1Fair Judgment in O.S.No.94/2012, dt. 04.05.2020
IN THE COURT OF THE SENIOR CIVIL JUDGE: AMALAPURAM
P RESENT : S RI Y.N AGARAJA ,
Senior Civil Judge, Amalapuram.
Monday, the 4th day of May, 2020.
ORIGINAL SUIT No.94/2012
Between: Marella Sai Ram, S/o Venkatarao, Business, 47 Years, D.No.8154, Garapati Veedhi, Girappa Sandhu, Amalapuram, East Godavari District.…Plaintiff
AND
Marella Mallaparaju @ Babji, S/o Venkatarao, Business, 52 Years, D.No.1653, KNF Road, Mummidivaram, Gate Center, Amalapuram, E.G.District.…Defendant
This suit is coming on 11.03.2020 for final hearing before me in the presence of Sri K.Mallapa Raju, Advocate for the Plaintiff and of Sri V.Nageswara Rao, Advocate for the Defendant, and the matter having stood over for consideration, till this day, this Court, delivered the following:
:J U D G M E N T:
1.This is the suit filed to pass a decree and Judgment in favour of plaintiff and against the defendant for partition of plaint schedule property in to two equal shares by metes and bounds according to good and bad qualities and for allotment of one such share to the plaintiff and to put him in separate possession of the same by passing final decree; by directing the defendant to account for the assets of the business and past profits for the last 3 years prior to filing of the suit in respect of Sri Devi Hotel business; Further to direct the defendant to account for future profits on the schedule property and the hotel business carried on jointly from the date of suit till the date of realization of plaintiff’s half share in the schedule property and to award costs of the suit.
2.The case of the plaintiff as per the averments mentioned in the plaint is as follows :
The Plaintiff and Defendant are brothers and they are the children of Sri
Marella Venkatrao and Mangayamma. During the life time of said Venkatrao, himself, plaintiff and defendant started a hotel business in the year 1989 in a rented building at
Amalapuram on their own accord. The defendant being the eldest to the plaintiff is entrusted with management of the hotel business and obtained Registration Certificate (R.C) in his name originally. Plaintiff’s sister by name Nandyala Lalitha Kumari being 2Fair Judgment in O.S.No.94/2012, dt. 04.05.2020 a widow used to assist in running hotel by preparing food. Mother of plaintiff and defendant advanced capital investment for starting the business out of her savings and income.
ii)It is further case of the plaintiff that while carrying the hotel business and from out of the income derived from the said business an old tiled house purchased through a Registered sale deed dated 30.05.1996 in the name of plaintiff and defendant. Subsequently both obtained approval from Municipality and constructed a ground and first floor initially. They obtained assessment number 1701 with Door No.1653/1 at Gandhi Bazar, Mummidivaram gate, Amalapuram. They also electrified the said building and started Sri Devi Hotel business. Defendant was looking after financial affair and cash counter, where as plaintiff and their sister
Lalitha Kumari looking after the kitchen and preparing food. Subsequently with the income derived from the hotel business plaintiff and defendant constructed 2nd floor in the existing building with the permission of Municipality. The said building was acquired and maintaining from out of the joint efforts of plaintiff and defendant and it is being enjoyed by the plaintiff and defendant jointly.
iii)The plaintiff further averred that they expanded the business by starting meals section in the 1st floor by purchasing necessary utensils by spending more than
Rs.5,00,000/.
iv)It is further averred that while enjoying the properties and doing business jointly the defendant developed a malicious intention after performance of marriage of his 1st daughter and after completion of studies of his son. The defendant with an intention to occupy the entire premises and to take possession of entire business into his hands by converting the joint business as that of his own business by employing his own son Venkata Siva Naresh and soninlaw Konapureddy Srinivas to assist him, as a result defendant failed to render any account for the business run by him and plaintiff. The defendant being an elder member and as Manager and custodian of accounts since 1989. While enjoying the property jointly by the plaintiff and defendant without partitioning the property closed the hotel for some time on the pretext of repair about two months back and making efforts to prevent the plaintiff to participate in hotel business. Recently defendant opened the hotel and started business without consent of the plaintiff. The action of the defendant is illegal and unwarranted. The defendant is liable to render accounts for the business since 1989 till the date.
v)It is further averred that the plaintiff held mediation through elder and family members by demanding the defendant to partition the property and for 3Fair Judgment in O.S.No.94/2012, dt. 04.05.2020 settlement of accounts of hotel business. But the defendant gave evasive answer and postponed the event to partition on one pretext or the other.
vi)The plaintiff further averred that he is having children with tender age, due to the acts of defendant, plaintiff became unemployee. The plaintiff being heart patient could not with stand the circumstances and therefore he do not want to keep the property and hotel business jointly. Hence he got issued legal notice on 12.09.2011 by demanding partition of the plaint schedule property and the same was received by the defendant but did not give reply and failed to partition the properties and the business as demanded.
vii)The plaintiff further averred that his parents gave birth to defendant, plaintiff and six daughters namely 1) Adapa Adilakshmi, 2) Jakkampudi Sarojini, 3)Anisetti Satyananda Devi, 4) Gavara Ratnakumari, 5) Nandyala Lalitha Kumari, 6)
Nandula Mangatayaru. Marella Venkatrao had no ancestral property, he did Kirana business at Amalapuram and acquired house property with his self acquisition. His wife Mangayamma have got about Ac.1.00 Cents of land as her streedhana and it is herself acquired property. Venkatrao died in the year 2003 and after his demise his wife Mangayamma residing in the house and eaking out lively wood on the Ac.1.00
Cts of land. Hence the plaintiff restricted his claim to partition of self acquired properties of plaintiff and defendant and reserving his right to seek partition of the self acquired properties of his father at a later stage. Since they have to be partitioned with the defendant, his mother and sisters and they are not necessary parties for the partition of the plaint schedule property.
viii)It is further averred that during the course of business plaintiff and defendant used to earn profits after deducting of expenses for the business. The defendant misappropriated the profits for his personal use and mismanaged the affairs of the hotel. Hence he is bound to render accounts for the business run by plaintiff and defendant. The plaintiff tentatively estimated the annual profits to a tune of Rs.1,50,000/ every year towards his share in the business and income from the schedule property. The defendant is liable for account on the same for the last 3 years prior to filing of the suit. The plaintiff is also entitled for account of future profits from the date of suit till the date, the plaintiff is put in possession of his share and till the date of business continued in the schedule premises. Hence the suit.
