
East : Land of B.Rosi Reddy;
West: Land of B.Sunkesula.
North: Vagu;
South: Land of Thirupal Reddy.
9) 353/1 Ac.0.05 cents Market value : Rs.700-00
Seetharamalakshmi Nagar Called as Yerukalavani chenu 5
Boundaries:
East : B.C.Colony;
West: Vadla Vasu and others site.
North: Land of Sanjeeva Reddy;
South: B.C.Colony.
10) 186 Ac.8.06 cents Market value : Rs.58,032-00
Called as Moshanna Chenu
11) 187 Ac.0.70 cents Market value : Rs.5,040-00
Called as Gaddalu
12) 184B1 Ac.0.80 cents Market value : Rs.5,760-00
Called as Karanamaiah Gaddalu Common Boundaries:
East : Korrapolu road;
West: Land of Kuruva Rama Subbadu.
North: Ramulamma vanam and vagu;
South: Desam Rama Chandra Reddy.
13) Lands situated in Korrapolu village, Nandikotkur taluk.
a) S.No.263 Ac.0.50 cents Thota Chenu Market value Rs.14,500-00
East : Land of Yerikala Gurrappa;
West : Land of Kamma Sankar Reddy;
North: Land of Telugu Venkataswamy;
South: Rastha;
b) S.No.269 Ac.2.28 cents Tella Chenu Market value Rs.27,360-00
East : Land of Komati Subbamma;
West : Land of M.Nanne Saheb;
North: Land of Komati Pullaiah;
South: Rastha;
c) S.No.293 Ac.0.55 cents Tella Chenu Market value Rs.6,600-00
East : Devuni Manyam;
West : Land of M.Nanne Saheb;
North: Rastha;
South: Land of Vangala Seshi Reddy;
d) S.No.323 Ac.1.33 cents Sankallachenu Market value Rs.9,310-00
East : Land of R.Dasaratha Ramaiah;
West : Land of P.Nagisetty;
North: Land of Chakali Narayana;
South: Land of S.Chinna Mohammed (Poola); 6
e) S.No.255 Ac.0.51 cents Thota Chenu Market value Rs.5,100-00
East : Land of Sankar Reddy;
West : Land of Sankar Reddy;
North: Rastha;
South: Land of Boya Bala Chenna;
14. House property situated in Kurnool town and within Municipal corporation of Nandyal town situated in Nandyal Gate, Gandhi Nagar,
Kurnool.
House bearing No.40/354-30, Nandyal Gate having one-storied building and main door way towards North
Measurements:
East-west : 70 feet; North-South : 20 feet;
Boundaries:
East : Sandu Rastha;West : House of Rani and open site;
North: House of Rani;South: House of Kumar
Market value : Rs.10,49,501/-.
15. House properties situated in Kurnool District, Nandyal Sub-
Regn.District within the village limits of Gadivemula and having the following particulars:
a) House bearing No.3/166
Measurements: Site area : 224 sq.yards;
Plinth area : 2016 sq.feet.
S.R.O. value : Rs.2,43,500-00
b) House bearing No.3/167
Measurements: Site area : 48 sq.yards;
Plinth area : 432 sq.feet.
S.R.O. value : Rs.52,500-00
Common boundaries:
East : House of Saraswathamma; West : House of Chinna Basha;
North: Road;South: Sandhu Rastha;
16. Landed property situated in Kurnool District, Nandyal Sub-
Regn.District within the village limits of Gadivemula and having the following particulars:
Sy.No.469Ex:Ac.3-24 cents.
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Boundaries:
East : Land of Manikindi Chinna Macherla
West: Land of M.Abdulla
North: Land of V.Bali Reddy, now V.Rami Reddy
South: Land of Manikindi Pedda Macherla and hills.
S.R.O. Value : Rs.95,500-00
17. Open site situated in Kurnool District, Nandyal Sub-Regn.District within the village limits of Gadivemula and having the following particulars:
Sy.No.282/A Ex:Ac.0.02 cents.
Boundaries:
East : Rastha;
West : Pullaiah Doddi;
North : Desam Tippa Reddy, Sanjeeva Reddy’s house;
South : Pullaiah house.
S.R.O. value : Rs.21,500-00
Total market value of items 1 to 17 is Rs.19,12,851-00
II A.S.C.J, Ndl. FAC I-ASCJ,Ndl.
IN THE COURT OF THE I ADDL. SENIOR CIVIL JUDGE, NANDYAL.
(Fast Track Court) Present:- Sri T.M.C.Vijaya Kumar, II Addl. Senior Civil Judge, Nandyal. F/A/C I Addl. Senior Civil Judge, Nandyal.
Tuesday, the seventeenth Day of March, 2015.
Original Suit No.921/2003 & O.S.No.106/2004
Original Suit No.921/2003 :
Between:-
Raghuprolu Kamsali Lakshmi Narasaiah …. Plaintiff
And
1. Raghuprolu Kamsali Lakshmi Narayana
2. Raghuprolu Kamsali Jaya Ramaiah
3. Sangamsetty Nagappa
4. Dasi Nagi Reddy …. Defendants -oo0oo-
Original Suit No.106/2004 :
Between:-
Raghupolu Lakshmi Narasaiah …. Plaintiff
And
Sangamsetty Nagappa …. Defendant -oo0oo-
These suits coming on 18.2.2015 before me for final hearing in the presence of Sri P.V.Subba Reddy, Advocate for the Plaintiff in both suits and of Sri T.Siva Prasad, Sri K.N.B.Narasinga Rao, Advocate for defendant No.2 in O.S.No.921/2003, and of Sri R.Nataraj, Advocate for the Defendant in O.S.No.106/2004, defendants No.1, 3 & 4 in
O.S.No.921/2003 remained set exparte and after hearing on both
sides, and after having stood over for consideration till today, this court delivered the following:-
C O M M O N J U D G M E N T
O.S.No.921/2003:
This suit for declaration of Plaintiff’s title over the entire ABCD property excluding ‘AEIG’ portion as shown in the plaint plan and plaint schedule and for recovery of possession of ‘ABCD’ property 2 excluding ‘AEIG’ portion of plaint plan along with flour mill, 10 HP motor and its all accessories along with two shutters in ‘IDJK’ as shown in the plaint plan and plaint schedule and future mesne profits and also costs of the suit.
2.The brief averments of the plaint are that the ABCD marked portion in the plaint plan which is plaint schedule property was purchased by the plaintiff under registered sale deed dt.15.7.1976 from one Perambaduru Kondaiah, son of Seshaiah and thereby he became absolute owner, possessor and enjoyer of the said ABCD marked open site, he purchased the same by raising his own funds and exertions and hence it is his self acquired property. Except the plaintiff nobody much less the defendants herein have got no manner of right over the said ABCD plaint schedule property. Out of the ABCD property, in AEGI which is measuring east-west:25 feet, north- south:26 feet, the plaintiff constructed two shop rooms and he gave the said shops to his sons K.R.Sreedhar Kumar and K.R.Rajasekhar and they are in possession and enjoyment of the same and he has filed house tax receipts to prove their possession. In EFGH portion of plaint plan, the plaintiff erected a hut and use to let out to others. On 1.4.2000 the 3rd defendant took EFGH marked hut from the plaintiff on oral lease for a period of three years agreeing to pay a monthly rent at the rate of Rs.500/- and ever since then the 3rd defendant has been running a Tiffin and tea hotel in the said EFGH marked. Since the 3rd defendant has not paid the lease amount to the plaintiff inspite of several demands though he has paid rent for one year. On 7.2.2013 the plaintiff got issued notice to the 3rd defendant seeking want possession of the EFGH marked portion of plaint plan and arrears of rent amount and he issued reply notice on 27.4.2003 with all false allegations.
3.The 3rd defendant has filed suit in O.S.No.290/2003 for permanent injunction restraining the plaintiff herein and 2nd defendant from interfering with the possession and enjoyment of plaint schedule property and evict him except through process of court. In IDJK marked portion of the plaint plan the plaintiff has constructed a room and installed a flour mill in the year 1976 after purchasing necessary motors, accessories, getting licence from the concerned authorities 3 and the plaintiff with bonafide intention and uplift of his brother 1st defendant had obtained flour mill license in the name of 1st defendant.
The 2nd defendant at the instigation of 1st defendant as the licence of said flour mill is in the name of 2nd defendant and taking undue advantage of the absence of plaintiff in Gadivemula village, highhandedly occupied the ‘IDJK’ flour mill of the plaintiff in the month of April, 1997 and subsequently let out the same to the 4th defendant without having any manner of right over the same. On 4.7.1999 the 1st defendant executed an agreement in favour of the plaintiff stating that the plaint schedule ABCD marked property is the self acquired property of the plaintiff, licence for the flour mill obtained in his name and he and his heirs have no manner of right over the IDJK flour mill.
On mutual understanding the 1st defendant has also agreed to pay
Rs.500/- per month from 2000 year for use and occupation of the said flour mill.
4. There is a clear invention and infringement upon the legal right of the plaintiff over the plaint schedule property except AEIG marked portion of the property. The entire ABCD property as it is self acquired property and the defendants 3 and 4 at the instigation of defendants 1 & 2 litigating the plaintiff and dragging the plaintiff to court of law without any manner of right. Hence, the Plaintiff has filed suit for declaration of right and title. Hence, the Plaintiff prays to pass a decree as prayed for.
5.On the other hand, the 2nd defendant filed his written statement denying all the allegations made in the plaint and contending inter-alia that the plaint schedule ABCD property is not exclusive property of the plaintiff and the said property was purchased by his father Kamsali
Bheemaiah, being manager of joint family consisting of plaintiff and defendants 1 and 2 and he died as member of joint family on 27.6.1983. The joint family consisting of plaintiff, defendants 1 and 2 and said Bheemaiah are having abundant ancestral properties in
Gadivemula and Korapolu villages. All the properties have been enjoying by the plaintiff, defendants 1 and 2 and the said Bheemaiah without division by metes and bounds including the plaint schedule property. Therefore, the plaint schedule property has been purchased 4 by the plaintiff out of the nucleus of the joint family properties and the same was treated as joint family properties for common enjoyment and division. Hence, the plaint schedule property is not self acquired property of same and he made a false claim over the same. Since the plaintiff being powerful and having cunning nature is not coming forward for partition and separate possession of shares in all the joint family properties including the plaint schedule property. The 2nd defendant has issued legal notice dt.20.12.2003 demanding the plaintiff and others to come forward for amicable partition and separate possession of all joint family properties. Since the plaintiff and 1st defendant being employees having independent income and the 2nd defendant has not income and living by agriculture income, the plaint schedule property is kept in possession and enjoyment of 2nd defendant as mutually agreed by all the members of joint family for taking out livelihood of 2nd defendant on temporary basis. The 2nd defendant has been rented out rice mill and hotel to the tenants and has been collecting rents for his livelihood.
6.The 2nd defendant denied the construction of shops and gave to his sons K.R.Sreedhar Kumar and K.R.Rajasekar and they are in possession and enjoyment of the same. The said shops shown in AEGI also constructed with the income of the joint family during life time of their father Bheemaiah. Therefore neither the plaintiff nor his sons have any rights over the AEGI portion of property which is part and parcel of the joint family properties. The plaintiff has created the tax receipts with an intention to grab the plaint schedule property. The 2nd defendant also denied that the plaintiff has erected hut and leased out to others and that the 3rd defendant took the said hut from the plaintiff on lease. The 2nd defendant has leased out the said EFGH to the3rd defendant on the monthly rent of Rs.50/- from 5.2.1999 and at present the 3rd defendant is paying the rent at Rs.250/- from
December, 2002 and he has been in possession and enjoyment of the same. Therefore the plaintiff has no manner of right, title over the
EFGH portion since it is not exclusive property of the plaintiff and it is a part and parcel of the joint family property. The 2nd defendant also denied that the plaintiff has constructed a flour mill in the year 1976 5 after purchasing the motor and accessories, the 1st defendant has spent huge amount in installing the flour mill in IDJK portion for the benefit and livelihood of 2nd defendant as all the joint family members mutually agreed to kept the same in possession of the 2nd defendant.
7.The 2nd defendant also specifically denied that the plaintiff issued notice dt.25.6.2003 demanding the 1st defendant to pay Rs.500/- per month from 1.1.2002 together with interest and also denied that the plaintiff has created the said agreement dt.4.7.1999 said to be executed by the 1st defendant in favour of the plaintiff. The plaint schedule property is not at all exclusive property of plaintiff and that the schedule property is kept in possession and enjoyment of 2nd defendant for his livelihood by all the members and the plaintiff is not entitled to seek any declaration of title in respect of schedule property.
The suit is bad for non-joinder of necessary parties, since the schedule property is part and parcel of the joint family properties and all the members should be joined the suit as parties. Hence, pray to dismiss the suit.
8.Based on the rival pleadings in the plaint and written statement, the following issues were settled for trial:-
Issues:-
1)Whether the Plaintiff is entitled for declaration of title over the entire ABCD property excluding AEIG portion as shown in the plaint plan?
2)Whether the plaintiff is entitled for recovery of possession of ABCD property as prayed for?
3) Whether the Plaintiff is entitled for future mesne profits as prayed for?
4)To what relief?
O.S.No.106/2004:
9.This suit for recovery of Rs.18,340/- being the arrears of lease amount with interest at 12% p.a., and costs of the suit.
10.The brief averments of the plaint are that the plaintiff is the owner of the plaint schedule property and having purchase the same under registered sale deed dt.15.9.1976 from Kondaiah. The 6 defendant is tenant of the plaintiff in respect of schedule property on 1.4.2000 has taken the schedule property for a monthly rent of
Rs.500/-, the defendant has paid rent amount for one year and subsequently committed default in paying the amount. The defendant has filed suit in O.S.No.290/2003 against the plaintiff for permanent injunction restraining the plaintiff and his brother from interfering with the possession and enjoyment and evict them except through process of court. The aforesaid suit as the defendant was filed by suppressing truth and suggesting all falsehood that to creating tenancy in favour of brother of plaintiff in collusion. The said suit is being contested and still pending for trial. The plaintiff also filed separate suit to direct the defendant to deliver the vacant possession of the suit schedule hut to the plaintiff immediately and for other ancillary reliefs. Therefore, the plaintiff is constrained to file the suit for recovery of arrears of rent due from the defendant with effect from 1.4.2001 till 1.12.2003.
Hence, the suit.
11.On the other hand, the defendant filed his written statement denying all the allegations made in the plaint and contending that the plaint schedule property belongs to R.K.Jayaramaiah, son of
Bheemaiah, brother of plaintiff and the said Jayaramaiah has been in possession and enjoyment of the same and the defendant took the schedule property on monthly rent of Rs.50/- on 5.2.1999 from him.
In the plaint schedule property, the defendant is running a tea stall.
The defendant denied that he has taken the schedule property on a monthly rent of Rs.500/- from 1.4.2000 and the defendant denied the issue of legal notice to him and that he never took the schedule property on lease from the defendant, the payment of lease amount to the plaintiff does not arise and he has no right to collect amount from the defendant. Since the plaintiff threatens the defendant do disposes from the plaint schedule property highhandedly, the defendant has filed suit in O.S.No.290/2003 against the plaintiff and one Jaya
Ramaiah for permanent injunction as prayed for by him. The plaintiff’s suit is not maintainable in law and the claim of the plaintiff is not in time and the defendant is not at all tenant of plaintiff and there is no relationship of landlord and tenant between the plaintiff and the defendant prays to dismiss the suit.
7
12.Based on the rival pleadings in the plaint and written statement, the following issues were settled for trial:-
Issues:-
1)Whether the Plaintiff is entitled for recovery of amount?
2)Whether the suit is barred by limitation?
3) Whether the suit is bad for non-joinder of necessary party?
4) Whether there is relationship of land lord and tenant between plaintiff and defendant?
5)To what relief?
13.The counsel for plaintiff in O.S.No.921/2003 has filed a petition in I.A.No.1475/2007 pray to club the suit in O.S.No.106/2004 with
O.S.No.921/2003 and record common evidence presented in
O.S.No.921/2003. Since O.S.No.106/2004 has been clubbed with
O.S.No.921/2003 for common enquiry and the common evidence for
both the suits have been recorded in O.S.No.921/2003.