3.On behalf of defendant filed the written statement by denying all the material allegations mentioned in the plaint except the relationship between the parties. It is further contended that plaintiff and defendant had six sisters all of them are married and living with their families even during the life time of Venkatrao. The widowed sister of plaintiff Smt. Nandyala Lalitha Kumari having two sons and she is living in 4Fair Judgment in O.S.No.94/2012, dt. 04.05.2020 her own house separately. Late Venkatrao died in the month of October, 2002 since then plaintiff and defendant are in exclusive possession and enjoyment of house at
Garapati street with their mother. Presently plaintiff and his mother are residing in the house. Brotherinlaw of parties by name Gavara Narsinga Raju, who is the husband of their 4th sister/Ratnakumari is behind the litigation. The house situated at
Garapati street belongs to late Venkatrao. As the said property is in possession of plaintiff he intentionally avoided the same to seek partition and confined for partial partition of the properties of defendant.
ii)It is further averred that family of this defendant, plaintiff and their father is a poor family. Late Venkatrao used to run a small kirana business. The defendant is an innocent man and studied up to 7th class only. The plaintiff passed 10th class and he is well versed in writing accounts. The defendant is a hard working person and he used to run the business by cooking and preparing food items in the Sri
Devi Hotel by taking daba house of Asu Balaram for rent. Initially he started business with the financial help of Y.Satyanarayana of Satyanarayana Tent house on 24.12.1989 even during the life time of his father Vankatrao. Plaintiff used to work as
Coolie in another Kirana shop of Thikkireddi Rambabu of Amalapuram.
iii)It is further averred that as the plaintiff did not settle in the life the defendant out of sympathy allowed the plaintiff to assist him in his hotel business.
The plaintiff used to sit in a cash counter and maintain accounts as he was well versed in maintaining upon. All the account transactions were looked after by the plaintiff alone. Subsequently defendant purchased a tiled house under Registered sale deed
dated 30.05.1996 from the Ravinoothala Bhavani and others and shifted the said
business to the tiled house. Due to the sentimental reason the defendant included the name of the plaintiff being a brother as purchaser in the said sale deed. In fact plaintiff has no means to purchase the said property jointly along with defendant.
iv)It is further averred that subsequently the tiled house was removed and a building was constructed in its place. The business of Sri Devi Hotel is a proprietary concern and defendant is the exclusive owner of the said business. The plaintiff is neither a partner nor a sharer in the said business. The said business is the out come of the hard labour of defendant and it is the not the joint venture of plaintiff and defendant. Defendant alone got license from the Municipality and from the Labor
Inspector to the said business. He used to pay sales tax for some time and subsequently it was exempted. As such plaintiff is not entitled to ask for any share or profits over the same. The purchase of cooking vessels etc. for running meals hotel is also the proposal of defendant for his separate business. The plaintiff initially joined as a worker under the defendant and he was paid Rs.15/ per day towards his daily 5Fair Judgment in O.S.No.94/2012, dt. 04.05.2020 salary during the year 1990. Subsequently the salary being increased from time to time and presently, his salary is Rs.250/ per day. But unfortunately the plaintiff betrayed the defendant taking advantage of innocence and ignorance, gradually secreted large amount from the daily collection and purchased some property at Peda
Uppalam Village, S.Rayavaram Mandal, Vizag District and Sabbavaram Village,
Gajuwaka Mandal of Vizag District.
v)It is further averred that recently defendant came to know the fraud played by the plaintiff. Hence defendant raised dispute in the month of June, 2011
before the elders like 1) Thikkireddy Bhaskara Rao, 2) Thikkireddy Ramakesava Rao,
3) Thikkireddy Peda Mallapa Raju (Manibabu), 4) Adapa Nageswara Rao and his son
Babulu, 5) Marella Bhimaraju and others. To the surprise of defendant he came to know that plaintiff snatched away all the account books of defendant business.
vi)It is further averred that in the mediation the plaintiff admitted about purchase of properties by misappropriating the amounts from hotel. He further admitted that he has no other source of income except from the secreted amounts of defendant. In the said mediation plaintiff agreed to abide by the decision of elders.
vii)It is further averred that the elder chastised the plaintiff and advised both parties to effect partition of the properties purchased by the plaintiff at Vizag
District and directed the parties to have exclusive rights over the respective houses where they are residing. It is also settled by the elders as the plaintiff misappropriated amounts, shall not have access to the hotel. As per the settlement the defendant had to leave the house at Garapati street worth of Rs.20,00,000/ to his share and take the half share of the plaintiff in the building where he has been residing and running hotel, which is also equally worth of Rs.20,00,000/ to the share of plaintiff. The other sisters and mother disclaimed any shares, rights or interest in the said house long back. The mother agreed to live with the plaintiff.
viii)It is further averred that accordingly the defendant shifted his residence to the building on 25.06.2011 and has been in exclusive possession and enjoyment of entire building and residing in the 2nd floor. The defendant is running Coffee Hotel in the ground floor while the grinding material and other material are being stored in the 1st floor. As per the settlement before the elders the plaintiff has been residing in the entire house and site situated in Garapathi Street. When the matter came up for partition of property of Vizag District, the plaintiff started dodging the matter on one pretext or the other.
ix)It is further averred that the defendant came to know that the plaintiff created nominal documents dated 21.07.2011 in respect of Peda Uppalam properties 6Fair Judgment in O.S.No.94/2012, dt. 04.05.2020 in the name of his brotherinlaw Gavara Narsinga Raju and his friend Peddireddy
Harinadh to avoid share of the defendant. When the defendant asked the same he got issued a legal notice and filed suit with false and untenable allegations to grab the self acquired property of defendant.
x)It is further averred that as the dispute in between family members with a view to avoid strained relations the defendant made efforts to pacify the bickering.
After knowing that the plaintiff going to file the suit the defendant filed caveat petition and issued reply notice dated 07.11.2011 to the plaintiff stating out the facts.
xi)It is further averred that as the plaintiff is nothing to do that the hotel business is not entitled for any profits over the same much less from 1989. Suit for partial partition is not maintainable. The estimation of profits at Rs.1,50,000/ towards the share of plaintiff is the highly exaggerated and unjust claim without any data as such plaintiff is not entitled for past profits at Rs.1,50,000/ per year for the last 3 years. Plaintiff is not entitled for any profits over the business nor partition of the plaint schedule property. The Court fee paid is incorrect, the suit is bad for mis joinder of cause of action and nonjoinder of necessary parties. On all these grounds prays to dismiss the suit.
4.Basing on the above rival pleadings, the following issues were settled for trial:
(1) Whether the plaint schedule property is the joint family property of plaintiff and defendant ?
(2)Whether the plaint schedule property is in joint possession and enjoyment of plaintiff and defendant ?
(3)Whether the suit is bad for Non Joinder of necessary parties in the suit i.e., mother and sister ?
(4)Whether the plaintiff is entitled for partition of plaint schedule property into 2 equal shares and allot one such share to the plaintiff ?
(5)Whether the plaintiff is entitled to past profits for the last 3 years prior to filing of the suit ?
(6)Whether the plaintiff is entitled for preliminary decree as prayed for ?
(7)To what relief ?
5.During the course of trial plaintiff himself got examined as PW1 and two 3rd parties by name Gavara Narsinga Rao and Badri Venkateswara Rao are examined as
PW2 and PW3, through PW1 got marked Ex.A1 to Ex.A6 and Ex.A7 to Ex.A13 marked in the Crossexamination of DW1.
7Fair Judgment in O.S.No.94/2012, dt. 04.05.2020
6.On behalf of defendant himself got examined as DW1 and five 3rd parties namely Asu Chandra Sekhar, Adapa Vera Venkata Satyanarayana, Thikkareddy
Satyanarayana, Ravanam Veera Venkata Satya Surya Bhaskara Rao (his evidence eschewed) and one K.Lakshman Rao, present Assistant Commercial Tax Officer,
Amalapuram are examined as DW2 to DW6. In the Crossexamination of PW1 and
PW2, Ex.B1 and Ex.B2 were marked. Through DW1 got marked Ex.B3 to Ex.B6 and through DW6 got marked Ex.X1.
7.On behalf of defendant submitted written arguments and on behalf of plaintiff submitted written repliy submission along with citations.
8.In the written arguments of defendant he reiterated his contention as mentioned in his written statement as well as in his evidence.
9.In the reply submissions made by plaintiff the plaintiff reiterated his case as mentioned in the plaint and in his evidence.
10.Issue No.1 to 3 :
Since Issue No.1 to 3 are interconnected to each other in order to avoid repetition of pleadings,evidence and discussion, issues No.1 to 3 are taken up for common discussion.
The case of the plaintiff is that both plaintiff and defendant are brothers and sons of Sri Marella Venkatrao and Mangayamma. Plaintiff, defendant and their father started hotel business in the year 1989 in a rented building. Widowed sister of plaintiff and defendant by name Nandyala Lalitha Kumari used to assist in running the said hotel. Mother of plaintiff and defendant advanced capital investment of the said hotel. Out of the income from hotel business plaintiff and defendant purchased old tiled house under Registered sale deed dated 30.05.1996/Ex.A1. Subsequently both plaintiff and defendant obtained Municipal plan approval for construction of building, accordingly they constructed a building up to 1st floor at first instance, the said building was assessed and given door number and also electricity connection. Then plaintiff and defendant started Sri Devi Hotel business in the said building. With the 8Fair Judgment in O.S.No.94/2012, dt. 04.05.2020 income from hotel business they constructed 2nd floor. Both plaintiff and defendant enjoying the plaint schedule property and maintaining the hotel jointly. They spent
Rs.5,00,000/ for expansion of meals section in 1st floor. While doing so after marriage of daughter of defendant and completion of studies of his son, defendant developed malicious intention to occupy the entire premises and business in his hands by engaging his son and soninlaw. Defendant failed to render accounts of hotel business, defendant being an elder member and Manager liable to render accounts since 1989. The defendant with malicious intention to prevent the plaintiff to participate in the hotel business closed the same for some time and after two months he started the said business. Then mediations were held by demanding the defendant for partition of the schedule property. But defendant postponed on one pretext or the other. Due to the act of defendant plaintiff became unemployee and having tender age children and he is also heart patient, hence plaintiff don’t want to keep the property in joint and issued legal notice on 12.09.2011/Ex.A.5 to the defendant seeking partition of plaint schedule property in to two equal shares and for allotment of one such share. After receipt of said notice defendant did not issue reply notice and failed to partition the property and business as demanded.
11.To establish the contention of the plaintiff himself examined as PW1 and two 3rd parties namely Gavara Narsinga Rao and Badri Venkateswararao were examined as
PW2 and PW3. PW1 in his evidence categorically deposed on par with the pleadings mentioned in the plaint, through him got marked Ex.A1 to Ex.A6 and in the Cross examination of DW1 got marked Ex.A7 to Ex.A13.
12.PW2 he is 3rd party and brotherinlaw of plaintiff, his evidence is to the effect that parents of plaintiff and defendant had six daughters and two sons i.e., plaintiff and defendant. This witness got married one of the sister of plaintiff by name
G.Ratnakumari in the year 1984. Father of plaintiff and defendant had no ancestral property. During the life time of father of both parties to the suit, they started hotel business in the year 1989 in a rented building at Amalapuram. Defendant was entrusted with management of the said business and obtained Registration Certificate 9Fair Judgment in O.S.No.94/2012, dt. 04.05.2020 (R.C) in his name originally. Capital investment was advanced by mother of plaintiff and defendant, who is motherinlaw to the witness from out of her savings. While so plaintiff and defendant purchased an old tiled house, subsequently removed the same and constructed a building up to 1st floor and shifted the hotel to the new building.
Defendant used to look after financial affairs and cash counter, where as plaintiff used to look after the kitchen. They constructed 2nd floor on the existing building with their income. Further defendant and plaintiff expanded business by investing more than
Rs.5,00,000/. Both defendant and plaintiff are enjoying the property and doing business jointly under the management of defendant. While so defendant with malicious intention mismanaged the business and failed to account for the business proceeds and misused the income by employing his son and soninlaw. The defendant being an elder member and as manager and custodian of the accounts since 1989, while so in the year 2011 defendant closed the hotel to prevent the plaintiff in participating the hotel business and without partitioning the property for some time, without consent of the plaintiff he reopened the hotel. So plaintiff demanded the defendant for partition of the property through mediators but he postponed on one pretext or the other. Hence the plaintiff filed the suit.