14.On behalf of the Plaintiff, P.Ws 1 to 7 are examined and got marked Exs.A.1 to A.25. Ex.A1 is the plaint plan, Ex.A2 is the registered sale deed executed sale deed dt.15.9.1976, Ex.A3 is the statement of P.Kondaiah, Ex.A4 is the house tax receipt, Ex.A5 is the another tax receipt, Ex.A6 is the test certificate, Ex.A7 is the office copy of registered notice, Ex.A8 is the postal acknowledgment, Ex.A9 is the reply notice dt.7.1.2003, Ex.A10 is the notice, Ex.A11 is the reply notice, Ex.A12 is the copy of caveat in O.P.No.42/2003, Ex.A13 is the copy of caveat petition in O.P.No.73/2003, Ex.A14 is the served copy of plaint in O.S.No.290/2003 on the file of Prl.Junior Civil Judge’s
Court, Nandyal, Ex.A15 is the served copy of injunction petition in
I.A.No.867/2003 in O.S.No.290/2003, Ex.A16 is the letter addressed to the Secretary to the Govt. dt.18.6.1990, Ex.A17 is the certified copy of unregistered partition deed, Ex.A18 is the letter addressed by
Electricity Department, Ex.A19 is the proceedings of
Rc.No.695/MPHEO/05 dt.20.5.2005, Ex.A20 is the sale deed
dt.28.1.1995, Ex.A21 is the registration copy of sale deed dt.4.5.1995,
Ex.A22 is the registered sale deed dt.26.9.1980, Ex.A23 is the unregistered agreement of sale dt.23.10.1988, Ex.A24 is the 8 unregistered agreement of sale dt.20.7.1979 and Ex.A25 is the registered sale deed dt.20.6.2005 (Exs.A18 to A25 are certified copies).
15.On behalf of the Defendants, DW.1 to DW.3 were examined and marked Exs.B1 to B51. Ex.B1 is the death certificate of R.Bheemaiah dt.27.6.1993, Ex.B2 is the registration copy of sale deed dt.15.9.1976,
Ex.B3 is the registration copy of sale deed dt.26.9.1980, Ex.B4 is the registered sale deed dt.1.9.1982, Ex.B5 is the registration copy of sale deed dt.1.8.1988, Ex.B6 is the office copy of notice dt.20.12.2003,
Ex.B7 is reply notice dt.9.1.2004, Exs.B8 & B9 are the postal acknowledgments, Ex.B10 is the invitation card, Ex.B11 is the certificate issued by Village Revenue Officer on 27.6.2007, Exs.B12 to
B25 are the electricity bills, Ex.B26 is the receipt dt.15.3.1993,
Exs.B27 to B31 are the land revenue receipts, Ex.B32 is the water tax receipt, Ex.B33 is the tap fee receipt, Exs.B34 to B40 are the house tax receipts, Exs.B41 to B48 are the receipts pay for factory licence,
Ex.B49 is the proceedings of DM&HO dt.1.5.1976, Ex.B50 is the plan showing the proposed installation of 10 HP motor, Ex.B51 is the letter addressed by the Inspector of Factories to the Sarpanch, Gadivemula on 6.8.1976.
16.Heard both sides. Both the counsel filed their written arguments.
17.Issues 1 and 2 in O.S.No.921/2003 :-
1)Whether the Plaintiff is entitled for declaration of title over the entire ABCD property excluding AEIG portion as shown in the plaint plan?
2)Whether the plaintiff is entitled for recovery of possession of ABCD property as prayed for?
Since these issues are interlinked they are answered together.
The contention of the Plaintiff is that the plaint schedule ABCD property is his exclusive property purchased by him under registered sale deed dt.15.9.1976 from Kondaiah for a consideration of
Rs.1,300/- and he has constructed two shops in AEGI and constructed flour mill in IDJK of plaint plan in the year 1976 and he let out the
EFGH portion of plaint plan to 3rd defendant on 1.4.2000 and therefore 9 the said ABCD property is his exclusive property having right and title over the same by virtue of registered sale deed dt.15.9.1976.
18. On the other hand, the 2nd defendant is contending that the plaint schedule ABCD property is not exclusive property of the plaintiff and the said property was purchased by the father of plaintiff and defendants 1 and 2 by name Bheemaiah, the shops and flour mill were constructed by the said Bheemaiah out of the income of joint family and the flour mill constructed in IDJK portion of plaint plan is kept in possession and enjoyment of the defendant for his livelihood by all the members of joint family including the plaintiff herein. Therefore, the plaint schedule property has been in joint possession and enjoyment of all the joint family members and the said property is not at all in exclusive possession of the plaintiff.
19.To prove his exclusive possession, the plaintiff has filed Ex.A2 registered sale deed dt.15.9.1976, Ex.A4 & A5 house tax receipts,
Ex.A6 Hindustan Brown Bovary Limited test certificate, Exs.A18 letter addressed by the Electricity Department, Nandyal & A19 proceedings dt.20.5.2005 of D.M.&H.O., Kurnool. Except the said documents, the plaintiff has not filed any record to show that the plaint schedule property has been in his exclusive possession and enjoyment.
20.On the other hand, the 2nd defendant contended that the flour mill was constructed by said Bheemaiah after purchasing the said item of plaint schedule property under registered sale deed dt.15.9.1976 and the said item has been in joint possession and enjoyment of the plaintiff and defendants 1 and 2. The 2nd defendant has filed Exs.B12 to B25 electricity bills in the name of R.Lakshminarayana (D1) for service No.69 of flour mill, Ex.B26 receipt for electricity bill, Exs.B27 to
B31 land revenue receipts in the name of Jayaramaiah (2nd defendant) pertaining to flour mill, Exs.B32 & B33 are water tax receipts in the name of Jayaramaiah (D2), Exs.B34 to B40 house tax receipts in the name of Jayaramaiah (D2) for the house bearing No.1-33, Exs.B41 to
B48 factory licence fee receipts in the name of 2nd defendant, Ex.49 proceedings of DMHO dt.4.5.1976 in respect of flour mill in the name of Lakshmi Narayana (D1), Ex.B50 plan showing proposed installation of flour mill in the name of 1st defendant and Ex.B51 letter addressed 10 by Inspector of factories to Sarpanch, Gadivemula in the name of 1st defendant.
21.The counsel for 2nd defendant also relied on a decision reported in 2008(3) ALD 657 (DB) in a case between Kasaram Jayamma and another vs. Jajala Lakshmamma and others wherein it was held that “the burden of proving the property to be joint family
property always lies on the person who so asserts. However,
once he proves that the family possessed sufficient nucleus
with the aid of which the suit properties could be acquired,
then a presumption has to be drawn that the properties are
joint and consequently, the burden of proof shifts to the person
claiming them to be self-acquired.”
22.Further, he relied on a decision reported in 2006(6) ALD 103
in a case between Gunturu Venkata Rao vs. Gunturu
Venkateswarlu (died)by LRs and others, wherein it was held that
“Mere joint residene does not give rise to presumption that
properties are joint family properties and merely because all
the members of the joint family reside separately it cannot also
be presumed that the properties are not joint family properties.
If there is any nucleus of the joint family properties the burden
lies on the plaintiff to prove that the said properties are not
joint family properties but they are self acqauired properties.”
23.Further, the counsel for 2nd defendant also relied on another decision reported in 2005(4) ALD 342 in a case between Pulimi
Bapa Reddy vs. Pulimi Dasaradharama Reddy (died) by LRs, wherein it was held that “where a co-parcener asserting the
jointness of the proeprty, proves to the satisfaction the court,
that there existed sufficient nucleus for the joint family to
acquire properties, the burden shifts to the one, who pleads
that any item of properties, is his self-acquisition.”
24.On perusal of the citations submitted by the counsel for 2nd defendant, it is learnt that the plaint schedule property is in joint possession and enjoyment of the plaintiff and defendants 1 & 2.
11
25.On perusal of above documents, it is learnt that the plaint schedule property wherein flour mill is established has been in joint possession and enjoyment of the plaintiff and defendants 1 and 2 and the plaintiff never in exclusive possession and enjoyment of the same ever since from the date of registered sale deed dt.15.9.1976. On perusal of evidence of PW.1, he admitted that he has not filed any record to show that he has constructed two rooms and flour mill and the licence of flour mill is in the name of R.Lakshmi Narayana (D1) and he got it transferred during the year 2005 after filing of the suit.
Therefore, the plaint schedule property has been in joint possession and enjoyment of the plaintiff, 1st defendant and 2nd defendant. The plaintiff has not filed any record to show that the plaint schedule property is in his exclusive possession.
26.The counsel for plaintiff relied on a decision reported in (i) AIR 1945 Calcutta 458 (DB) in a case between Jithendra Nath Sur Vs.
Amarendra Nath Sur, wherein it was held that “where the sale certificate stands in the name of “A”, the court is bound to presume that he is the real owner of the property and the burden lies upon the party alleging the contra to rebut the presumption and show that the apparent state of affairs is not the real state”.
(ii) Another decision reported in AIR 1956 AP 255 in a case between Mallapudi Narasimha Murthy vs. Mullapudu Nagabhushanam, wherein it was held that “unless it is shown that there was a substantial nucleus of joint family property from the income of which, after meeting the family expenses, the property subsequently acquired could have been purchased, it could not be assumed that the subsequent acquisition was joint family property. If property is acquired by a member of a joint Hindu family the onus of proving that the acquisition is for the benefit of the family, is upon person setting up the plea.”
(iii) Another decision reported in AIR 1958 AP 147 (DB) in a case between Yendapalli Venkata Raju (died) & another vs. Yendapalli
Yedukondalu @ Venkateswarlu & others, wherein it was held that “if it is established that the family owned joint property which might have 12 reasonably formed the nucleus wherefrom the property in dispute could have been acquired, there is a shifting of the burden to the parties setting up exclusive title to the properties on the ground of acquisition as a result of his own exertions and without any help from the joint family property.”
27.On perusal of citations submitted by the counsel for plaintiff, it is learnt that since the plaint schedule properties could not be proved that they are self acquired properties of plaintiff. As such the citations submitted by him do not suit to the facts and circumstances of the case.
28.Since the plaintiff has filed the suit for declaration of title in respect of plaint schedule property, the burden heavily lies on him to prove that the plaint schedule property is his exclusive property and the same was purchased by him from out of his own income and he has been in exclusive possession and enjoyment of the same without anybodies interruption. But in the instant case, the plaintiff has totally failed to establish that the plaint schedule property is his exclusive property and he has been in exclusive possession and enjoyment of the same. Therefore, the plaintiff has not discharged his burden with cogent documentary evidence. PW.2 to PW.7 did not support the case of the plaintiff with regard to exclusive possession and enjoyment of the plaint schedule property. Therefore the plaintiff is not entitled to recovery of possession of plaint schedule property from the 2nd defendant as the plaint schedule property is not exclusive property of plaintiff and the same is in joint possession and enjoyment of the plaintiff and defendants 1 and 2.
29.In the light of the above discussion and facts and circumstances of the case, the 2nd defendant is able to prove that the plaint schedule property is in joint possession and enjoyment of the plaintiff and defendants 1 and 2 and the same is not self acquired property of plaintiff. Therefore, the 2nddefendant has established with documentary evidence that the plaint schedule property has been in joint possession and enjoyment of plaintiff and defendants No.1 & 2.
Accordingly, these issues are answered against the plaintiff.
13
30. Issue No.3 in O.S.No.921/2003 :
Whether the plaintiff is entitled for future mesne profits as prayed for?
Since the plaintiff failed to prove his right, title, possession and enjoyment over the plaint schedule property, he is not entitled to any mesne profits. On the other hand, the 2nd defendant proved that the plaint schedule property is in joint possession and enjoyment of the plaintiff and defendants 1 & 2 and the same is not the exclusive property of the plaintiff and moreover the plaint schedule property is kept in possession and enjoyment of the 2nd defendant with all the consent of family members of his livelihood. Accordingly, this issue is answered against the plaintiff.
31. Issues No.1 & 4 in O.S.No.106/2004 :
1) Whether the plaintiff is entitled for recovery of amount?
4) Whether there is relationship of landlord and tenant between plaintiff and defendant?
The contention of the plaintiff is that he leased out the plaint schedule property to the defendant on monthly rent of Rs.500/- on 1.4.2000 and he has paid the rent amount for a period of one year and he subsequently failed to pay the same. The plaintiff has also issued legal notice demanding the defendant to pay the arrears of lease amount. Since the defendant did not comply the terms of lease, the plaintiff has filed the suit for recovery of arrears of lease amount.
32. On the other hand, the defendant filed his written statement contending that the plaintiff has never leased out the plaint schedule property to him and has taken the schedule property on lease from one R.K.Jayaramaiah on monthly rent of Rs.50/- from 5.2.1999 and has been running a tea stall in the same and from December, 2002 the defendant has paying Rs.250/- per month and has been regularly paying the lease amount to him and is not liable to pay any lease amount to the plaintiff. The defendant denied the issue of the legal notice by the plaintiff to him. Since the plaintiff threatens the defendant for eviction of schedule property, the defendant has filed 14
O.S.No.290/2003 for permanent injunction and the said suit was
ended in his favour. Therefore, the defendant is not liable to pay lease amount to the plaintiff.
33. On perusal it is learnt that the plaintiff totally failed to establish that the plaint schedule property is exclusive property of the plaintiff and on the other hand, the 2nd defendant in O.S.No.921/2003 which is clubbed with this suit is able to prove that the plaint schedule property is a part of the joint family property and the same is in possession and enjoyment of family members and the same is not exclusive property of the plaintiff. Therefore, there is no relationship of landlord and tenant between the plaintiff and the defendant and there is no record to show that the plaintiff has leased out the plaint schedule property to the defendant on 1.4.2000 and he has paid the lease amount for one year. The plaintiff during cross-examination has clearly admitted that there is no record to show that he has leased out the same to the defendant and payment of one year lease amount to him. Hence, the contention of the plaintiff is not tenable and there is no proof of landlord and tenancy with regard to the plaint schedule property between the plaintiff and the defendant.
34.Hence, in the light of the above facts and circumstances, the burden is on the plaintiff to prove that the plaint schedule property is exclusive property and he has been in possession and enjoyment of the same exclusively and he has to establish that he has leased out the same to the defendant. But the plaintiff has not discharged his burden with cogent documentary evidence to prove his right and title over the plaint schedule property and on the other hand, the defendant in O.S.No.921/2003 has proved that the plaint schedule property is in joint possession and enjoyment of the plaintiff and defendants 1 and 2 and the same is not exclusive property of the plaintiff. Hence, the plaintiff is not entitled to recovery of amount and there is no relationship of landlord and tenant between the plaintiff and defendant. Accordingly, these issues are answered against the plaintiff.
15
35.Issues No.2 & 3 in O.S.No.106/2004 :
2) Whether the suit is barred by limitation?
3)Whether the suit is bad for non-joinder of necessary party?
The defendant contended in his written statement that that the suit is not in time and it is barred by limitation. Further the defendant contended in his written statement that the plaintiff is fully aware through the reply notice issued by the defendant that one Jayaramaiah has leased out the schedule property to the defendant and not the plaintiff, therefore the said Jayaramaiah is necessary and property party to the suit and without him, the matter in dispute cannot be adjudicated judiciously. Further the defendant contended in his written statement that the suit is not in time and it is barred by limitation. But the defendant in O.S.No.921/2003 proved that the plaint schedule property is the joint family property and the same is in joint possession and enjoyment of the plaintiff and defendants in
O.S.No.921/2003 and also the same is not exclusive property of the
plaintiff herein. Hence, there is a force in the contention of the defendant. Accordingly, the issues are answered against the plaintiff.
36.ISSUE No.4 in O.S.No.921/2003 : To what relief?
In the result, the suit is dismissed. As both parties are closely related, that each party to bear their own costs.
37.ISSUE No.5 in O.S.No.106/2004 : To what relief?
In the result, the suit is dismissed with costs.
Typed to my dictation, corrected, signed and pronounced by me in the open court, this the 17th day of March, 2015.
II Addl. Senior Civil Judge, Nandyal. F/A/C I Addl. Senior Civil Judge, Nandyal.
16
Appendix of Evidence
(Witnesses examined)
For the Plaintiff:-Defendants:
P.W.1: R.Lakshmi NarasaiahDW.1: R.Jayaramaiah
P.W.2: Pinjari Nadipi Jamal SahebDW.2: D. Sanjeeva Reddy
P.W.3: Gandla Sivaramaiah @ Sivanna DW.3: V.Bali Reddy
P.W.4: Raghuprolu Saraswathamma
P.W.5: Vadde Subbanna
P.W.6: Doni Venkata Subbaiah
P.W.7: Belum Venkata Subba Reddy
Exhibits marked
For the Plaintiff:-
Ex.A1 is the plaint plan.