13.The PW2 further deposed that on his request to plaintiff and defendant, two house sites were purchased in the name of plaintiff. Those two properties are his properties, he obtained power from the owner so as to sale and account for the proceeds to the owner. While doing so he completely paid consideration to the owner and to avoid future complications he kept the properties in the name of plaintiff for some time and later at his instance plaintiff reexecuted sale deed in his favour. The said properties are not the properties of plaintiff.
14.The PW3 who is another 3rd party to the suit, his evidence is to the effect that he knows both plaintiff and defendant, he used to supply milk to their hotel, the said hotel was run by plaintiff and defendant jointly, he used to spend one or two hours every day in the hotel and got close acquaintance with both brothers. He used to assist them in the hotel business, the plaintiff used to look after kitchen and supply of 10Fair Judgment in O.S.No.94/2012, dt. 04.05.2020 food items and defendant used to do management of the hotel by sitting in the cash counter. He knows the said facts personally since he supplied milk to their hotel from 1989 to 2009. The plaintiff used to follow the directions of the defendant. At the early times sister of the plaintiff and defendant used to assist them by doing work in kitchen.
15.Coming to the contention of defendant he admitted the relationship with the plaintiff, but he denied the entire case of the plaintiff. Defendant contended that brotherinlaw of parties is behind to this litigation. House at Garapati street belongs to the father of the plaintiff and defendant and their father died intestate, the plaintiff intentionally avoided to seek partition of house property.
16.The defendant further contended that himself started business on 24.12.1989 during life time of his father. Plaintiff used to work as a Coolie in another Kirana shop. The defendant sympathetically allowed the plaintiff to assist him in hotel business, plaintiff used to maintain the accounts. Defendant purchased tiled house on 30.05.1996, but included name of plaintiff as he is his brother.
17.Sri Devi Hotel is a proprietary concern and defendant is exclusive owner of the same and it is not joint venture of plaintiff and defendant. Defendant himself improved the business. Plaintiff joined as a worker under defendant, defendant used to pay Rs.15/ per day during the year 1990, now he is paying Rs.250/ per day.
While so plaintiff secreted large amounts from hotel business purchased the property at Vizag District. Dispute was raised in the month of June, 2011 before elders.
Defendant came to know that the plaintiff snatched away the account books of hotel business. Then the elders chastised the plaintiff and settled the matter. As per the said settlement defendant has to leave house at Garapati street worth Rs.20,00,000/ and take half share of plaintiff in plaint schedule property which equally worth
Rs.20,00,000/, as per the settlement defendant residing in 2nd floor of plaint schedule property.
18.When coming to the aspect of partition of Vizag property plaintiff dodged and created nominal document. Then defendant filed caveat. Plaintiff is nothing to do 11Fair Judgment in O.S.No.94/2012, dt. 04.05.2020 with hotel business and not entitled for profits. Suit for partial partition is not maintainable.
19.To establish the said contention defendant himself examined as DW1 and five 3rd parties examined as DW2 to DW6, out of them the evidence of DW5 was eschewed as he did not turn up for examination. Through DW1 got marked Ex.B3 to Ex.B6 and
Ex.B1 and Ex.B2 marked in the Crossexamination of PW1 and PW2 respectively.
Through DW6 got marked Ex.X1.
20.DW1 in his evidence he categorically deposed on par with the pleadings mentioned in his written statement.
21.DW2 who is 3rd party and relative of both parties, his evidence is to the effect that initially defendant used to earn money by attending sandies and selling away soap cakes, Agarbathees etc. Father of the defendant was running Kirana business and closed the same in or about 1975, since then defendant looking after the management of the family. Plaintiff used to work in Kirana shop of Thikkareddy Mallaparaju.
Defendant approached father of this witness through Thikkareddy Prasanna
Satyanarayana and took their shop for oral lease on monthly rent of Rs.300/. This witness was present at the time of said transaction. Defendant started hotel business in the said premises in the year 1989 and continued till 1998. Defendant used to pay rent to the father of this witness by the date of vacating the premises the rent was
Rs.600/ per month. The plaintiff or his father did not approach the father of this witness to lease out their shop. This witness having photo studio near by the hotel of defendant, he used to visit the same at that time he observed that plaintiff used to sit in the cash counter, where as defendant used to work in the kitchen and used supply to the customers. With the contributions made by the friends of defendant he established the hotel and with the help of Satyanarayana Tent House, he secured equipment for the hotel.
22.DW3 who is 3rd party and relative to the both parties, his evidence is to the effect that after closer of Kirana business by the father of defendant in or about 1975 the defendant took management of the family. Plaintiff used to work in Kirana shop of 12Fair Judgment in O.S.No.94/2012, dt. 04.05.2020
Thikkareddy Mallaparaju. Father of the plaintiff had one residential house in Garapati street and mother of the parties got an extent of Ac.1.00 Cts in Challapalli Village.
Defendant started hotel business in the year 1989 in a rented premises and continued in the same premises till 1998. To the knowledge of this witness the plaintiff joined with the defendant after three months of establishment of the hotel to assist him on wages. But plaintiff used to manage the hotel business and defendant used to work in the kitchen and acted as supplier. With the contribution made by the friends of defendant, he started the hotel business and also secured the material for the said business.
23.DW3 further deposed that the dispute raised by the defendant before this witness, his father and other elders with regard to the misappropriation of amounts of hotel business by the plaintiff during his management and purchased properties at
Visakhapatnam, Yetikoppaka and other places. The elders ascertained the same and plaintiff admitted the same and promised to account for the same.
24.On that elders advised to partition the house property at Garapati street and hotel premises among them and directed the defendant to produce the record relating to the properties at Visakhapatnam. Plaintiff sought for some time and got issued legal notice. To the knowledge of this witness, brotherinlaw of both parties to the suit by name Gavara Narsinga Rao has not inherited properties from his ancestor. He was completely depending on his salary. Plaintiff did not inform to this witness and others about purchase of the properties in his name in the said sitting. To purchase the suit schedule property by defendant, father of this witness lent an amount of
Rs.1,00,000/ and Akula Yedukondalu lent an amount of Rs.1,00,000/ to the defendant.