Ex.A2 is the registered sale deed executed sale deed dt.15.9.1976.
Ex.A3 is the statement of P.Kondaiah.
Ex.A4 is the house tax receipt dt.20.3.2003.
Ex.A5 is the another tax receipt dt.20.3.2003.
Ex.A6 is the Hindustan brown bovari limited test certificate.
Ex.A7 is the office copy of registered notice dt.25.6.2003.
Ex.A8 is the postal acknowledgment.
Ex.A9 is the reply notice dt.7.1.2003.
Ex.A10 is the notice dt.12.4.2003.
Ex.A11 is the reply notice dt.27.4.2003.
Ex.A12 is the copy of caveat in O.P.No.42/2003.
Ex.A13 is the copy of caveat petition in O.P.No.73/2003.
Ex.A14 is the served copy of plaint in O.S.No.290/2003 on the file of
Prl.Junior Civil Judge’s Court, Nandyal.
Ex.A15 is the served copy of injunction petition in I.A.No.867/2003 in
O.S.No.290/2003.
Ex.A16 is the letter addressed to the Secretary to the Govt.
dt.18.6.1990.
Ex.A17 is the certified copy of unregistered partition deed dt.15.6.1990.
Ex.A18 is the letter addressed by Electricity Department.
Ex.A19 is the proceedings of Rc.No.695/MPHEO/05 dt.20.5.2005.
Ex.A20 is the sale deed dt.28.1.1995.
Ex.A21 is the registration copy of sale deed dt.4.5.1995.
17
Ex.A22 is the registered sale deed dt.26.9.1980.
Ex.A23 is the unregistered agreement of sale dt.23.10.1988.
Ex.A24 is the unregistered agreement of sale dt.20.7.1979.
Ex.A25 is the registered sale deed dt.20.6.2005 (Exs.A18 to A25 are certified copies).
For the Defendants:-
Ex.B1 is the death certificate of R.Bheemaiah dt.27.6.1993.
Ex.B2 is the registration copy of sale deed dt.15.9.1976.
Ex.B3 is the registration copy of sale deed dt.26.9.1980.
Ex.B4 is the registered sale deed dt.1.9.1982.
Ex.B5 is the registration copy of sale deed dt.1.8.1988.
Ex.B6 is the office copy of notice dt.20.12.2003.
Ex.B7 is reply notice dt.9.1.2004.
Exs.B8 & B9 are the postal acknowledgments.
Ex.B10 is the invitation card.
Ex.B11 is the certificate issued by Village Revenue Officer on 27.6.2007.
Exs.B12 to B25 are the electricity bills.
Ex.B26 is the receipt dt.15.3.1993.
Exs.B27 to B31 are the land revenue receipts.
Ex.B32 is the water tax receipt.
Ex.B33 is the tap fee receipt.
Exs.B34 to B40 are the house tax receipts.
Exs.B41 to B48 are the receipts pay for factory licence.
Ex.B49 is the proceedings of DM&HO dt.1.5.1976.
Ex.B50 is the plan showing the proposed installation of 10 HP motor.
Ex.B51 is the letter addressed by the Inspector of Factories to the Sarpanch, Gadivemula on 6.8.1976.
II A.S.C.J, Ndl. F/A/C I A.S.C.J, Ndl.
IN THE COURT OF THE I-ADDL. SENIOR CIVIL JUDGE, NANDYAL.
(Fast Track Court) Present:- Sri T.M.C.Vijaya Kumar, II Addl. Senior Civil Judge, Nandyal. F/A/C I Addl. Senior Civil Judge, Nandyal.
Tuesday, the seventeenth Day of March, 2015.
Original Suit No.921/2003 :
Between:-
Raghuprolu Kamsali Lakshmi Narasaiah, aged about 56 years, s/o Bheemaiah, Hindu, working as Mandal Revenue Inspector in the office of Mandal Revenue Officer at Kurnool, resident of Door No.40-354-30, Nandyal Gate, Kurnool. …. Plaintiff
And
1. Raghuprolu Kamsali Lakshmi Narayana, aged about 48 years, s/o Bheemaiah, Hindu, r/o Gadivemula village, post and mandal, Kurnool district, now working as clerk in APSRTC Depot, Rajampeta, Cuddapah district.
2. Raghuprolu Kamsali Jaya Ramaiah, aged about 46 years, s/o Bhyeemaiah, Hindu, agriculturist, r/o Gadivemula village post and mandal, Kurnool district.
3. Sangamsetty Nagappa, aged about 60 years, s/o Pedda Veerappa, Hindu, Tea and Tiffin business, r/o near RTC bus stand, Gadivemula village, post and mandal, Kurnool district.
4. Dasi Nagi Reddy, aged about 45 years, s/o Subba Reddy, Hindu, agriculturist, r/o Gadivemula village post and mandal, Kurnool district.
…. Defendants -oo0oo-
This suit for declaration of Plaintiff’s title over the entire ABCD property excluding ‘AEIG’ portion as shown in the plaint plan and plaint schedule and for recovery of possession of ‘ABCD’ property excluding ‘AEIG’ portion of plaint plan along with flour mill, 10 HP motor and its all accessories along with two shutters in ‘IDJK’ as shown in the plaint plan and plaint schedule and future mesne profits and also costs of the suit.
Plaint presented on 6.11.2003 and filed on 18.12.2003. J.V. of
Rs.37,500/- (3/4th of the market value of Rs.50,000/-) and J.V. of
Rs.13,500/- (3/4th of the market value of Rs.18,000/-) and a Court
Fee of Rs.2,026/- & Rs.996/- (Total Rs.3,022/-) is paid under Section 24 (a) of A.P.C.F & S.V. Act, 1956.
The cause of action for this suit arose at Gadivemula village since the plaint schedule property situated, within the jurisdiction of this court.
2
This suit coming on 18.2.2015 before me for final hearing in the presence of Sri P.V.Subba Reddy, Advocate for the Plaintiff and of Sri
T.Siva Prasad, Sri K.N.B.Narasinga Rao, Advocates for defendant No.2, defendants No.1, 3 & 4 remained set exparte and after hearing on both sides, and after having stood over for consideration till today, this court doth order and passed the decree as follows:-
1) that the suit be and the same is hereby dismissed.
2) that each party do bear their own costs.
Given under my hand and seal of the court, this the 17th day of
March, 2015.
II Addl. Senior Civil Judge, Nandyal. FAC I-Addl.Senior Civil Judge, Nandyal.
Schedule
Property situate in Kurnool Registration District, Orvakal Sub-
Registration District, within the village limits of Gadivemula and the particulars of the same are stated as hereunder:
I (a) Particulars of ABCD open site:
Survey No.307/2 Ac.0.06 ¼ cents.
Measurements :
East : Kallam of Perambuduru Ramagovindu;
West: Rastha;
North: Public road;
South: Site of Kondaiah;
Measurements : East-west : 60 feet;
North-south: 49 feet;
(b) Plaint plan marked ‘EFGH’ hut with iron sheet in the possession of 3rd defendant on behalf of 1st defendant.
Boundaries:
East : Site of plaintiff;
West: Shops belonging to plaintiff;
North: Road;
South: IDJK marked site with flour mill therein;
Measurements : East-west : 8 feet;
North-south: 25 feet; 3 (C) Plaint plan marked ‘IDJK’ marked portion is in possession of 4th defendant on behalf of defendants 1 and 2. Boundaries:
East : ‘FHJKCB’ site of plaintiff;
West: Rastha;
North: Shop rooms of plaintiff i.e., ‘AEIG’ marked portion of plaint plan;
South: Site of Kondaiah;
Measurements : East-west : 36 feet;
North-south: 25 feet;
(d) Plaint plan marked ‘FHJKCB’ plaint plan marked remaining site is in possession and enjoyment of 2nd defendant. Boundaries:
East : Site of Perambuduru Ramagovindu;
West: ‘EFGH’ hut of plaintiff;
North: Road;
South: Site of Kondaiah;
Market value of the ‘ABCD’ property excluding ‘AEIG’ portion as per the valuation certificate issued by the Sub-Registrar, Orvakal dated 12.8.2003 is Rs.50,000/- (Value corrected to the round figure).
II. In ‘IDJK’ portion of plaint plan there are flour mill, 10 HP electric motor, its all accessories along with two shutters.
The above properties are valued by the plaintiff notionally at Rs.18,000/-.
II-ASCJ,Ndl.
FAC I-ASCJ,Ndl.
Memo of Costs
For PlaintiffFor Defendant No.2
Stamp on VakalatRs. 2=00 Rs. 2=00 Stamp on PlaintRs. 3022=00 Stamp on ProcessRs. 260=00 Advocate Commis- sioner’s FeeRs. 750=00 Advocate’s FeeRs. 5100=00 Rs. 5100=00 Jr.Advocate feeRs. 1700=00 Writing ChargesRs. 10=00 Typing chargesRs. 50=00
---------------- ---------------
Total :Rs.10,894=00 Rs. 5102=00
---------------- ---------------
II A.S.C.J, Ndl. FAC I-ASCJ,Ndl.
Encl: Plaint plan (Ex.A1)
IN THE COURT OF THE I-ADDL. SENIOR CIVIL JUDGE, NANDYAL.
(Fast Track Court) Present:- Sri T.M.C.Vijaya Kumar, II Addl. Senior Civil Judge, Nandyal. F/A/C I Addl. Senior Civil Judge, Nandyal.
Tuesday, the seventeenth Day of March, 2015.
Original Suit No.106/2004
Between:-
Raghupolu Lakshmi Narasaiah, s/o Bheemaiah, aged about 52 years, Hindu, employee at Kurnool, resident of Kurnool, Kurnool district. …. Plaintiff
And
Sangamsetty Nagappa, s/o Pedda Veerappa, Aged about 54 years, Hindu, Tea and Tiffin hotel, Near RTC bus-stand, Gadivemula village & Mandalam, Kurnool district. …. Defendant -oo0oo-
This suit for recovery of Rs.18,340/- being the arrears of lease amount with interest at 12% p.a., and costs of the suit. The brief averments of the plaint are that the plaintiff is the owner of the plaint schedule property and having purchase the same under registered sale deed dt.15.9.1976 from Kondaiah. The defendant is tenant of the plaintiff in respect of schedule property on 1.4.2000 has taken the schedule property for a monthly rent of Rs.500/-, the defendant has paid rent amount for one year and subsequently committed default in paying the amount. The defendant has filed suit in O.S.No.290/2003 against the plaintiff for permanent injunction restraining the plaintiff and his brother from interfering with the possession and enjoyment and evict them except through process of court. The aforesaid suit as the defendant was filed by suppressing truth and suggesting all falsehood that to creating tenancy in favour of brother of plaintiff in collusion. The said suit is being contested and still pending for trial.
The plaintiff also filed separate suit to direct the defendant to deliver the vacant possession of the suit schedule hut to the plaintiff immediately and for other ancillary reliefs. Therefore, the plaintiff is constrained to file the suit for recovery of arrears of rent due from the defendant with effect from 1.4.2001 till 1.12.2003. Hence, the suit.
Plaint presented on 2.12.2003 and filed on 29.12.2003. J.V. of
Rs.18,340/- and a Court Fee of Rs.1,296/- is paid under Section 20 of
A.P.C.F & S.V. Act, 1956.
2
The cause of action for this suit arose on 1.4.2000 at
Gadivemula village since the plaint schedule property situated, when the defendant took the plaint schedule hut as tenant of the plaintiff, within the jurisdiction of this court.
This suit coming on 18.2.2015 before me for final hearing in the presence of Sri P.V.Subba Reddy, Advocate for the Plaintiff and of and of Sri R.Nataraj, Advocate for the Defendant and after hearing on both sides, and after having stood over for consideration till today, this court doth order and passed the decree as follows:-
1) that the suit be and the same is hereby dismissed.
2) that the plaintiff do pay to the defendant a sum of Rs.1583/- being the costs of the suit.
Given under my hand and seal of the court, this the 17th day of
March, 2015.
II Addl. Senior Civil Judge, Nandyal. FAC I-Addl.Senior Civil Judge, Nandyal.
Memo of Costs
For Plaintiff For Defendant
Stamp on VakalatRs. 2=00 Rs. 2=00 Stamp on PlaintRs. 1296=00 Stamp on ProcessRs. 65=00 Advocate’s FeeRs. 1581=00 Rs. 1581=00 Jr.Advocate feeRs. -- Writing ChargesRs. 10=00 Typing chargesRs. 50=00
---------------- ---------------
Total :Rs. 3,004=00 Rs. 1583=00
---------------- ---------------
II A.S.C.J, Ndl. FAC I-ASCJ,Ndl.
S c h e d u l e
Hut with iron sheets (Non-residential) situate in Kurnool District,
Orvakal Sub-Registration District and within grama panchayat limits of
Gadivemula and the details are furnished as hereunder:
S.No.307/2, 6¼ cents pyki 1 cent.
3
Hut with boundaries:
East : Open site of plaintiff and others;
West: Shops belonging to plaintiff;
North: Public road;
South: Floor mill room of plaintiff and site of Kondaiah;
II-ASCJ,Ndl.
FAC I-ASCJ,Ndl.
IN THE COURT OF THE I ADDL. SENIOR CIVIL JUDGE, NANDYAL.
(Fast Track Court) Present:- Sri T.M.C.Vijaya Kumar, II Addl. Senior Civil Judge, Nandyal. F/A/C I Addl. Senior Civil Judge, Nandyal.
Tuesday, the seventeenth Day of March, 2015.
Original Suit No.921/2003 & O.S.No.106/2004
Original Suit No.921/2003 :
Between:-
Raghuprolu Kamsali Lakshmi Narasaiah …. Plaintiff
And
1. Raghuprolu Kamsali Lakshmi Narayana
2. Raghuprolu Kamsali Jaya Ramaiah
3. Sangamsetty Nagappa
4. Dasi Nagi Reddy …. Defendants -oo0oo-
Original Suit No.106/2004 :
Between:-
Raghupolu Lakshmi Narasaiah …. Plaintiff
And
Sangamsetty Nagappa …. Defendant -oo0oo-
These suits coming on 18.2.2015 before me for final hearing in the presence of Sri P.V.Subba Reddy, Advocate for the Plaintiff in both suits and of Sri T.Siva Prasad, Sri K.N.B.Narasinga Rao, Advocate for defendant No.2 in O.S.No.921/2003, and of Sri R.Nataraj, Advocate for the Defendant in O.S.No.106/2004, defendants No.1, 3 & 4 in
O.S.No.921/2003 remained set exparte and after hearing on both
sides, and after having stood over for consideration till today, this court delivered the following:-
C O M M O N J U D G M E N T
O.S.No.921/2003:
This suit for declaration of Plaintiff’s title over the entire ABCD property excluding ‘AEIG’ portion as shown in the plaint plan and plaint schedule and for recovery of possession of ‘ABCD’ property 2 excluding ‘AEIG’ portion of plaint plan along with flour mill, 10 HP motor and its all accessories along with two shutters in ‘IDJK’ as shown in the plaint plan and plaint schedule and future mesne profits and also costs of the suit.
2.The brief averments of the plaint are that the ABCD marked portion in the plaint plan which is plaint schedule property was purchased by the plaintiff under registered sale deed dt.15.7.1976 from one Perambaduru Kondaiah, son of Seshaiah and thereby he became absolute owner, possessor and enjoyer of the said ABCD marked open site, he purchased the same by raising his own funds and exertions and hence it is his self acquired property. Except the plaintiff nobody much less the defendants herein have got no manner of right over the said ABCD plaint schedule property. Out of the ABCD property, in AEGI which is measuring east-west:25 feet, north- south:26 feet, the plaintiff constructed two shop rooms and he gave the said shops to his sons K.R.Sreedhar Kumar and K.R.Rajasekhar and they are in possession and enjoyment of the same and he has filed house tax receipts to prove their possession. In EFGH portion of plaint plan, the plaintiff erected a hut and use to let out to others. On 1.4.2000 the 3rd defendant took EFGH marked hut from the plaintiff on oral lease for a period of three years agreeing to pay a monthly rent at the rate of Rs.500/- and ever since then the 3rd defendant has been running a Tiffin and tea hotel in the said EFGH marked. Since the 3rd defendant has not paid the lease amount to the plaintiff inspite of several demands though he has paid rent for one year. On 7.2.2013 the plaintiff got issued notice to the 3rd defendant seeking want possession of the EFGH marked portion of plaint plan and arrears of rent amount and he issued reply notice on 27.4.2003 with all false allegations.