25.DW4 who is also 3rd party to the suit and relative of both parties he deposed in the same lines as deposed by DW3.
26.DW5 who is also 3rd party to the suit his evidence was eschewed as he did not turn up after filing his affidavit in view of chief examination and to face Cross examination.
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27.DW6, who is 3rd party and working as Assistant Commercial Tax Officer,
Amalapuram since 2019. As per the evidence of this witness he produced original certificate of Registration relating to Sri Devi Coffee Hotel, Amalapuram along with its attested copies. In the said certificate the activity of business was recorded as proprietary concern. M.Mallaparaju was shown as its proprietor. Ex.A1 is the attested copy of Registration certificate. They recorded the statement of concerned proprietor
before issuing certificate under Ex.X1. They also used to collect license fee from him.
28.On consideration of pleadings, oral and documentary evidence of plaintiff it reveals that under Ex.A1/Registered sale deed dated 30.05.1996 plaintiff and defendant jointly purchased the plaint schedule property. As per Ex.A2/Plan approved by Municipality in the name of both plaintiff and defendant for regularization of existing building. Ex.A3/House Tax demand notice dated 03.06.2010 relating to suit schedule property was issued in the name of both plaintiff and defendant. Likewise
Property tax receipts under Ex.A4 was issued by Amalapuram Municipality in their name. As per Ex.A5/Legal notice dated 12.09.2011 plaintiff demanded the defendant for partition of plaint schedule property by claiming that it is their joint property. The said notice was received by defendant under Ex.A6. Ex.A7 is Triplicate copy of Invoice
dated 23.09.1997 issued by Srinivasa catering equipments, Adayar, Madras. Ex.A8 is
copy of Invoice issued by the said agency. Ex.A9 is the Receipt dated 08.09.1997 of
J.J.Transport, Madras in respect of delivery of kitchen equipment to the Hotel Sri Devi.
Ex.A10 is the Tax receipts four in number issued by Assistant Commercial Tax Officer,
Amalapuram in respect of Sri Devi Coffee Hotel. Ex.A11 is the Tax Receipt relating to
Sri Devi Coffee Hotel in which the names of both plaintiff and defendant were mentioned, thus the oral and documentary evidence on record clearly establishing that the plaint schedule property was purchased jointly by the plaintiff and defendant under Ex.A1, subsequently they constructed a two staired building by removing the old tiled house. Plan approval was also obtained in their name and also paid taxes in their name.
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29.Now coming to the contention of defendant he is denying the case of the plaintiff that the suit schedule property is joint property of plaintiff and defendant.
Defendant in his written submissions contended that he is started Hotel business in a rented house with the financial help of Y.Satyanarayana of Satyanarayana Tent House on 24.12.1989. By that time plaintiff was working as Coolie in another Kirana shop.
As the plaintiff did not settle in his life, the defendant out of sympathy allowed him to assist him in hotel business. The plaintiff was maintaining accounts and used to sit in the cash counter. Subsequently the defendant purchased a tiled house near by the rented daba house under Registered sale deed dated 30.05.1996 from Ravinoothala
Bhavani and others and shifted the said business to the tiled house. He further contended that due to sentimental reasons as the plaintiff being the brother of this defendant his name was included as purchaser in the sale deed. In fact the plaintiff has no means to purchase the property jointly along with this defendant. The defendant did not dispute about construction of building and payment of taxes in respect of the plaint schedule property. He further contended that Sri Devi Hotel is a proprietary concern and this defendant is exclusive owner of the said business. The plaintiff is neither a partner nor a sharer in the said business. The said business is the outcome of hard labor of the defendant and it is not the joint venture of the plaintiff and defendant. It is further contended that plaintiff joined as a worker under him and paid Rs.15/ per day towards his daily salary in the year 1990 and it was increased to
Rs.250/ per day. He further contended that plaintiff by taking advantage of innocence and ignorance of defendant secreted large amounts from daily collections and purchased some properties at Vizag District covered by Ex.A12 and Ex.A13.
30.The defendant further contended that admittedly the hotel business stands in the name of defendant only and taxes are being paid by him in his name. Admittedly name of plaintiff is reflected in the business record. Purchase of equipment for business is in the name of Sri Devi Hotel but not in the name of plaintiff. Thus it is clear that the plaintiff is no way concern with the business, as such the source of income for purchase of the schedule property is not from any independent income of 15Fair Judgment in O.S.No.94/2012, dt. 04.05.2020 the plaintiff, simply because name of the plaintiff is shown in sale deed nominally on account of sentimental reason. The plaintiff is not entitled to claim share in the property. The tax receipts do not establish title to the property. Plaintiff failed to establish that he is joint proprietor of Sri Devi Hotel business and he is not entitled for profits.
31.For the said contention, on behalf of plaintiff in their reply submissions contended that the plaintiff admitted that Ex.A1/Registered sale deed dated 30.05.1996 in respect of plaint schedule property stands in the name of plaintiff and defendant. The contention of the defendants is that what is apparent under the sale deed is not real and reality is something else. If that something else has not been proved to the satisfaction of the Court, the reality only subsists and alone has to be taken into consideration. Ex.A1 produced by plaintiff as it was in his custody. Ex.A2 to Ex.A11 clearly and categorically disclosed that the property enjoyed jointly and taxes paid jointly, building plan was obtained jointly and building was also constructed jointly. In view of the same defendant cannot be permitted adduce oral evidence contra to the recitals of documents.