3.The 3rd defendant has filed suit in O.S.No.290/2003 for permanent injunction restraining the plaintiff herein and 2nd defendant from interfering with the possession and enjoyment of plaint schedule property and evict him except through process of court. In IDJK marked portion of the plaint plan the plaintiff has constructed a room and installed a flour mill in the year 1976 after purchasing necessary motors, accessories, getting licence from the concerned authorities 3 and the plaintiff with bonafide intention and uplift of his brother 1st defendant had obtained flour mill license in the name of 1st defendant.
The 2nd defendant at the instigation of 1st defendant as the licence of said flour mill is in the name of 2nd defendant and taking undue advantage of the absence of plaintiff in Gadivemula village, highhandedly occupied the ‘IDJK’ flour mill of the plaintiff in the month of April, 1997 and subsequently let out the same to the 4th defendant without having any manner of right over the same. On 4.7.1999 the 1st defendant executed an agreement in favour of the plaintiff stating that the plaint schedule ABCD marked property is the self acquired property of the plaintiff, licence for the flour mill obtained in his name and he and his heirs have no manner of right over the IDJK flour mill.
On mutual understanding the 1st defendant has also agreed to pay
Rs.500/- per month from 2000 year for use and occupation of the said flour mill.
4. There is a clear invention and infringement upon the legal right of the plaintiff over the plaint schedule property except AEIG marked portion of the property. The entire ABCD property as it is self acquired property and the defendants 3 and 4 at the instigation of defendants 1 & 2 litigating the plaintiff and dragging the plaintiff to court of law without any manner of right. Hence, the Plaintiff has filed suit for declaration of right and title. Hence, the Plaintiff prays to pass a decree as prayed for.
5.On the other hand, the 2nd defendant filed his written statement denying all the allegations made in the plaint and contending inter-alia that the plaint schedule ABCD property is not exclusive property of the plaintiff and the said property was purchased by his father Kamsali
Bheemaiah, being manager of joint family consisting of plaintiff and defendants 1 and 2 and he died as member of joint family on 27.6.1983. The joint family consisting of plaintiff, defendants 1 and 2 and said Bheemaiah are having abundant ancestral properties in
Gadivemula and Korapolu villages. All the properties have been enjoying by the plaintiff, defendants 1 and 2 and the said Bheemaiah without division by metes and bounds including the plaint schedule property. Therefore, the plaint schedule property has been purchased 4 by the plaintiff out of the nucleus of the joint family properties and the same was treated as joint family properties for common enjoyment and division. Hence, the plaint schedule property is not self acquired property of same and he made a false claim over the same. Since the plaintiff being powerful and having cunning nature is not coming forward for partition and separate possession of shares in all the joint family properties including the plaint schedule property. The 2nd defendant has issued legal notice dt.20.12.2003 demanding the plaintiff and others to come forward for amicable partition and separate possession of all joint family properties. Since the plaintiff and 1st defendant being employees having independent income and the 2nd defendant has not income and living by agriculture income, the plaint schedule property is kept in possession and enjoyment of 2nd defendant as mutually agreed by all the members of joint family for taking out livelihood of 2nd defendant on temporary basis. The 2nd defendant has been rented out rice mill and hotel to the tenants and has been collecting rents for his livelihood.
6.The 2nd defendant denied the construction of shops and gave to his sons K.R.Sreedhar Kumar and K.R.Rajasekar and they are in possession and enjoyment of the same. The said shops shown in AEGI also constructed with the income of the joint family during life time of their father Bheemaiah. Therefore neither the plaintiff nor his sons have any rights over the AEGI portion of property which is part and parcel of the joint family properties. The plaintiff has created the tax receipts with an intention to grab the plaint schedule property. The 2nd defendant also denied that the plaintiff has erected hut and leased out to others and that the 3rd defendant took the said hut from the plaintiff on lease. The 2nd defendant has leased out the said EFGH to the3rd defendant on the monthly rent of Rs.50/- from 5.2.1999 and at present the 3rd defendant is paying the rent at Rs.250/- from
December, 2002 and he has been in possession and enjoyment of the same. Therefore the plaintiff has no manner of right, title over the
EFGH portion since it is not exclusive property of the plaintiff and it is a part and parcel of the joint family property. The 2nd defendant also denied that the plaintiff has constructed a flour mill in the year 1976 5 after purchasing the motor and accessories, the 1st defendant has spent huge amount in installing the flour mill in IDJK portion for the benefit and livelihood of 2nd defendant as all the joint family members mutually agreed to kept the same in possession of the 2nd defendant.
7.The 2nd defendant also specifically denied that the plaintiff issued notice dt.25.6.2003 demanding the 1st defendant to pay Rs.500/- per month from 1.1.2002 together with interest and also denied that the plaintiff has created the said agreement dt.4.7.1999 said to be executed by the 1st defendant in favour of the plaintiff. The plaint schedule property is not at all exclusive property of plaintiff and that the schedule property is kept in possession and enjoyment of 2nd defendant for his livelihood by all the members and the plaintiff is not entitled to seek any declaration of title in respect of schedule property.
The suit is bad for non-joinder of necessary parties, since the schedule property is part and parcel of the joint family properties and all the members should be joined the suit as parties. Hence, pray to dismiss the suit.
8.Based on the rival pleadings in the plaint and written statement, the following issues were settled for trial:-
Issues:-
1)Whether the Plaintiff is entitled for declaration of title over the entire ABCD property excluding AEIG portion as shown in the plaint plan?
2)Whether the plaintiff is entitled for recovery of possession of ABCD property as prayed for?
3) Whether the Plaintiff is entitled for future mesne profits as prayed for?
4)To what relief?
O.S.No.106/2004:
9.This suit for recovery of Rs.18,340/- being the arrears of lease amount with interest at 12% p.a., and costs of the suit.
10.The brief averments of the plaint are that the plaintiff is the owner of the plaint schedule property and having purchase the same under registered sale deed dt.15.9.1976 from Kondaiah. The 6 defendant is tenant of the plaintiff in respect of schedule property on 1.4.2000 has taken the schedule property for a monthly rent of
Rs.500/-, the defendant has paid rent amount for one year and subsequently committed default in paying the amount. The defendant has filed suit in O.S.No.290/2003 against the plaintiff for permanent injunction restraining the plaintiff and his brother from interfering with the possession and enjoyment and evict them except through process of court. The aforesaid suit as the defendant was filed by suppressing truth and suggesting all falsehood that to creating tenancy in favour of brother of plaintiff in collusion. The said suit is being contested and still pending for trial. The plaintiff also filed separate suit to direct the defendant to deliver the vacant possession of the suit schedule hut to the plaintiff immediately and for other ancillary reliefs. Therefore, the plaintiff is constrained to file the suit for recovery of arrears of rent due from the defendant with effect from 1.4.2001 till 1.12.2003.
Hence, the suit.
11.On the other hand, the defendant filed his written statement denying all the allegations made in the plaint and contending that the plaint schedule property belongs to R.K.Jayaramaiah, son of
Bheemaiah, brother of plaintiff and the said Jayaramaiah has been in possession and enjoyment of the same and the defendant took the schedule property on monthly rent of Rs.50/- on 5.2.1999 from him.
In the plaint schedule property, the defendant is running a tea stall.
The defendant denied that he has taken the schedule property on a monthly rent of Rs.500/- from 1.4.2000 and the defendant denied the issue of legal notice to him and that he never took the schedule property on lease from the defendant, the payment of lease amount to the plaintiff does not arise and he has no right to collect amount from the defendant. Since the plaintiff threatens the defendant do disposes from the plaint schedule property highhandedly, the defendant has filed suit in O.S.No.290/2003 against the plaintiff and one Jaya
Ramaiah for permanent injunction as prayed for by him. The plaintiff’s suit is not maintainable in law and the claim of the plaintiff is not in time and the defendant is not at all tenant of plaintiff and there is no relationship of landlord and tenant between the plaintiff and the defendant prays to dismiss the suit.
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12.Based on the rival pleadings in the plaint and written statement, the following issues were settled for trial:-
Issues:-
1)Whether the Plaintiff is entitled for recovery of amount?
2)Whether the suit is barred by limitation?
3) Whether the suit is bad for non-joinder of necessary party?
4) Whether there is relationship of land lord and tenant between plaintiff and defendant?
5)To what relief?
13.The counsel for plaintiff in O.S.No.921/2003 has filed a petition in I.A.No.1475/2007 pray to club the suit in O.S.No.106/2004 with
O.S.No.921/2003 and record common evidence presented in
O.S.No.921/2003. Since O.S.No.106/2004 has been clubbed with
O.S.No.921/2003 for common enquiry and the common evidence for
both the suits have been recorded in O.S.No.921/2003.
14.On behalf of the Plaintiff, P.Ws 1 to 7 are examined and got marked Exs.A.1 to A.25. Ex.A1 is the plaint plan, Ex.A2 is the registered sale deed executed sale deed dt.15.9.1976, Ex.A3 is the statement of P.Kondaiah, Ex.A4 is the house tax receipt, Ex.A5 is the another tax receipt, Ex.A6 is the test certificate, Ex.A7 is the office copy of registered notice, Ex.A8 is the postal acknowledgment, Ex.A9 is the reply notice dt.7.1.2003, Ex.A10 is the notice, Ex.A11 is the reply notice, Ex.A12 is the copy of caveat in O.P.No.42/2003, Ex.A13 is the copy of caveat petition in O.P.No.73/2003, Ex.A14 is the served copy of plaint in O.S.No.290/2003 on the file of Prl.Junior Civil Judge’s
Court, Nandyal, Ex.A15 is the served copy of injunction petition in
I.A.No.867/2003 in O.S.No.290/2003, Ex.A16 is the letter addressed to the Secretary to the Govt. dt.18.6.1990, Ex.A17 is the certified copy of unregistered partition deed, Ex.A18 is the letter addressed by
Electricity Department, Ex.A19 is the proceedings of
Rc.No.695/MPHEO/05 dt.20.5.2005, Ex.A20 is the sale deed
dt.28.1.1995, Ex.A21 is the registration copy of sale deed dt.4.5.1995,
Ex.A22 is the registered sale deed dt.26.9.1980, Ex.A23 is the unregistered agreement of sale dt.23.10.1988, Ex.A24 is the 8 unregistered agreement of sale dt.20.7.1979 and Ex.A25 is the registered sale deed dt.20.6.2005 (Exs.A18 to A25 are certified copies).
15.On behalf of the Defendants, DW.1 to DW.3 were examined and marked Exs.B1 to B51. Ex.B1 is the death certificate of R.Bheemaiah dt.27.6.1993, Ex.B2 is the registration copy of sale deed dt.15.9.1976,
Ex.B3 is the registration copy of sale deed dt.26.9.1980, Ex.B4 is the registered sale deed dt.1.9.1982, Ex.B5 is the registration copy of sale deed dt.1.8.1988, Ex.B6 is the office copy of notice dt.20.12.2003,
Ex.B7 is reply notice dt.9.1.2004, Exs.B8 & B9 are the postal acknowledgments, Ex.B10 is the invitation card, Ex.B11 is the certificate issued by Village Revenue Officer on 27.6.2007, Exs.B12 to
B25 are the electricity bills, Ex.B26 is the receipt dt.15.3.1993,
Exs.B27 to B31 are the land revenue receipts, Ex.B32 is the water tax receipt, Ex.B33 is the tap fee receipt, Exs.B34 to B40 are the house tax receipts, Exs.B41 to B48 are the receipts pay for factory licence,
Ex.B49 is the proceedings of DM&HO dt.1.5.1976, Ex.B50 is the plan showing the proposed installation of 10 HP motor, Ex.B51 is the letter addressed by the Inspector of Factories to the Sarpanch, Gadivemula on 6.8.1976.
16.Heard both sides. Both the counsel filed their written arguments.
17.Issues 1 and 2 in O.S.No.921/2003 :-
1)Whether the Plaintiff is entitled for declaration of title over the entire ABCD property excluding AEIG portion as shown in the plaint plan?
2)Whether the plaintiff is entitled for recovery of possession of ABCD property as prayed for?
Since these issues are interlinked they are answered together.
The contention of the Plaintiff is that the plaint schedule ABCD property is his exclusive property purchased by him under registered sale deed dt.15.9.1976 from Kondaiah for a consideration of
Rs.1,300/- and he has constructed two shops in AEGI and constructed flour mill in IDJK of plaint plan in the year 1976 and he let out the
EFGH portion of plaint plan to 3rd defendant on 1.4.2000 and therefore 9 the said ABCD property is his exclusive property having right and title over the same by virtue of registered sale deed dt.15.9.1976.
18. On the other hand, the 2nd defendant is contending that the plaint schedule ABCD property is not exclusive property of the plaintiff and the said property was purchased by the father of plaintiff and defendants 1 and 2 by name Bheemaiah, the shops and flour mill were constructed by the said Bheemaiah out of the income of joint family and the flour mill constructed in IDJK portion of plaint plan is kept in possession and enjoyment of the defendant for his livelihood by all the members of joint family including the plaintiff herein. Therefore, the plaint schedule property has been in joint possession and enjoyment of all the joint family members and the said property is not at all in exclusive possession of the plaintiff.
19.To prove his exclusive possession, the plaintiff has filed Ex.A2 registered sale deed dt.15.9.1976, Ex.A4 & A5 house tax receipts,
Ex.A6 Hindustan Brown Bovary Limited test certificate, Exs.A18 letter addressed by the Electricity Department, Nandyal & A19 proceedings dt.20.5.2005 of D.M.&H.O., Kurnool. Except the said documents, the plaintiff has not filed any record to show that the plaint schedule property has been in his exclusive possession and enjoyment.
20.On the other hand, the 2nd defendant contended that the flour mill was constructed by said Bheemaiah after purchasing the said item of plaint schedule property under registered sale deed dt.15.9.1976 and the said item has been in joint possession and enjoyment of the plaintiff and defendants 1 and 2. The 2nd defendant has filed Exs.B12 to B25 electricity bills in the name of R.Lakshminarayana (D1) for service No.69 of flour mill, Ex.B26 receipt for electricity bill, Exs.B27 to
B31 land revenue receipts in the name of Jayaramaiah (2nd defendant) pertaining to flour mill, Exs.B32 & B33 are water tax receipts in the name of Jayaramaiah (D2), Exs.B34 to B40 house tax receipts in the name of Jayaramaiah (D2) for the house bearing No.1-33, Exs.B41 to
B48 factory licence fee receipts in the name of 2nd defendant, Ex.49 proceedings of DMHO dt.4.5.1976 in respect of flour mill in the name of Lakshmi Narayana (D1), Ex.B50 plan showing proposed installation of flour mill in the name of 1st defendant and Ex.B51 letter addressed 10 by Inspector of factories to Sarpanch, Gadivemula in the name of 1st defendant.
21.The counsel for 2nd defendant also relied on a decision reported in 2008(3) ALD 657 (DB) in a case between Kasaram Jayamma and another vs. Jajala Lakshmamma and others wherein it was held that “the burden of proving the property to be joint family
property always lies on the person who so asserts. However,
once he proves that the family possessed sufficient nucleus
with the aid of which the suit properties could be acquired,
then a presumption has to be drawn that the properties are
joint and consequently, the burden of proof shifts to the person
claiming them to be self-acquired.”
22.Further, he relied on a decision reported in 2006(6) ALD 103
in a case between Gunturu Venkata Rao vs. Gunturu
Venkateswarlu (died)by LRs and others, wherein it was held that
“Mere joint residene does not give rise to presumption that
properties are joint family properties and merely because all
the members of the joint family reside separately it cannot also
be presumed that the properties are not joint family properties.
If there is any nucleus of the joint family properties the burden
lies on the plaintiff to prove that the said properties are not
joint family properties but they are self acqauired properties.”
23.Further, the counsel for 2nd defendant also relied on another decision reported in 2005(4) ALD 342 in a case between Pulimi
Bapa Reddy vs. Pulimi Dasaradharama Reddy (died) by LRs, wherein it was held that “where a co-parcener asserting the
jointness of the proeprty, proves to the satisfaction the court,
that there existed sufficient nucleus for the joint family to
acquire properties, the burden shifts to the one, who pleads
that any item of properties, is his self-acquisition.”
24.On perusal of the citations submitted by the counsel for 2nd defendant, it is learnt that the plaint schedule property is in joint possession and enjoyment of the plaintiff and defendants 1 & 2.
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25.On perusal of above documents, it is learnt that the plaint schedule property wherein flour mill is established has been in joint possession and enjoyment of the plaintiff and defendants 1 and 2 and the plaintiff never in exclusive possession and enjoyment of the same ever since from the date of registered sale deed dt.15.9.1976. On perusal of evidence of PW.1, he admitted that he has not filed any record to show that he has constructed two rooms and flour mill and the licence of flour mill is in the name of R.Lakshmi Narayana (D1) and he got it transferred during the year 2005 after filing of the suit.
Therefore, the plaint schedule property has been in joint possession and enjoyment of the plaintiff, 1st defendant and 2nd defendant. The plaintiff has not filed any record to show that the plaint schedule property is in his exclusive possession.
26.The counsel for plaintiff relied on a decision reported in (i) AIR 1945 Calcutta 458 (DB) in a case between Jithendra Nath Sur Vs.
Amarendra Nath Sur, wherein it was held that “where the sale certificate stands in the name of “A”, the court is bound to presume that he is the real owner of the property and the burden lies upon the party alleging the contra to rebut the presumption and show that the apparent state of affairs is not the real state”.
(ii) Another decision reported in AIR 1956 AP 255 in a case between Mallapudi Narasimha Murthy vs. Mullapudu Nagabhushanam, wherein it was held that “unless it is shown that there was a substantial nucleus of joint family property from the income of which, after meeting the family expenses, the property subsequently acquired could have been purchased, it could not be assumed that the subsequent acquisition was joint family property. If property is acquired by a member of a joint Hindu family the onus of proving that the acquisition is for the benefit of the family, is upon person setting up the plea.”
(iii) Another decision reported in AIR 1958 AP 147 (DB) in a case between Yendapalli Venkata Raju (died) & another vs. Yendapalli
Yedukondalu @ Venkateswarlu & others, wherein it was held that “if it is established that the family owned joint property which might have 12 reasonably formed the nucleus wherefrom the property in dispute could have been acquired, there is a shifting of the burden to the parties setting up exclusive title to the properties on the ground of acquisition as a result of his own exertions and without any help from the joint family property.”
27.On perusal of citations submitted by the counsel for plaintiff, it is learnt that since the plaint schedule properties could not be proved that they are self acquired properties of plaintiff. As such the citations submitted by him do not suit to the facts and circumstances of the case.
28.Since the plaintiff has filed the suit for declaration of title in respect of plaint schedule property, the burden heavily lies on him to prove that the plaint schedule property is his exclusive property and the same was purchased by him from out of his own income and he has been in exclusive possession and enjoyment of the same without anybodies interruption. But in the instant case, the plaintiff has totally failed to establish that the plaint schedule property is his exclusive property and he has been in exclusive possession and enjoyment of the same. Therefore, the plaintiff has not discharged his burden with cogent documentary evidence. PW.2 to PW.7 did not support the case of the plaintiff with regard to exclusive possession and enjoyment of the plaint schedule property. Therefore the plaintiff is not entitled to recovery of possession of plaint schedule property from the 2nd defendant as the plaint schedule property is not exclusive property of plaintiff and the same is in joint possession and enjoyment of the plaintiff and defendants 1 and 2.
29.In the light of the above discussion and facts and circumstances of the case, the 2nd defendant is able to prove that the plaint schedule property is in joint possession and enjoyment of the plaintiff and defendants 1 and 2 and the same is not self acquired property of plaintiff. Therefore, the 2nddefendant has established with documentary evidence that the plaint schedule property has been in joint possession and enjoyment of plaintiff and defendants No.1 & 2.
Accordingly, these issues are answered against the plaintiff.
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30. Issue No.3 in O.S.No.921/2003 :
Whether the plaintiff is entitled for future mesne profits as prayed for?
Since the plaintiff failed to prove his right, title, possession and enjoyment over the plaint schedule property, he is not entitled to any mesne profits. On the other hand, the 2nd defendant proved that the plaint schedule property is in joint possession and enjoyment of the plaintiff and defendants 1 & 2 and the same is not the exclusive property of the plaintiff and moreover the plaint schedule property is kept in possession and enjoyment of the 2nd defendant with all the consent of family members of his livelihood. Accordingly, this issue is answered against the plaintiff.
31. Issues No.1 & 4 in O.S.No.106/2004 :
1) Whether the plaintiff is entitled for recovery of amount?
4) Whether there is relationship of landlord and tenant between plaintiff and defendant?
The contention of the plaintiff is that he leased out the plaint schedule property to the defendant on monthly rent of Rs.500/- on 1.4.2000 and he has paid the rent amount for a period of one year and he subsequently failed to pay the same. The plaintiff has also issued legal notice demanding the defendant to pay the arrears of lease amount. Since the defendant did not comply the terms of lease, the plaintiff has filed the suit for recovery of arrears of lease amount.
32. On the other hand, the defendant filed his written statement contending that the plaintiff has never leased out the plaint schedule property to him and has taken the schedule property on lease from one R.K.Jayaramaiah on monthly rent of Rs.50/- from 5.2.1999 and has been running a tea stall in the same and from December, 2002 the defendant has paying Rs.250/- per month and has been regularly paying the lease amount to him and is not liable to pay any lease amount to the plaintiff. The defendant denied the issue of the legal notice by the plaintiff to him. Since the plaintiff threatens the defendant for eviction of schedule property, the defendant has filed 14
O.S.No.290/2003 for permanent injunction and the said suit was
ended in his favour. Therefore, the defendant is not liable to pay lease amount to the plaintiff.
33. On perusal it is learnt that the plaintiff totally failed to establish that the plaint schedule property is exclusive property of the plaintiff and on the other hand, the 2nd defendant in O.S.No.921/2003 which is clubbed with this suit is able to prove that the plaint schedule property is a part of the joint family property and the same is in possession and enjoyment of family members and the same is not exclusive property of the plaintiff. Therefore, there is no relationship of landlord and tenant between the plaintiff and the defendant and there is no record to show that the plaintiff has leased out the plaint schedule property to the defendant on 1.4.2000 and he has paid the lease amount for one year. The plaintiff during cross-examination has clearly admitted that there is no record to show that he has leased out the same to the defendant and payment of one year lease amount to him. Hence, the contention of the plaintiff is not tenable and there is no proof of landlord and tenancy with regard to the plaint schedule property between the plaintiff and the defendant.
34.Hence, in the light of the above facts and circumstances, the burden is on the plaintiff to prove that the plaint schedule property is exclusive property and he has been in possession and enjoyment of the same exclusively and he has to establish that he has leased out the same to the defendant. But the plaintiff has not discharged his burden with cogent documentary evidence to prove his right and title over the plaint schedule property and on the other hand, the defendant in O.S.No.921/2003 has proved that the plaint schedule property is in joint possession and enjoyment of the plaintiff and defendants 1 and 2 and the same is not exclusive property of the plaintiff. Hence, the plaintiff is not entitled to recovery of amount and there is no relationship of landlord and tenant between the plaintiff and defendant. Accordingly, these issues are answered against the plaintiff.
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35.Issues No.2 & 3 in O.S.No.106/2004 :
2) Whether the suit is barred by limitation?
3)Whether the suit is bad for non-joinder of necessary party?
The defendant contended in his written statement that that the suit is not in time and it is barred by limitation. Further the defendant contended in his written statement that the plaintiff is fully aware through the reply notice issued by the defendant that one Jayaramaiah has leased out the schedule property to the defendant and not the plaintiff, therefore the said Jayaramaiah is necessary and property party to the suit and without him, the matter in dispute cannot be adjudicated judiciously. Further the defendant contended in his written statement that the suit is not in time and it is barred by limitation. But the defendant in O.S.No.921/2003 proved that the plaint schedule property is the joint family property and the same is in joint possession and enjoyment of the plaintiff and defendants in
O.S.No.921/2003 and also the same is not exclusive property of the
plaintiff herein. Hence, there is a force in the contention of the defendant. Accordingly, the issues are answered against the plaintiff.
36.ISSUE No.4 in O.S.No.921/2003 : To what relief?
In the result, the suit is dismissed. As both parties are closely related, that each party to bear their own costs.
37.ISSUE No.5 in O.S.No.106/2004 : To what relief?
In the result, the suit is dismissed with costs.
Typed to my dictation, corrected, signed and pronounced by me in the open court, this the 17th day of March, 2015.
II Addl. Senior Civil Judge, Nandyal. F/A/C I Addl. Senior Civil Judge, Nandyal.
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Appendix of Evidence
(Witnesses examined)
For the Plaintiff:-Defendants:
P.W.1: R.Lakshmi NarasaiahDW.1: R.Jayaramaiah
P.W.2: Pinjari Nadipi Jamal SahebDW.2: D. Sanjeeva Reddy
P.W.3: Gandla Sivaramaiah @ Sivanna DW.3: V.Bali Reddy
P.W.4: Raghuprolu Saraswathamma
P.W.5: Vadde Subbanna
P.W.6: Doni Venkata Subbaiah
P.W.7: Belum Venkata Subba Reddy
Exhibits marked
For the Plaintiff:-
Ex.A1 is the plaint plan.
Ex.A2 is the registered sale deed executed sale deed dt.15.9.1976.
Ex.A3 is the statement of P.Kondaiah.
Ex.A4 is the house tax receipt dt.20.3.2003.
Ex.A5 is the another tax receipt dt.20.3.2003.
Ex.A6 is the Hindustan brown bovari limited test certificate.
Ex.A7 is the office copy of registered notice dt.25.6.2003.
Ex.A8 is the postal acknowledgment.
Ex.A9 is the reply notice dt.7.1.2003.
Ex.A10 is the notice dt.12.4.2003.
Ex.A11 is the reply notice dt.27.4.2003.
Ex.A12 is the copy of caveat in O.P.No.42/2003.
Ex.A13 is the copy of caveat petition in O.P.No.73/2003.
Ex.A14 is the served copy of plaint in O.S.No.290/2003 on the file of
Prl.Junior Civil Judge’s Court, Nandyal.
Ex.A15 is the served copy of injunction petition in I.A.No.867/2003 in
O.S.No.290/2003.
Ex.A16 is the letter addressed to the Secretary to the Govt.
dt.18.6.1990.
Ex.A17 is the certified copy of unregistered partition deed dt.15.6.1990.
Ex.A18 is the letter addressed by Electricity Department.
Ex.A19 is the proceedings of Rc.No.695/MPHEO/05 dt.20.5.2005.
Ex.A20 is the sale deed dt.28.1.1995.
Ex.A21 is the registration copy of sale deed dt.4.5.1995.
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Ex.A22 is the registered sale deed dt.26.9.1980.
Ex.A23 is the unregistered agreement of sale dt.23.10.1988.
Ex.A24 is the unregistered agreement of sale dt.20.7.1979.
Ex.A25 is the registered sale deed dt.20.6.2005 (Exs.A18 to A25 are certified copies).
For the Defendants:-
Ex.B1 is the death certificate of R.Bheemaiah dt.27.6.1993.
Ex.B2 is the registration copy of sale deed dt.15.9.1976.
Ex.B3 is the registration copy of sale deed dt.26.9.1980.
Ex.B4 is the registered sale deed dt.1.9.1982.
Ex.B5 is the registration copy of sale deed dt.1.8.1988.
Ex.B6 is the office copy of notice dt.20.12.2003.
Ex.B7 is reply notice dt.9.1.2004.
Exs.B8 & B9 are the postal acknowledgments.
Ex.B10 is the invitation card.
Ex.B11 is the certificate issued by Village Revenue Officer on 27.6.2007.
Exs.B12 to B25 are the electricity bills.
Ex.B26 is the receipt dt.15.3.1993.
Exs.B27 to B31 are the land revenue receipts.
Ex.B32 is the water tax receipt.
Ex.B33 is the tap fee receipt.
Exs.B34 to B40 are the house tax receipts.
Exs.B41 to B48 are the receipts pay for factory licence.
Ex.B49 is the proceedings of DM&HO dt.1.5.1976.
Ex.B50 is the plan showing the proposed installation of 10 HP motor.
Ex.B51 is the letter addressed by the Inspector of Factories to the Sarpanch, Gadivemula on 6.8.1976.
II A.S.C.J, Ndl. F/A/C I A.S.C.J, Ndl.
IN THE COURT OF THE I-ADDL. SENIOR CIVIL JUDGE, NANDYAL.
(Fast Track Court) Present:- Sri T.M.C.Vijaya Kumar, II Addl. Senior Civil Judge, Nandyal. F/A/C I Addl. Senior Civil Judge, Nandyal.
Tuesday, the seventeenth Day of March, 2015.
Original Suit No.921/2003 :
Between:-
Raghuprolu Kamsali Lakshmi Narasaiah, aged about 56 years, s/o Bheemaiah, Hindu, working as Mandal Revenue Inspector in the office of Mandal Revenue Officer at Kurnool, resident of Door No.40-354-30, Nandyal Gate, Kurnool. …. Plaintiff
And
1. Raghuprolu Kamsali Lakshmi Narayana, aged about 48 years, s/o Bheemaiah, Hindu, r/o Gadivemula village, post and mandal, Kurnool district, now working as clerk in APSRTC Depot, Rajampeta, Cuddapah district.
2. Raghuprolu Kamsali Jaya Ramaiah, aged about 46 years, s/o Bhyeemaiah, Hindu, agriculturist, r/o Gadivemula village post and mandal, Kurnool district.
3. Sangamsetty Nagappa, aged about 60 years, s/o Pedda Veerappa, Hindu, Tea and Tiffin business, r/o near RTC bus stand, Gadivemula village, post and mandal, Kurnool district.
4. Dasi Nagi Reddy, aged about 45 years, s/o Subba Reddy, Hindu, agriculturist, r/o Gadivemula village post and mandal, Kurnool district.
…. Defendants -oo0oo-
This suit for declaration of Plaintiff’s title over the entire ABCD property excluding ‘AEIG’ portion as shown in the plaint plan and plaint schedule and for recovery of possession of ‘ABCD’ property excluding ‘AEIG’ portion of plaint plan along with flour mill, 10 HP motor and its all accessories along with two shutters in ‘IDJK’ as shown in the plaint plan and plaint schedule and future mesne profits and also costs of the suit.
Plaint presented on 6.11.2003 and filed on 18.12.2003. J.V. of
Rs.37,500/- (3/4th of the market value of Rs.50,000/-) and J.V. of
Rs.13,500/- (3/4th of the market value of Rs.18,000/-) and a Court
Fee of Rs.2,026/- & Rs.996/- (Total Rs.3,022/-) is paid under Section 24 (a) of A.P.C.F & S.V. Act, 1956.
The cause of action for this suit arose at Gadivemula village since the plaint schedule property situated, within the jurisdiction of this court.
2
This suit coming on 18.2.2015 before me for final hearing in the presence of Sri P.V.Subba Reddy, Advocate for the Plaintiff and of Sri
T.Siva Prasad, Sri K.N.B.Narasinga Rao, Advocates for defendant No.2, defendants No.1, 3 & 4 remained set exparte and after hearing on both sides, and after having stood over for consideration till today, this court doth order and passed the decree as follows:-
1) that the suit be and the same is hereby dismissed.
2) that each party do bear their own costs.
Given under my hand and seal of the court, this the 17th day of
March, 2015.
II Addl. Senior Civil Judge, Nandyal. FAC I-Addl.Senior Civil Judge, Nandyal.
Schedule
Property situate in Kurnool Registration District, Orvakal Sub-
Registration District, within the village limits of Gadivemula and the particulars of the same are stated as hereunder:
I (a) Particulars of ABCD open site:
Survey No.307/2 Ac.0.06 ¼ cents.
Measurements :
East : Kallam of Perambuduru Ramagovindu;
West: Rastha;
North: Public road;
South: Site of Kondaiah;
Measurements : East-west : 60 feet;
North-south: 49 feet;
(b) Plaint plan marked ‘EFGH’ hut with iron sheet in the possession of 3rd defendant on behalf of 1st defendant.