In support of said contention he relied on the decision in case of Ramchander Vs. Mangal Singh and another reported in AIR 1981 Panjab and Haryana in the said decision the Hon’ble High Court of Panjab and Haryana in para No.3 pleased to held as follows :
“3. Mr. Sarin, learned counsel for the petitioner has very rightly argued that the appellate Authority has fallen in a patent error in ignoring the documentary evidenced of lease, i. e., Rent Note (Exhibit A2) and given preference to oral evidence of witnesses to hold that the shop was actually let to Balbir Singh and not to Mangal Singh. In this context, the provision of Section 92 of the Evidence Act have been ignored by the Appellate Authority, according to which when the terms of a contract or other disposition of property had been reduced into writing, oral evidence to vary such terms is barred. Of course, if the case had been brought under any of the provisos to Section 92, the bar in this respect could be waived. This, however, is not the case on behalf of the tenants. On the other hand, they have persisted in their stand that the Rent Noe was a sham transaction. Be that as it may, even though the subtenant, i. e., Balbir Singh chose to occupy the shop in dispute on the basis of Rent Note executed by Mangal Singh as a tenant, he is presumed to be alive to the risk of his eviction on the ground of subtenancy and he cannot turn round and take the plea that the Rent Note was a sham transaction. The ground of subletting, therefore, stands amply proved and the Rent controller was quite justified in ordering the eviction of the tenant on that score.” 16Fair Judgment in O.S.No.94/2012, dt. 04.05.2020
In case of Satyanarayana Shah and others Vs. Star Company Ltd., and another reported in AIR 1984 Calcutta 399 at para No.15 pleased to held as follows :
“15. Coming to the next point it has been argued by Mr. Ghose in elaborating his first point that oral evidence to the contrary is not admissible when there is a written instrument. Mr. Ghose on this point, has relied upon a case reported in (1899) 27 Tnd App 58. It is a case where the deed of sale was repurchased and the right to redeem the mortgage, oral evidence of intention is inadmissible for the purpose either of construing the deeds or of proving the intention of the parties in view of Section 92 of the Evidence Act. In the Privy Council written instrument itself projected the intention of the parties and, therefore, the question of oral evidence on that score is not admissible. In that view of the matter, in our opinion, the Privy Council decision does not support Mr. Ghose's contention in the facts and circumstances of the case. We now refer to the document in order to see whether the judgment as hereinbefore discussed has any application to. the facts of this case.”
32.In view of ratio laid down in the above decisions the oral evidence of intention is inadmissable for the purpose of construing a deed.
33.In the case on hand admittedly as per recitals of Ex.A1/Sale deed dated 30.05.1996 the plaint schedule property was purchased by plaintiff and defendant.
On perusal of recitals of the said documents there is no mention that the name of the plaintiff was also shown due to sentimental reasons and relationship with the plaintiff as contended by defendant. Ex.A2/Approved plan, Ex.A3/Property tax demand notice,
Ex.A4/property tax receipt and Ex.A11/ Municipal Tax receipt were stands in the name of both plaintiff and defendant. If really as contended by defendant, plaintiff and himself were not purchased the property jointly under Ex.A1 then question would arise that why the name of plaintiff was also shown in Ex.A2 to Ex.A4 and Ex.A11. For which defendant contended that basing on the title deed name of the plaintiff was mentioned in the tax receipt. The defendant in his written statement he did not state how he secured the funds to purchase the plaint schedule property, but in his Chief examination he stated that he purchased the said property with his own hard earnings without concern to the plaintiff. But in his Crossexamination he stated that he borrowed amount of Rs.1,00,000/ from one Adapa Nageswara Rao and an amount of
Rs.1,00,000/ from one Akula Venkanna Babu and remaining sale consideration amount out of the sale proceeds of the property of his wife. There is no proof to that 17Fair Judgment in O.S.No.94/2012, dt. 04.05.2020 effect. He executed promissory notes in favour of Adapa Nageswara Rao and Akula
Venkanna Babu. He discharged part of the debts to them and still there is a due to be paid to them. He did not produce any documentary proof to that effect. Admittedly except the hotel business running in the suit schedule property there was no other source of income to the defendant. In the written statement the defendant stated that due to sentimental reasons as the plaintiff is his brother he included name of the plaintiff as purchaser in Ex.A1. But in the Crossexamination of DW1 he stated that one Adapa Nageswara Rao, Nuni Sathi Raju and Annabathula Babu Rao advised him to obtain document in the name of defendant and plaintiff, hence he obtained the document in the name of both of them. There is no mention about the same in the sale deed/Ex.A1. Though the defendant contended that he paid the entire sale consideration amount under Ex.A1, but there is no mention of the same in Ex.A1. In view of foregoing discussion and in view of ratio laid down in the above referred citation the contention of the defendant that he alone paid sale consideration under
Ex.A1 cannot be accepted.
34. Coming to the another aspect, about the dispute raised before elders, the defendant contended that since the plaintiff secreted large amounts from daily collections and purchased properties at Visakhapatnam District under Ex.A12 and
Ex.A13, the elders settled the matter stating that defendant had to leave the house at
Garapati street worth of Rs.20,00,000/ to his share and take half share of the plaintiff in the building i.e., plaint schedule property, where he has been residing and running hotel, which is also equally worth of Rs.20,00,000/ to the share of the defendant.
The said contention was pleaded in para No.22 of written statement of the defendant.
Further he deposed the same in his evidence as DW1 and also admitted the same in his
Crossexamination at page No.12 and 13. The defendant in his written arguments submitted that no where in para No.22 of written statement defendant admitted the share in the schedule property. Further stated that the settlement arrived as per the advise of five elders and others. Peculiarly the plaintiff gives a go bye to the said settlement but relies on the result of the said settlement without admitting the same.
18Fair Judgment in O.S.No.94/2012, dt. 04.05.2020
Hence plaintiff is not entitle to rely on the terms of settlement. In the written arguments the defendant categorically contended that by virtue of the family arrangement defendant is in possession of the schedule property. The plaintiff categorically denied about the said dispute raised in the month of June, 2011 and effecting of partition as pleaded by defendant. In this case none of the elders, whose names are mentioned in the written statement were examined by defendant. Further there is no documentary proof with regard to the said settlement effected by elders.
Under these circumstances the contention of the defendant that there was a family arrangement in between defendant and plaintiff at the instance of elders and in the said arrangement plaint schedule property was allotted to the share of defendant cannot be accepted. The oral and documentary evidence on record is clearly establishes that defendant himself admitted that plaintiff had half share in the plaint schedule property.
35.Another contention of defendant is that himself, plaintiff have got six sisters and widowed mother. Their father late Venkatrao died in the month of October, 2002, since then plaintiff and defendant are in exclusive possession and enjoyment of house at Garapati street with their mother. The plaintiff intentionally avoided to ask for partition of said property and confining himself for partial partition of the properties of the defendant. For the said contention plaintiff in his plaint itself at para No.15 he has categorically stated that himself and defendant had six sisters and widowed mother.