Boundaries:
East : Site of plaintiff;
West: Shops belonging to plaintiff;
North: Road;
South: IDJK marked site with flour mill therein;
Measurements : East-west : 8 feet;
North-south: 25 feet; 3 (C) Plaint plan marked ‘IDJK’ marked portion is in possession of 4th defendant on behalf of defendants 1 and 2. Boundaries:
East : ‘FHJKCB’ site of plaintiff;
West: Rastha;
North: Shop rooms of plaintiff i.e., ‘AEIG’ marked portion of plaint plan;
South: Site of Kondaiah;
Measurements : East-west : 36 feet;
North-south: 25 feet;
(d) Plaint plan marked ‘FHJKCB’ plaint plan marked remaining site is in possession and enjoyment of 2nd defendant. Boundaries:
East : Site of Perambuduru Ramagovindu;
West: ‘EFGH’ hut of plaintiff;
North: Road;
South: Site of Kondaiah;
Market value of the ‘ABCD’ property excluding ‘AEIG’ portion as per the valuation certificate issued by the Sub-Registrar, Orvakal dated 12.8.2003 is Rs.50,000/- (Value corrected to the round figure).
II. In ‘IDJK’ portion of plaint plan there are flour mill, 10 HP electric motor, its all accessories along with two shutters.
The above properties are valued by the plaintiff notionally at Rs.18,000/-.
II-ASCJ,Ndl.
FAC I-ASCJ,Ndl.
Memo of Costs
For PlaintiffFor Defendant No.2
Stamp on VakalatRs. 2=00 Rs. 2=00 Stamp on PlaintRs. 3022=00 Stamp on ProcessRs. 260=00 Advocate Commis- sioner’s FeeRs. 750=00 Advocate’s FeeRs. 5100=00 Rs. 5100=00 Jr.Advocate feeRs. 1700=00 Writing ChargesRs. 10=00 Typing chargesRs. 50=00
---------------- ---------------
Total :Rs.10,894=00 Rs. 5102=00
---------------- ---------------
II A.S.C.J, Ndl. FAC I-ASCJ,Ndl.
Encl: Plaint plan (Ex.A1)
IN THE COURT OF THE I-ADDL. SENIOR CIVIL JUDGE, NANDYAL.
(Fast Track Court) Present:- Sri T.M.C.Vijaya Kumar, II Addl. Senior Civil Judge, Nandyal. F/A/C I Addl. Senior Civil Judge, Nandyal.
Tuesday, the seventeenth Day of March, 2015.
Original Suit No.106/2004
Between:-
Raghupolu Lakshmi Narasaiah, s/o Bheemaiah, aged about 52 years, Hindu, employee at Kurnool, resident of Kurnool, Kurnool district. …. Plaintiff
And
Sangamsetty Nagappa, s/o Pedda Veerappa, Aged about 54 years, Hindu, Tea and Tiffin hotel, Near RTC bus-stand, Gadivemula village & Mandalam, Kurnool district. …. Defendant -oo0oo-
This suit for recovery of Rs.18,340/- being the arrears of lease amount with interest at 12% p.a., and costs of the suit. The brief averments of the plaint are that the plaintiff is the owner of the plaint schedule property and having purchase the same under registered sale deed dt.15.9.1976 from Kondaiah. The defendant is tenant of the plaintiff in respect of schedule property on 1.4.2000 has taken the schedule property for a monthly rent of Rs.500/-, the defendant has paid rent amount for one year and subsequently committed default in paying the amount. The defendant has filed suit in O.S.No.290/2003 against the plaintiff for permanent injunction restraining the plaintiff and his brother from interfering with the possession and enjoyment and evict them except through process of court. The aforesaid suit as the defendant was filed by suppressing truth and suggesting all falsehood that to creating tenancy in favour of brother of plaintiff in collusion. The said suit is being contested and still pending for trial.
The plaintiff also filed separate suit to direct the defendant to deliver the vacant possession of the suit schedule hut to the plaintiff immediately and for other ancillary reliefs. Therefore, the plaintiff is constrained to file the suit for recovery of arrears of rent due from the defendant with effect from 1.4.2001 till 1.12.2003. Hence, the suit.
Plaint presented on 2.12.2003 and filed on 29.12.2003. J.V. of
Rs.18,340/- and a Court Fee of Rs.1,296/- is paid under Section 20 of
A.P.C.F & S.V. Act, 1956.
2
The cause of action for this suit arose on 1.4.2000 at
Gadivemula village since the plaint schedule property situated, when the defendant took the plaint schedule hut as tenant of the plaintiff, within the jurisdiction of this court.
This suit coming on 18.2.2015 before me for final hearing in the presence of Sri P.V.Subba Reddy, Advocate for the Plaintiff and of and of Sri R.Nataraj, Advocate for the Defendant and after hearing on both sides, and after having stood over for consideration till today, this court doth order and passed the decree as follows:-
1) that the suit be and the same is hereby dismissed.
2) that the plaintiff do pay to the defendant a sum of Rs.1583/- being the costs of the suit.
Given under my hand and seal of the court, this the 17th day of
March, 2015.
II Addl. Senior Civil Judge, Nandyal. FAC I-Addl.Senior Civil Judge, Nandyal.
Memo of Costs
For Plaintiff For Defendant
Stamp on VakalatRs. 2=00 Rs. 2=00 Stamp on PlaintRs. 1296=00 Stamp on ProcessRs. 65=00 Advocate’s FeeRs. 1581=00 Rs. 1581=00 Jr.Advocate feeRs. -- Writing ChargesRs. 10=00 Typing chargesRs. 50=00
---------------- ---------------
Total :Rs. 3,004=00 Rs. 1583=00
---------------- ---------------
II A.S.C.J, Ndl. FAC I-ASCJ,Ndl.
S c h e d u l e
Hut with iron sheets (Non-residential) situate in Kurnool District,
Orvakal Sub-Registration District and within grama panchayat limits of
Gadivemula and the details are furnished as hereunder:
S.No.307/2, 6¼ cents pyki 1 cent.
3
Hut with boundaries:
East : Open site of plaintiff and others;
West: Shops belonging to plaintiff;
North: Public road;
South: Floor mill room of plaintiff and site of Kondaiah;
II-ASCJ,Ndl.
FAC I-ASCJ,Ndl.
1
IN THE COURT OF THE I-ADDL. SENIOR CIVIL JUDGE, (FTC)
NANDYAL.
Present: Sri T.M.C.Vijaya Kumar, II Addl. Senior Civil Judge, Nandyal. FAC I-Addl.Senior Civil Judge, (FTC) Nandyal
Thursday, the 11th day of December, 2014.
Original Suit No.228/2006
Between:-
1. Pedda Kotamma, aged about 50 years, w/o Ankanna
2. Tota Kotamma, aged about 40 years, w/o T.P.Narayana
3. T.Saraswathi, aged about years, w/o Venkateswarlu
4. Setteru Naramma, aged about 85 years, w/o Obulapathi (died no LRs except plaintiffs 1 to 3. All are Hindu, R/o M.Thimmapuram village, Mahanandi mandal.
…..Plaintiffs
And
1. S.Pedda Pullaiah, aged about 40 years, s/o Venkatapati
2. S.Chinna Pullaiah, aged about 38 years, s/o Venkatapati
Both are Hindu, agriculturist, r/o M.Thimmapuram village, Mahanandi mandal.
3. Pedda Pullamma, aged about 40 years, Hindu, House wife, R/oDeebaguntla village, Gospadu mandal, Kurnool district.
4. Chinna Pullamma, aged about 38 years, Hindu, House wife, R/o Rythunagaram village, Nandyal mandal, Kurnool district.
5. Bala Pullamma, aged about 35 years, Hindu, agriculturist, R/o Ramapuram village, Bandi Atmakur mandal, Kurnool district. (Defendants 3 to 5 are added as per orders in I.A.
No.126/2009 dt.12.4.2010)….. Defendants
-oo0oo- , This is a suit filed for partition and separate possession of plaintiffs’ 9/16th share and permanent injunction restraining the defendants either from trespassing into the plaint schedule property or from disturbing lawful possession and enjoyment of the plaintiffs over the suit schedule property and also costs of the suit. The brief averments of the amended plaint are that the plaint schedule properties are ancestral properties of plaintiffs and defendants and except the plaint schedule properties there are no other properties to the family of plaintiffs and defendants. Originally, the plaint schedule properties are belongs to the ancestors of Peddi Kotamma. She has no male issues and has only two daughters. She brought one Setteru Obulapathi as illatam son-in-law, who is also the husband of 4th plaintiff. The said Peddi Kotamma has given her two daughters by name Pedda Kotamma and Chinna Kotamma to her son-in-law Setteru Obulapathi. After brought Setteru Obulapathi as illatam son-in-law, he stayed in his in-laws house as illatam son-in-law. The said Obulapathi had children’s through his first wife Pedda Kotamma and his second wife has not blessed any children. Since the first wife of Setteru Obulapathi died, he married the sister of his first wife by name Chinna Kotamma who has no issues. So Setteru Obulapathi has got right, title and possession over the plaint schedule property. After the life time of 2 his two wives i.e., Pedda Kotamma and Chinna Kotamma, the said Obulapathi again married one Naramma, who is the 4th plaintiff in the suit. The said Naramma has blessed with three daughters i.e., plaintiffs 1 to 3 herein. The first plaintiff has no issues whereas the second plaintiff had two daughters and one son, likewise 3rd plaintiff has got one son and daughter.
The said Pedda Kotamma, who is a co-sister of 4th plaintiff, had blessed one son by name Venkatapathi and one daughter by name Kotamma. The said Venkatapati had blessed with three daughters i.e., defendants 3 to 5 and two sons by name Pedda Pullaiah and Chinna Pullaiah i.e., defendants 1 & 2. The three daughters of Venkatapati have got married long back even prior to amendment of Succession Act and hence they have not been added as parties earlier. The father of defendants Venkatapati was died about five years back and both the defendants are living under one roof as Hindu Joint family. Since the second wife of Setteru Obulapati died issueless and the remaining two wives of Setteru Obulapati i.e., grandmother of defendants, Pedda Kotamma and 4th plaintiff herein has got equal share in their husband’s property i.e., plaint schedule property. Thus, the plaintiffs have got joint 9/16th share in the plaint schedule property along with defendants. Likewise the defendants has got only 7/16th share jointly in the plaint schedule property along with plaintiffs. The defendants have no absolute right, title over the plaint schedule property as it is in joint possession and enjoyment of the plaintiffs. Whileso, ill-feelings started between the plaintiffs and defendants in their family matters and the plaintiffs felt that there is no safe and convenient for them to continue as co-owners along with the defendants, but the defendants postponing the issue of partition on some pretext or other. Hence, the plaintiffs constrained to file the suit for partition and separate possession of their share and also for permanent injunction. Hence, the suit.
Plaint presented on 25.4.2006 and filed on 6.11.2006. J.V of Rs.4,11,562-50 ps (3/4th value in total market value of Rs.5,48,750/-) and for permanent injunction is Rs.5,000/-, Total J.V. of Rs.4,16,562- 50ps and C.F of Rs.200/- is paid under section 34(2) of A.P.C.F. and Suits Valuation Act and CF of Rs.411/- is paid under section 26(C) of A.P.C.F. and Suits Valuation Act, 1956.
The cause of action for this suit arose in the month of October 2005 at Thimmapuram when ill-feelings started between the plaintiffs and defendants and defendants refused for amicable partition and separate possession of the plaintiffs share at Thimmapuram village, within the jurisdiction of this court.
This suit coming on 21.11.2014 before me for final hearing in the presence of Sri M.Sivasankar Reddy & Sri K.Gouri Sankar, Advocates for the Plaintiffs and of Sri V.Ramachandra Rao, Advocate for the Defendant No.1 to 5, and after hearing on both sides, and after having stood over for consideration till today, this court doth order and passed the decree as follows:- 3
1) that the suit be and the same is hereby dismissed;
2) that the Plaintiffs do pay to the Defendants a sum of Rs.32,642/- being costs of the suit.
Given under my hand and seal of the court, this the 11th day of December, 2014.
II-Addl. Senior Civil Judge, Nandyal. FAC I-Addl.Senior Civil Judge (FTC), Nandyal.
Memo of Costs
For the Plaintiffs For Defendants
Stamp on Vakalat Rs. 2=00 Rs. 2=00 Stamp on Plaint Rs. 611=00 Stamp on Process Rs. 130=00 Advocate’s Fee Rs. 5000=00 Rs.24450=00 (as claimed) (as claimed) Jr.Advocate fee Rs. -- Rs. 8180=00 Writing Charges Rs. -- Rs. 10=00 Typing Charges Rs. 50=00 Rs. --
------------------ --------------
Total : Rs. 5793=00 Rs.32642=00
------------------ --------------
II A.S.C.J, Ndl. FAC I-ASCJ,Ndl. S c h e d u l e
Landed property situated within the village limits of Thimmapuram of Mahanandi mandal having following particulars.
1. S.No.132/B1A extent 1.06 called Paturu chenu
2. S.No.132/BC extent 3.64 cents called Paturu Chenu.
Boundaries 1 & 2:
East : K.Nagaiah land West: P.Subbaiah land North: U.Pullaiah land South: K.Sanjeevarayudu and others land
3. S.No.142 extent 1.78 cents Called Cheruvu Krindi Chenu
Boundaries:
East : T.Subba Rao land West : G.Akkamma land North: Dastagiri land South: Rastha (items No.3 to 9 of the Thimmapuram village, item No.1 of the Bukkapuram village land and item No.1 and 2 house properties at Thimmapuram village properties are deleted from original plaint schedule as per orders in I.A.No.126/2009 dated 12.4.2010). (Schedule is amended as per orders in I.A.No.126/2009 dt.12.4.2010)
II A.S.C.J, Ndl. FAC I-ASCJ,Ndl.
4
IN THE COURT OF THE I-ADDL. SENIOR CIVIL JUDGE, (FTC)
NANDYAL.
Present: Sri T.M.C.Vijaya Kumar, II Addl. Senior Civil Judge, Nandyal. FAC I-Addl.Senior Civil Judge, (FTC) Nandyal
Thursday, the 11th day of December, 2014.
Original Suit No.228/2006
Between:-
1. Pedda Kotamma
2. Tota Kotamma
3. T.Saraswathi
4. Setteru Naramma (died no LRs except plaintiffs 1 to 3.
…..Plaintiffs
And
1. S.Pedda Pullaiah
2. S.Chinna Pullaiah
3. Pedda Pullamma
4. Chinna Pullamma
5. Bala Pullamma (Defendants 3 to 5 are added as per orders in I.A.
No.126/2009 dt.12.4.2010)….. Defendants
-oo0oo- , This suit coming on 21.11.2014 before me for final hearing in the presence of Sri M.Sivasankar Reddy & Sri K.Gouri Sankar,
Advocates for the Plaintiffs and of Sri V.Ramachandra Rao, Advocate for the Defendant No.1 to 5, and after hearing on both sides, and after having stood over for consideration till today, this court delivered the following:-
J U D G M E N T
This is a suit filed for partition and separate possession of plaintiffs’ 9/16th share and permanent injunction restraining the defendants either from trespassing into the plaint schedule property or 5 from disturbing lawful possession and enjoyment of the plaintiffs over the suit schedule property and also costs of the suit.
2.The brief averments of the amended plaint are that the plaint schedule properties are ancestral properties of plaintiffs and defendants and except the plaint schedule properties there are no other properties to the family of plaintiffs and defendants. Originally, the plaint schedule properties are belongs to the ancestors of Peddi
Kotamma. She has no male issues and has only two daughters. She brought one Setteru Obulapathi as illatam son-in-law, who is also the husband of 4th plaintiff. The said Peddi Kotamma has given her two daughters by name Pedda Kotamma and Chinna Kotamma to her son- in-law Setteru Obulapathi. After brought Setteru Obulapathi as illatam son-in-law, he stayed in his in-laws house as illatam son-in-law. The said Obulapathi had children’s through his first wife Pedda Kotamma and his second wife has not blessed any children. Since the first wife of
Setteru Obulapathi died, he married the sister of his first wife by name
Chinna Kotamma who has no issues. So Setteru Obulapathi has got right, title and possession over the plaint schedule property. After the life time of his two wives i.e., Pedda Kotamma and Chinna Kotamma, the said Obulapathi again married one Naramma, who is the 4th plaintiff in the suit. The said Naramma has blessed with three daughters i.e., plaintiffs 1 to 3 herein. The first plaintiff has no issues whereas the second plaintiff had two daughters and one son, likewise 3rd plaintiff has got one son and daughter.