Their mother had Ac.1.00 Cts of Stree dhana property which is her stree dhana and self acquired property. After demise of their father, their mother residing in the house purchased by their father and eaking out lively hood on her property of Ac.1.00 Cts.
Hence the plaintiff restricted his claim to partition of self acquired properties of plaintiff and defendant and reserving the right to seek partition of self acquired properties of his father at a later stage. Hence mother of the defendant and sisters are not necessary parties for partition of plaint schedule property.
36.There is no dispute from defendant that house property at Garapati street was the self acquired property of his father and it has been in the possession of plaintiff, 19Fair Judgment in O.S.No.94/2012, dt. 04.05.2020 defendant and their mother. In view of specific contention of the plaintiff that he sought for partition of self acquired properties of plaintiff and defendant. In view of foregoing discussion this Court holds that non seeking of partition of the self acquired properties of their father and for not adding their mother and sisters is not fatal and bad under Law.
37.The another contention of the defendant is that the plaintiff with secreted amounts in hotel business, purchased properties at Vizag District under Ex.A12 and
Ex.A13. For which defendant raised dispute in the presence of elders in the month of
June, 2011 in the said mediation the plaintiff admitted about misappropriation of amounts and agreed to abide by the decision of the elders. It is further contended that the elders advised both parties to effect partition of the properties purchased by the plaintiff at Vizag District and directed the parties to have exclusive rights over the respective houses where they are residing. Accordingly elders settled the matter. As per the contention of the defendant as per the said settlement he has been in exclusive possession of the plaint schedule property as it fell towards his share in the said settlement and the said settlement was acted upon. The plaintiff has categorically denied the said contention and at his instance only a mediation was held with the assistance of elders, when the defendant avoided him to participate in the hotel business. In this case the defendant did not examine the elders whose names were mentioned in the written statement. Further there is no proof with regard to the quantum of misappropriated amounts by the plaintiff from hotel business and also the duration. Except for oral statement of the defendant there is no documentary proof with regard to the misappropriation of the amounts by the plaintiff. It is the case of the defendant that he was paid Rs.15/ per day towards daily salary during the 1990 and it has increase Rs.250/ per day. The said contention also denied by the plaintiff.
Further defendant did not place any documentary proof that the plaintiff has been entrusted with management of accounts and looking after the cash counter of hotel business. Under these circumstances the contention of the defendant that the plaintiff secreted the amounts and purchased the properties at Vizag District covered by Ex.A12 20Fair Judgment in O.S.No.94/2012, dt. 04.05.2020 and Ex.A13 cannot be accepted. Further with regard to the properties kept in the name of plaintiff under cover of Ex.A12 and Ex.A13 the plaintiff has categorically explained in his evidence that those properties were kept in his name by his brotherin law by name Gavara Narsinga Rao/PW2 due to family problems of his brotherinlaw and again the said properties were reconveyed to his brotherinlaw. Further PW2 also categorically stated that the circumstances under which the said properties were kept in the name of plaintiff and reexecution of sale deeds in his favour under Ex.B1 and under Ex.B2 in favour of one Peddiredla Harinadh. If really plaintiff purchased the properties with the secreted amounts from hotel business and purchased the properties at Vizag District and in the mediation elders advised for partition of the said properties between plaintiff and defendant and if plaintiff dodged to do so, then nothing prevented the defendant to take further steps in accordance with Law. But no such steps had been taken by the defendant till date. Under these circumstances the contention of the defendant that plaintiff misappropriated the amounts from hotel business and purchased the properties under Ex.A12 and Ex.13 cannot be accepted.
38.In view of foregoing discussions this Court holds that the plaint schedule property is that joint property of plaintiff and defendant and they are in joint possession and enjoyment of the same. Further the suit is not bad for non joinder of necessary parties i.e., mother and sisters in the suit. Accordingly, issue No.1 to 3 are answered in favour of plaintiff and against defendant.
39.Issue No.4 to 6 :
On Issue No.1 and 2 this Court categorically held that the suit schedule property is the joint property of plaintiff and defendant and they are in joint possession and enjoyment of the same. As per the admitted case of the defendant he has been running the Coffee hotel in the ground floor and residing in the upstairs since
June, 2011. As per the case of the plaintiff, the defendant is liable to render the accounts of hotel business since 1989 but he restricted his claim to the past 3 years to the date of filing of the suit. In view of my findings on Issue No.1 to 3 the plaintiff is entitled for partition of plaint schedule property in to two equal shares and for 21Fair Judgment in O.S.No.94/2012, dt. 04.05.2020 allotment of one such share. Further plaintiff is entitled to direct the defendant to account for the assets of the business i.e., Sri Devi Hotel and past profits for the last 3 years to the date of filing of the suit and future profits from the date of filing of the suit till the date of delivery of possession of plaintiff’s share which will be determined on separate applications. In view of the same the plaintiff is entitled for preliminary decree as prayed for. Accordingly Issues No.4 to 6 are answered in favour of plaintiff and against defendant.
40.Issue No.7:
In view of my findings on Issue No.1 to 6 the suit is to be decreed as prayed for.
In view of relationship between the parties there is no orders as to costs.
41.In the result, the suit is preliminarily decreed without costs;
i)by directing the division of plaint schedule property in to two equal shares and for allotment of one such share to the plaintiff by metes and bounds and good and bad qualities; ii)by directing the defendant to account for the assets of the Sri Devi Hotel business and plaintiff is entitled for past profits for the last 3 years prior to the date of filing of the suit and also future profits from the date of the suit till the date of realization of plaintiff’s half share in the schedule property which will be determined on the separate applications.
Dictated to Stenographer, transcribed by her, corrected and pronounced by me in
the open Court on this the 4 th day of May, 2020.
SENIOR CIVIL JUDGE,
AMALAPURAM.