3. The said Pedda Kotamma, who is a co-sister of 4th plaintiff, had blessed one son by name Venkatapathi and one daughter by name
Kotamma. The said Venkatapati had blessed with three daughters i.e., defendants 3 to 5 and two sons by name Pedda Pullaiah and Chinna
Pullaiah i.e., defendants 1 & 2. The three daughters of Venkatapati have got married long back even prior to amendment of Succession
Act and hence they have not been added as parties earlier. The father of defendants Venkatapati was died about five years back and both the defendants are living under one roof as Hindu Joint family. Since the second wife of Setteru Obulapati died issueless and the remaining two wives of Setteru Obulapati i.e., grandmother of defendants, Pedda
Kotamma and 4th plaintiff herein has got equal share in their husband’s 6 property i.e., plaint schedule property. Thus, the plaintiffs have got joint 9/16th share in the plaint schedule property along with defendants. Likewise the defendants has got only 7/16th share jointly in the plaint schedule property along with plaintiffs. The defendants have no absolute right, title over the plaint schedule property as it is in joint possession and enjoyment of the plaintiffs.
4.Whileso, ill-feelings started between the plaintiffs and defendants in their family matters and the plaintiffs felt that there is no safe and convenient for them to continue as co-owners along with the defendants, but the defendants postponing the issue of partition on some pretext or other. Hence, the plaintiffs constrained to file the suit for partition and separate possession of their share and also for permanent injunction. Hence, the suit.
5.The defendants No.1 & 2 filed their written statement denying the allegations made in the plaint. Peddi Kotamma had two daughters namely 1.Pedda Kotamma and 2. Chinna Kotamma. Setteri @ Settivari
Obulapathi married Pedda Kotamma and they blessed with Setteri @
Settivari Venkatapathi and Kotamma. After the death of Pedda
Kotamma the said Obulapathi married Chinna Kotamma and she died with no issues. After the death of Chinna Kotamma, Obulapathi married 4th plaintiff and they blessed with plaintiffs No.1 to 3. The said
Setteri @ Settivari Venkatapathi son of Obulapathi married one
Subbamma and they blessed with defendants.
6. Peddi Kotamma, the original owner of plaint schedule properties gifted the plaint schedule properties and other properties in favour of her grandson namely Setteri @ Settivari Venkatapathi under registered gift deed dt.26.5.1958, he accepted the same. After his death, the defendants have been in separate possession and enjoyment of their respective properties as allotted by their father.
The revenue authorities issued pattadar passbooks and title deeds to the defendants and they are in possession and enjoyment of the plaint schedule properties. The allegation that Setteri @ Settivari Obulapathi was adopted by Peddi Kotamma is false. He was son-in-law of Peddi
Kotamma. The said Setteri Obulapathi has no manner of right in the plaint schedule properties. Thota Pedda Narayana, husband of 2nd plaintiff is greedy of property and he abetted the plaintiffs to initiate proceedings against the defendants. In fact there are no ill-feelings in 7 between plaintiffs and defendants. There are no demands for partition and separate possession. The suit is liable to be dismissed as it is non- joinder of necessary parties. As the suit is frivolous and vexatious the plaintiffs are liable to pay compensatory costs. There is no cause of action to institute the suit. Therefore, the defendants prayed to dismiss the suit with compensatory costs.
7.The defendants No.1 & 2 also filed their additional written statement stating that Peddi Kotamma purchased item No.1 of plaint schedule property in Bukkapuram village from Basireddigari Venkata
Reddy and his two brothers for valid consideration of Rs.600/- under registered sale deed dt.31.5.1955. She has been in possession and enjoyment of the same. The said Peddi Kotamma gifted properties to
Setteri @ Settivari Venkatapathi under registered gift deed dt.26.5.1958. The said Setteri @ Settivari Venkatapathi gifted item
No.6 & 7 of plaint schedule properties situated in M.Thimmapuram village and item No.1 of Bukkapuram village to Settivari Pedda Pullaiah (D1) and his wife Ankamma under registered gift deed dt.9.7.1982.
They have been in possession and enjoyment of the same. Setteri
Obulapathi gifted item No.4 & 5 of plaint schedule properties and other property situated to Setteri @ Settivari Venkatapathi under registered gift deed dt.17.6.1981 and the said Venkatapathi has been in possession and enjoyment of the same. Then Karanam issued passbooks in respect of item No.1 to 7 of plaint schedule properties.
The revenue authorities issued pattadar passbooks and title deeds in favour of 1st defendant in respect of item No.1,2,3,6 and 7 of plaint schedule properties situated in Thimmapuram and item No.1 of plaint schedule property situated in Bukkapuram and item No.1 of plaints schedule property situated in Bollavaram. They also issued pattadar passbooks and title deeds in respect of item Nos.6 & 7 of plaint schedule properties to Setteru Ankamma as per gift deed. They issued pattadar passbooks and title deeds in favour of 2nd defendant in respect of item No.1, 2, 3 of plaint schedule properties situated in
M.Thimmapuram village limits and item No.1 of plaint schedule property situated in Bukkapuram village limits and item No.1 of plaint schedule property situated in Bollavaram. The defendants are absolute owners of plaint schedule properties.
8
8.The defendants and their predecessor in title have absolute ownership over the plaint schedule properties and they have been in possession and enjoyment of the plaint schedule properties since more than 50 years peacefully, continuously and without anybody’s interruption and so their title was perfected. The plaintiffs have no manner of right in plaint schedule properties. The suit is liable to be dismissed for non-joinder of necessary parties i.e., Setteri @ Settivari
Ankamma. Therefore, prayed to dismiss the suit with costs.
9.After filing of additional written statement, the plaintiffs filed rejoinder denying the allegations made in the additional written statement and stated that Peddi Kotamma has purchased item No.1 of plaint schedule property and got it registered in her name from
Venkata Reddy and his brothers. The said property was purchased by the Peddi Kotamma out of the income derived from the ancestral property, as she acted as Kartha of the family. During her life time, she never executed any deed in anybody favour and the said alleged gift deed dt.26.5.1958 is concocted document for wrongful gain.
Venkatapathy never gifted item No.6 & 7 of the plaint schedule property in favour of 1st defendant and his wife. When the Obulapathy himself has no valid title in respect of item No.6 and 7 the said alleged gift deed in favour of the 1st defendant and his wife has no legal value, since it is only a created document. At any time Setteru Obulapathy never gifted item No.4 & 5 in favour of Venkatapathy. Since the properties are joint family properties and they are in joint possession and enjoyment with plaintiffs’ share obtaining pattadar passbooks by misrepresentation does not confirm any right and the said pattadar pass books will not create any title defeating legitimate right of the plaintiffs. The plaint schedule properties are joint family properties and they are in joint possession and enjoyment with the plaintiffs and their rights will not be disturbed by issuance of pattadar passbooks.
10.After adding of parties to the suit the defendants No.3 to 5 filed their additional written statement denying the allegations made in the plaint and stated that Setteri @ Settivari Obulapathi is only son-in-law of Peddi Kotamma. His children through Naramma have no manner of right in the properties of Peddi Kotamma. The defendants 1 & 2 along with defendants No.3 to 5 are children of Setteri @ Settivari
Venkatapathy who was the son of Setteri @ Settivari Obulapathi and 9
Pedda Kotamma who was the daughter of Peddi Kotamma. The another daughter of Peddi Kotamma i.e., Chinna Kotamma had no issues. So, the defendants are the legal heirs to succeed the property of Peddi Kotamma. These defendants are well-off and their marriages were performed with all the required presentations. The defendants 1 and 2 are looking after their welfare and customary requisites of these defendants. So, the defendants 1 and 2 are the present owners of the plaint schedule properties and these defendants are not claiming said properties from the defendants 1 and 2. The plaintiffs have no manner of right in plaint schedule properties and prayed to dismiss the suit with costs.
11.Subsequently, as per the orders in I.A.No.8/2013 dt.12.6.2013 the plaintiffs amended the pleadings of their plaint.
12.After amendment of pleadings and addition of defendants No.3 to 5, the defendants No.1 & 2 filed their additional written statement stating that the adding of defendants 3 to 5 against to the mandatory provisions and consequential amendments are nothing but causing hardships to the contentions raised by these defendants and they are also against law. However by such impleading, the defects of plaintiffs will not be cured and still they are fatal to the suit of plaintiffs and prayed to dismiss the suit with costs.
13.The defendants No.3 to 5 filed memo adopting the written statement of defendants No.1 and 2.
14. Based on the rival pleadings both in the plaint and written statements, the following issues were settled for trial:-
1) Whether the plaintiffs No.1 to 4 are entitled for partition and separate possession of their half share in the plaint schedule property?
2) Whether the plaintiffs are entitled for permanent injunction against the defendants as prayed for?
3) Whether Peddi Kotamma who is the original owner of the plaint schedule property had adopted one Obulapathi as her illatam son-in-law?
10
4) Whether Peddi Kotamma gifted the plaint schedule property under a registered gift deed dt.26.5.1958 in favour of the father of defendants namely Settevari Venkatapathi?
5) Whether the defendants succeeded the plaint schedule properties?
6) Whether the suit is bad for non-joinder of necessary parties?
7) To what relief?
15. Heard arguments. The counsel for plaintiffs submitted written arguments.
16. On behalf of the Plaintiffs, the 2nd Plaintiff herself is examined as
P.W.1, and in support of their claim PW.2 & PW.3 were examined and got marked Exs.A1 to A6. Ex.A.1 is the Genealogy, Ex.A2 is the office copy of registered notice dt.19.11.2005, Ex.A3 & A4 are postal acknowledgments, Ex.A5 is the speed post receipt and Ex.A6 is the reply notice dt.29.11.2005.
17.On behalf of the Defendants, the first defendant himself is examined as D.W.1 and in support of their claim, DW.2 to DW.5 were examined and got marked Exs.B1 to B19 and Exs.X1 & X2. Ex.B1 is the registered sale deed dt.31.5.1955 executed by Basireddygari
Venkata Reddy and two others in favour of Peddi Kotamma, Ex.B2 is the registered gift deed dt.26.5.1958 executed by Peddi Kotamma in favour of Setty Venkatapathi, Ex.B3 is the registered gift deed dt.9.7.1982 executed Settivari Venkatapathi in favour of his son
Pullaiah and Ankamma, Ex.B4 is the gift deed dt.17.6.1981 executed by Setteri Obulapathi in favour of his son Venkatapathi, Ex.B5 is the certified copy of joint memo filed in O.S.No.494/1999, Ex.B6 is the ryoth passbook in the name of Peddi Venkatapathi, Ex.B7 is the another passbook in favour of Peddi Venkatapathi, Ex.B8 & B9 are title deed passbook and pattadar passbook in the name of Peddi Pedda
Pullaiah, Ex.B10 & Ex.B11 are the pattadar passbook and title deed passbook issued to Peddi Pedda Pullaiah, Ex.B12 is the pattadar passbook issued in favour of Setteru Pullaiah, Ex.B13 & B14 are the pattadar passbook and title deed passbook in favour of Setteru
Ankamma, Ex.B15 & Ex.B16 are the pattadar passbook and title deed passbook in favour of Peddi Chinna Pullaiah, Ex.B17 & Ex.B18 are the 11 pattadar passbook and title deed passbook in favour of Peddi Chinna
Pullaiah, Ex.B19 is the pattadar passbook issued in favour of Setteru
Chinna Pullaiah, Ex.X1 is the relevant entry of Peddi Pedda Pullaiah at page Nos.58 & 59 in 1B-Register and Ex.X2 is the relevant entry of
Peddi Chinna Pullaiah at page Nos.96 & 97 in 1B-Register.
18.Issues No.1 & 2 :-
1) Whether the plaintiffs No.1 to 4 are entitled for partition and separate possession of their half share in the plaint schedule property?
2) Whether the plaintiffs are entitled for permanent
injunction against the defendants as prayed for?
Since these issues are interlinked, they are answered together.
The contention of the plaintiffs is that the plaint schedule properties are ancestral properties of plaintiffs and defendants herein and except the plaint schedule properties there are no other properties to their family and that originally the plaint schedule properties belongs to the ancestors of Peddi Kotamma and she had two daughters by name
Pedda Kotamma and Chinna Kotamma and that her both daughters were got married to one Setteru Obulapathi as illatam son-in-law and that he stayed in in-laws house. Further, that the said Obulapathi had children through his first wife Pedda Kotamma, whereas the second wife was not blessed with any children. The said Obulapathi married the said Chinna Kotamma after the death of the said Pedda Kotamma.
Further, the said Chinna Kotamma was also died and after her death the said Obulapathi married one Naramma who is the 4th plaintiff herein. The plaintiffs 1 to 3 are the daughters of the said Naramma.
Pedda Kotamma and Obulapathi were blessed with one son and one daughter i.e., Venkatapathi and Kotamma. Further, Venkatapathi was also blessed with three daughters and two sons. The said daughters were not added as parties earlier as that they were married long back prior to the amendment of the Succession Act. However, it is learnt that they were also added as defendants No.3 to 5 as per the orders in
I.A.No.126/2009 dt.12.4.2010.
12
19. It is contended by the counsel for the defendants 1 & 2 that by impleading defendants No.3 to 5 the defects of the plaintiffs cannot be cured. Though the defendants 3 to 5 added, in their written statement of defendants 3 to 5 they have not claimed the plaint schedule properties and further they have stated that the said Obulapathi is only son-in-law of Peddi Kotamma and his children through Naramma have no manner of right in the plaint schedule properties of Peddi
Kotamma. Further they stated that the defendants 1 and 2 are present owners of the plaint schedule properties and these defendants are not claiming said properties from the defendants 1 & 2. However, the rejoinder was also filed by the plaintiffs.
20. On perusal of all the pleadings on both sides the relationship is admitted and as well amended genealogy is also filed along with the amended plaint, but as shown in the genealogy as contended in the pleadings that the plaint schedule properties are ancestral properties of Peddi Kotamma who has two daughters i.e., Pedda Kotamma and
Chinna Kotamma. As shown in the amended genealogy that Naramma who is the plaintiff No.4 herein and also no more and that the plaintiffs 1 to 3 are her daughters. The said Naramma is not the daughter of
Peddi Kotamma. However, she is wife of Obulapathi who married her after the death of Chinna Kotamma. As contended by the defendants and also argued that the said Naramma is not the daughter of Peddi
Kotamma.
21. The plaint schedule properties originally belong to Peddi
Kotamma as deposed in the evidence of DW.1 who is the 1st defendant in the suit. He deposed that Peddi Kotamma is the original owner of the plaint schedule property and she gifted the plaint schedule properties and other properties in favour of her grandson by name
Setteri @ Settivari Venkatapathi under registered gift deed dt.26.5.1958 and the same was accepted by him and he had been enjoying the same with possession. The said Venkatapathi died about five or six years back and he allotted his properties to DW.1 and 2nd defendant during his life time which are in their possession and enjoyment respectively. As such that they succeeded the plaint schedule properties and other properties and became absolute owner and have been enjoying the properties as allowed by their father i.e.,
Venkatapathi. As shown in the genealogy the said Venkatapathi is the 13 son of Pedda Kotamma through Obulapathi and defendants 3 to 5 have not claimed any property and that DW.1 and 2nd defendant as contended that they succeeded the plaint schedule properties and that they are enjoying the same.
22.Whereas on behalf of the plaintiffs, the 2nd plaintiff is examined as PW.1. She states that the plaint schedule properties belongs to one
Peddi Kotamma and she had no male issues and has only daughters and she adopted one Setteru Obulapathi as illatam son-in-law who is the husband of 4th plaintiff herein. As such in her cross-examination she admitted that Peddi Kotamma has daughters namely Pedda
Kotamma and Chinna Kotamma and her father by name Setteru @
Settivari Obulapathi married Pedda Kotamma and through her, her father had son by name Venkatapathi and daughter by name
Kotamma. She also admitted that after the death of Chinna Kotamma her father married her mother namely Naramma. Though PW.1 contends that Obulapathi was adopted son of Peddi Kotamma, there is no document to prove the same. He further contends that he was son- in-law of Peddi Kotamma, which was substantiated by the evidences of
PW.2 & PW.3 also that Obulapathi is the illatam son-in-law of Peddi
Kotamma, who married the daughters of Peddi Kotamma. The evidence of PW.1 is versatile with regard to the said Obulapathi who is her father at one stretch she states that Obulapathi is adopted son of
Peddi Kotamma and another stretch he is adopted son-in-law of Peddi
Kotamma as he married her two daughters. Since the plaint schedule properties are originally belonged to said Peddi Kotamma, the mother of PW.1 is not the daughter of the said Peddi Kotamma though shown in the genealogy. It is argued by the counsel for defendants that to mislead the defendants, genealogy is shown as such.