Appendix of Evidence. Witnesses Examined. F OR P LAINTIFF : PW.1 : Marella Sairam
PW.2 : Gavara Narsinga Rao
PW.3 : Badri Venkateswara Rao
F OR D EFENDANT : DW.1 : Marella Mallaparaju
DW.2 : Asu Chandra Sekhar 22Fair Judgment in O.S.No.94/2012, dt. 04.05.2020
DW.3 : Adapa V.V.S.Suryanarayana
DW.4 : Tikkireddi Satyanarayana
DW.5 : Ravanam Veera Venkata Satya Surya Bhaskara Rao (eschewed)
DW.6 : K.Lakshmana Rao (ACTO, AMP)
Documents Marked. F OR P LAINTIFF : Ex.A1 is the Original Registered Sale deed dated 30.05.1996 Ex.A2 is the Original Approved plan dated 27.03.1999 issued by the Municipality, Amalapuram Ex.A3 is the Original House tax demand notice dated 03.06.2010 issued by the Municipality, Amalapuram Ex.A4 is the Tax receipt dated 19.01.2010 issued by the Municipality, Amalapuram Ex.A5 is the Office copy of legal notice dated 12.09.2011 Ex.A6 is the Postal acknowledgment dated 17.09.2011 Ex.A7 is the Triplicate delivery receipt Ex.A8 is the invoice issued by Srinivasa Catering equipments in the name of M/s. Hotel Sri Devi, dated 19.08.1997 Ex.A9 is the Transport delivery note issued by J.J.Transports, Madras,
dated 18.09.1997
Ex.A10 is the Commercial Tax receipts issued in the name of Sri Devi Hotel (four in number) Ex.A11 is the Tax receipt, dated 03.08.1998 Ex.A12 is the meeseva copy of sale deed dt.03.12.2009 Ex.A13 is the meeseva copy of sale deed dt.03.12.2009
F OR D EFENDANT : Ex.B1 is the Registration extract of sale deed dated 21.07.2011 executed by Marella Sairam in favour of Gavara Narsimha Rao Ex.B2 is the Registration extract of sale deed dated 21.07.2011 executed by Marella Sairam in favour of Peddiredla Harinadh Ex.B3 is the Office copy of reply notice issued to the Plaintiff, dated 07.11.2011 Ex.B4 is the Postal acknowledgment received from plaintiff’s counsel Ex.B5 is the Office copy of Caveat filed by the defendant Ex.B6 is the Office copy of Caveat filed by the defendant.
Ex.X1 is the Attested copy of registration certificate of Sri Devi Coffee Hotel, Amalapuram (compared with original by Court).
S.C.J.
23Fair Judgment in O.S.No.94/2012, dt. 04.05.2020
Plaint presented on 17.10.2011. Plaint registered on 25.04.2012.
IN THE COURT OF THE SENIOR CIVIL JUDGE: AMALAPURAM
P RESENT : S RI Y.N AGARAJA ,
Senior Civil Judge, Amalapuram.
Monday, the 4th day of May, 2020.
ORIGINAL SUIT No.94/2012
Between: Marella Sai Ram, S/o Venkatarao, Business, 47 Years, D.No.8154, Garapati Veedhi, Girappa Sandhu, Amalapuram, East Godavari District.…Plaintiff
AND
Marella Mallaparaju @ Babji, S/o Venkatarao, Business, 52 Years, D.No.1653, KNF Road, Mummidivaram, Gate Center, Amalapuram, E.G.District.…Defendant
This is the suit filed to pass a decree and Judgment in favour of plaintiff and against the defendant for partition of plaint schedule property in to two equal shares by metes and bounds according to good and bad qualities and for allotment of one such share to the plaintiff and to put him in separate possession of the same by passing final decree; by directing the defendant to account for the assets of the business and past profits for the last 3 years prior to filing of the suit in respect of Sri Devi Hotel business; Further to direct the defendant to account for future profits on the schedule property and the hotel business carried on jointly from the date of suit till the date of realization of plaintiff’s half share in the schedule property and to award costs of the suit.
Value of the suit: The value of the plaint schedule property as per basic register value maintain by S.R.O., Amalapuram is …Rs.8,47,800/ Value of the plaintiffs half share…Rs.4,23,900/ 3/4th value therein is…Rs.3,17,925/ For accounting of past profits for 3 years On plaintiffs half share in the business run and the assessment of business in the schedule property plaintiff tentatively values his ½ share…Rs.4,50,000/ Total value of the suit is …Rs.7,67,925/ A Court fee of Rs.200/ under section 34(2) of A.P.C.F. & SV Act.
Cause of action for the suit arose when the plaintiff and defendant started hotel business during the year 1989 with the funds advanced by their mother Mangayamma and later they developed the business and from out of the income derived out of the business purchased the plaint schedule property on 30th May, 1996 24Fair Judgment in O.S.No.94/2012, dt. 04.05.2020 and subsequently demolished the tiled house and constructed two stored building with the permission of the Municipality in the name of the plaintiff and defendant and paying the taxes jointly and carrying on hotel business jointly in the said premises and subsequently after discharging the liabilities of the defendant developed malicious intention to convert the joint business into separate business and to drive the plaintiff and since last three years when the defendant being in management of business failed to render the account of profits on the business and about two months back when defendant locked the hotel and subsequently opened it and carrying business and subsequently when the plaintiff demanded for partition of the schedule property through elders and family members and also through lawyer’s notice dt.12.09.2011 and when the defendant failed to give reply and partition the properties as demanded which are all within the jurisdiction of this Hon’ble Court at Amalapuram Village where the property is situated and parties are residing.
This suit is coming on 11.03.2020 for final hearing before me in the presence of Sri K.Mallapa Raju, Advocate for the Plaintiff and of Sri V.Nageswara Rao, Advocate for the Defendant, and the matter having stood over for consideration, till this day, this Court DOTH ORDER and PRELIMINARY DECREE as follows :
i.that the suit be and the same is hereby preliminarily decreed; ii.that by directing the division of plaint schedule property into two equal shares and for allotment of one such share to the plaintiff by metes and bounds and good and bad qualities; iii.that by directing the defendant to account for the assets of the Sri Devi Hotel business and plaintiff is entitled for past profits for the last 3 years prior to the date of filing of the suit and also future profits from the date of the suit till the date of realization of plaintiff’s half share in the schedule property which will be determined on the separate applications; iv.that the both parties be and are hereby directed to bear their own costs.
Copy of plaint schedule is herewith attached.
Given under my signature and seal of this court on this the 4th day of May, 2020 .
SENIOR CIVIL JUDGE,
AMALAPURAM.
Particulars of costs
For Plaintiffs : NilFor Defendants : Nil
No costs memo filed No costs memo filed
S.C.J.
Copy of plaint schedule is herewith attached.