23. Further the plaintiffs have filed Exs.A1 to A6 with no proof of the relevant documents to show that the plaint schedule properties are their ancestral properties and that the mother of PW.1 is not the daughter of said Peddi Kotamma who is the original owner of the plaint schedule properties. Further she also gifted the plaint schedule properties to her grandson S.Venkatapathi under registered gift deed dt.26.5.1958 which is Ex.B2 and also source of the property under
Ex.B1. Whereas the plaintiffs have not filed any of the documentary proof that how they could succeed the plaint schedule properties and 14 moreover the plaint schedule properties are originally belongs to Peddi
Kotamma who is mother of Pedda Kotamma and Chinna Kotamma and not that of Naramma, the plaintiff No.4 herein. DWs.2 to 4 who are third parties are examined in support of the contention of defendants 1 & 2.
24. The Village Revenue Officer was examined as DW.5, though him
Exs.X1 and X2 are marked. There are entries in 1-B register in favour of Pedda Pullaiah and Chinna Pullaiah who are the defendants No.1 & 2 under Exs.X1 & X2. He further deposed that Exs.B8 & B9 pattadar passbook and title deed are issued in favour of Pedda Pullaiah (D1) and Exs.B17 & B18 pattadar passbook and title deed issued in favour of Chinna Pullaiah (D2). To substantiate the contention of the defendants, they have filed Exs.B1 to B19 that all the relevant documents, whereas the plaintiffs failed to do so. As such the plaintiffs are not entitled for partition and separate possession of 9/16th share in the plaint schedule properties and they are not entitled for permanent injunction against the defendants. Hence, issues 1 & 2 are answered against the plaintiffs.
25.ISSUE No.3 :
Whether Peddi Kotamma who is the original owner of the plaint schedule property had adopted one
Obulapathi as her illatam son-in-law?
As per the discussion made in issues No.1 & 2, the plaintiffs are failed to prove that the said Peddi Kotamma who is the original owner of the plaint schedule property had adopted one Obulapathi as her illatam son-in-law. Hence, issue No.3 is answered against the plaintiffs.
26.ISSUE No.4 :
Whether Peddi Kotamma gifted the plaint schedule property under a registered gift deed dt.26.5.1958 in favour of the father of defendants namely Settevari
Venkatapathi?
15
As per the discussion made in issues No.1 & 2 and as per Ex.B2 gift deed dt.26.5.1958 the defendants proved that Peddi Kotamma gifted the plaint schedule property to her grandson who is the father of defendants, Setteru @ Settivari Venkatapathi. Hence, issue No.4 is answered in favour of the defendants.
27.ISSUE No.5 :
Whether the defendants succeeded the plaint schedule properties?
In the light of the discussion made in issues No.1 to 4, the defendants No.1 & 2 have succeeded the plaint schedule properties.
Hence, issue No.5 is answered in favour of the defendants.
28.ISSUE No.6 :
Whether the suit is bad for non-joinder of necessary
parties?
The defendants No.3 to 5 are added as per the orders in
I.A.No.126/2009 dt.12.4.2010. However, the defendants No.1&2 have contended that the adding of defendants No.3 to 5 against to the mandatory provisions and consequential amendments are nothing but causing hardships to the contentions raised by them and they are against law. However, by such impleading, the defects of plaintiffs will not be cured. However, this issue is nullified with impleading of defendants No.3 to 5. Hence, this issue is nullified.
29. ISSUE No.7 : To what relief?
Since all the above issues are answered against the plaintiffs.
Therefore, the plaintiffs are not entitled for partition and separate possession and also permanent injunction. Hence, the suit has to be dismissed with costs.
30.In the result, the suit is dismissed with costs.
Dictated to the Personal Assistant, transcribed and typed by him,
corrected, signed and pronounced by me in the open court, this the 11th day of December, 2014.
16
II Addl. Senior Civil Judge, Nandyal. I-Addl.Senior Civil Judge, (FTC), Nandyal.
Appendix of Evidence
(Witnesses examined)
For the Plaintiffs:-
P.W.1: Tota Kotamma P.W.2: Kota Devachandrudu P.W.3: Pulibandla Chinna Venkateswarlu
For the Defendants:-
D.W.1: S.Pedda Pullaiah D.W.2: Padakandla Hussain Reddy D.W.3: Pagadala Peddi Bala Chandrudu D.W.4: Peddi Sivasankara Vara Prasad Reddy D.W.5: B.Pamuleti, VRO.
Exhibits marked
For the Plaintiffs:-
Ex.A.1 is the Genealogy. Ex.A2 is the office copy of registered notice dt.19.11.2005. Ex.A3 & A4 are postal acknowledgments. Ex.A5 is the speed post receipt. Ex.A6 is the reply notice dt.29.11.2005.
For the Defendants:-
Ex.B1 is the registered sale deed dt.31.5.1955 executed by Basireddygari Venkata Reddy and two others in favour of Peddi Kotamma.
Ex.B2 is the registered gift deed dt.26.5.1958 executed by Peddi Kotamma in favour of Setty Venkatapathi.
Ex.B3 is the registered gift deed dt.9.7.1982 executed Settivari Venkatapathi in favour of his son Pullaiah and Ankamma.
Ex.B4 is the gift deed dt.17.6.1981 executed by Setteri Obulapathi in favour of his son Venkatapathi.
Ex.B5 is the certified copy of joint memo filed in O.S.No.494/1999.
Ex.B6 is the ryoth passbook in the name of Peddi Venkatapathi.
Ex.B7 is the another passbook in favour of Peddi Venkatapathi.
Ex.B8 is the title deed passbook in the name of Peddi Pedda Pullaiah.
Ex.B9 is the pattadar passbook in the name of Peddi Pedda Pullaiah.
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Ex.B10 is the pattadar passbook issued to Peddi Pedda Pullaiah.
Ex.B11 is the title deed passbook issued to Peddi Pedda Pullaiah.
Ex.B12 is the pattadar passbook issued in favour of Setteru Pullaiah.
Ex.B13 is the pattadar passbook in favour of Setteru Ankamma.
Ex.B14 is the title deed passbook in favour of Setteru Ankamma.
Ex.B15 is the pattadar passbook in favour of Peddi Chinna Pullaiah.
Ex.B16 is the title deed passbook in favour of Peddi Chinna Pullaiah.
Ex.B17 is the pattadar passbook in favour of Peddi Chinna Pullaiah.
Ex.B18 is the title deed passbook in favour of Peddi Chinna Pullaiah.
Ex.B19 is the pattadar passbook issued in favour of Setteru Chinna Pullaiah.
Ex.X1 is the relevant entry of Peddi Pedda Pullaiah at page Nos.58 & 59 in 1B-Register.
Ex.X2 is the relevant entry of Peddi Chinna Pullaiah at page Nos.96 & 97 in 1B-Register.
II A.S.C.J, Ndl. FAC I-ASCJ,Ndl.
18
IN THE COURT OF THE I-ADDL. SENIOR CIVIL JUDGE, (FTC)
NANDYAL.
Present: Sri T.M.C.Vijaya Kumar, II Addl. Senior Civil Judge, Nandyal. FAC I-Addl.Senior Civil Judge, (FTC) Nandyal
Thursday, the 11th day of December, 2014.
Original Suit No.228/2006
Between:-
1. Pedda Kotamma, aged about 50 years, w/o Ankanna
2. Tota Kotamma, aged about 40 years, w/o T.P.Narayana
3. T.Saraswathi, aged about years, w/o Venkateswarlu
4. Setteru Naramma, aged about 85 years, w/o Obulapathi (died no LRs except plaintiffs 1 to 3. All are Hindu, R/o M.Thimmapuram village, Mahanandi mandal.
…..Plaintiffs
And
1. S.Pedda Pullaiah, aged about 40 years, s/o Venkatapati
2. S.Chinna Pullaiah, aged about 38 years, s/o Venkatapati
Both are Hindu, agriculturist, r/o M.Thimmapuram village, Mahanandi mandal.
3. Pedda Pullamma, aged about 40 years, Hindu, House wife, R/oDeebaguntla village, Gospadu mandal, Kurnool district.
4. Chinna Pullamma, aged about 38 years, Hindu, House wife, R/o Rythunagaram village, Nandyal mandal, Kurnool district.
5. Bala Pullamma, aged about 35 years, Hindu, agriculturist, R/o Ramapuram village, Bandi Atmakur mandal, Kurnool district. (Defendants 3 to 5 are added as per orders in I.A.
No.126/2009 dt.12.4.2010)….. Defendants
-oo0oo- , This is a suit filed for partition and separate possession of plaintiffs’ 9/16th share and permanent injunction restraining the defendants either from trespassing into the plaint schedule property or from disturbing lawful possession and enjoyment of the plaintiffs over 19 the suit schedule property and also costs of the suit. The brief averments of the amended plaint are that the plaint schedule properties are ancestral properties of plaintiffs and defendants and except the plaint schedule properties there are no other properties to the family of plaintiffs and defendants. Originally, the plaint schedule properties are belongs to the ancestors of Peddi Kotamma. She has no male issues and has only two daughters. She brought one Setteru Obulapathi as illatam son-in-law, who is also the husband of 4th plaintiff. The said Peddi Kotamma has given her two daughters by name Pedda Kotamma and Chinna Kotamma to her son-in-law Setteru Obulapathi. After brought Setteru Obulapathi as illatam son-in-law, he stayed in his in-laws house as illatam son-in-law. The said Obulapathi had children’s through his first wife Pedda Kotamma and his second wife has not blessed any children. Since the first wife of Setteru Obulapathi died, he married the sister of his first wife by name Chinna Kotamma who has no issues. So Setteru Obulapathi has got right, title and possession over the plaint schedule property. After the life time of his two wives i.e., Pedda Kotamma and Chinna Kotamma, the said Obulapathi again married one Naramma, who is the 4th plaintiff in the suit. The said Naramma has blessed with three daughters i.e., plaintiffs 1 to 3 herein. The first plaintiff has no issues whereas the second plaintiff had two daughters and one son, likewise 3rd plaintiff has got one son and daughter.
The said Pedda Kotamma, who is a co-sister of 4th plaintiff, had blessed one son by name Venkatapathi and one daughter by name Kotamma. The said Venkatapati had blessed with three daughters i.e., defendants 3 to 5 and two sons by name Pedda Pullaiah and Chinna Pullaiah i.e., defendants 1 & 2. The three daughters of Venkatapati have got married long back even prior to amendment of Succession Act and hence they have not been added as parties earlier. The father of defendants Venkatapati was died about five years back and both the defendants are living under one roof as Hindu Joint family. Since the second wife of Setteru Obulapati died issueless and the remaining two wives of Setteru Obulapati i.e., grandmother of defendants, Pedda Kotamma and 4th plaintiff herein has got equal share in their husband’s property i.e., plaint schedule property. Thus, the plaintiffs have got joint 9/16th share in the plaint schedule property along with defendants. Likewise the defendants has got only 7/16th share jointly in the plaint schedule property along with plaintiffs. The defendants have no absolute right, title over the plaint schedule property as it is in joint possession and enjoyment of the plaintiffs. Whileso, ill-feelings started between the plaintiffs and defendants in their family matters and the plaintiffs felt that there is no safe and convenient for them to continue as co-owners along with the defendants, but the defendants postponing the issue of partition on some pretext or other. Hence, the plaintiffs constrained to file the suit for partition and separate possession of their share and also for permanent injunction. Hence, the suit.
Plaint presented on 25.4.2006 and filed on 6.11.2006. J.V of Rs.4,11,562-50 ps (3/4th value in total market value of Rs.5,48,750/-) and for permanent injunction is Rs.5,000/-, Total J.V. of Rs.4,16,562- 50ps and C.F of Rs.200/- is paid under section 34(2) of A.P.C.F. and Suits Valuation Act and CF of Rs.411/- is paid under section 26(C) of A.P.C.F. and Suits Valuation Act, 1956.
20
The cause of action for this suit arose in the month of October 2005 at Thimmapuram when ill-feelings started between the plaintiffs and defendants and defendants refused for amicable partition and separate possession of the plaintiffs share at Thimmapuram village, within the jurisdiction of this court.
This suit coming on 21.11.2014 before me for final hearing in the presence of Sri M.Sivasankar Reddy & Sri K.Gouri Sankar, Advocates for the Plaintiffs and of Sri V.Ramachandra Rao, Advocate for the Defendant No.1 to 5, and after hearing on both sides, and after having stood over for consideration till today, this court doth order and passed the decree as follows:-
3) that the suit be and the same is hereby dismissed;
4) that the Plaintiffs do pay to the Defendants a sum of Rs. being costs of the suit.
Given under my hand and seal of the court, this the 11th day of December, 2014.
II-Addl. Senior Civil Judge, Nandyal.
Memo of Costs
For the Plaintiffs For Defendants
Stamp on Vakalat Rs. 2=00 Rs. 2=00 Stamp on Plaint Rs. 11126=00 Stamp on Process Rs. -- Advocate’s Fee Rs. 86400=00 Rs.10000=00 Writing Charges Rs. 10=00 Rs. 10=00 Typing Charges Rs. 20=00 Rs. 50=00
------------------ --------------
Total : Rs. 97558=00 Rs.10062=00
------------------ --------------
II A.S.C.J, Ndl. S c h e d u l e
Landed property situated within the village limits of Thimmapuram of Mahanandi mandal having following particulars.
1. S.No.132/B1A extent 1.06 called Paturu chenu
2. S.No.132/BC extent 3.64 cents called Paturu Chenu.
Boundaries 1 & 2:
East : K.Nagaiah land
West: P.Subbaiah land
North: U.Pullaiah land
South: K.Sanjeevarayudu and others land 21
3. S.No.142 extent 1.78 cents Called Cheruvu Krindi Chenu
Boundaries:
East : T.Subba Rao land West : G.Akkamma land
North: Dastagiri land South: Rastha (items No.3 to 9 of the Thimmapuram village, item No.1 of the
Bukkapuram village land and item No.1 and 2 house properties at
Thimmapuram village properties are deleted from original plaint schedule as per orders in I.A.No.126/2009 dated 12.4.2010).
(Schedule is amended as per orders in I.A.No.126/2009 dt.12.4.2010)
II A.S.C.J, Ndl.
Order Record 4 total
| Case No. | Parties | Date | Type | Outcome |
|---|---|---|---|---|
| OS/106/2004 | R.Laxmi Narasaiah vs S.Nagappa | 17 Mar 2015 | Order On Exgibit | — |
| OS/211/2004 | Raghupolu Jaya Ramaiah vs R.Naga Lakshmamma | 17 Mar 2015 | Order On Exgibit | — |
| OS/921/2003 | Raghuprolu Kamsali Lakshmi Narasaiah vs Raghuprolu Kamsali Lakshmi Narayana | 17 Mar 2015 | Order On Exgibit | — |
| OS/228/2006 | Pedda Kotamma vs Pedda Pullaiah | 11 Dec 2014 | Order On Exgibit | — |
Frequently Asked Questions
How many cases has Smt T.M.C.Vijaya kumar handled?
Smt T.M.C.Vijaya kumar has handled 4 court orders since 2010 at III Addl District Complex, Nandyal.
What types of cases does Smt T.M.C.Vijaya kumar hear?
Based on available records, Smt T.M.C.Vijaya kumar primarily handles Civil matters (Original Suits) at III Addl District Complex, Nandyal.
Where is Smt T.M.C.Vijaya kumar currently posted?
Smt T.M.C.Vijaya kumar is posted as I Addl.Senior Civil Judge-FTC at III Addl District Complex, Nandyal, Kurnool, Andhra Pradesh.
Are judgments by Smt T.M.C.Vijaya kumar available online?
Yes. 4 judgments by Smt T.M.C.Vijaya kumar are available on Legistro with full text, outcome, and sections cited.
Since when is Smt T.M.C.Vijaya kumar serving?
Smt T.M.C.Vijaya kumar has been serving at III Addl District Complex, Nandyal since 2010.
Case Types
Posting History
-
Dec 2010 — May 2015I Addl.Senior Civil Judge-FTC · 4 orders
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