HONOURABLE SMT. JUSTICE P.SREE SUDHA
APPEAL SUIT No. 763 of 2009
JUDGMENT:
This appeal is preferred by the plaintiff, under Section 96 of the C.P.C., against the judgment and decree passed in O.S.No.10 of 2006 dated 07.04.2009 on the file of the II- Additional District Judge, Nalgonda at Suryapet.
Appellant herein is plaintiff; respondent Nos.1 to 14 herein are defendants in the suit. During the pendency of the appeal, respondent No.5 herein (defendant No.5) died and respondents 15 to 17 herein were impleaded as her legal representative. For the sake of convenience, the parties will be referred to as arrayed before the trial Court.
The facts, in brief, are as under:
The plaintiff filed the suit for partition and separate possession of the suit scheduled properties into three equal shares and for allotment of one such share to him. In the plaint, it is stated that the plaintiff is the son and defendant 2 No.2 is the daughter of defendant No.1 and they constitute as members of an undivided Hindu joint family; that there are ancestral properties and the name of their grandfather viz., Ramaswamy was recorded as pattadar and possessor; that the said Ramaswamy died in the year 1962 while his wife predeceased him; that there was no division of the joint family properties between plaintiff and defendants 1 and 2; that the plaintiff and defendants 1 and 2 are in joint possession and the other defendants are strangers to the family and they have nothing to do with the suit scheduled properties; that defendant No.1 had been acting detrimental to the interest of the plaintiff and had been making false claims that the plaintiff has no right in the suit scheduled properties and that the plaintiff and defendants 1 and 2 are entitled to 1/3rd share each in the suit scheduled properties. It is further stated that when the plaintiff demanded for partition with defendants 1 and2, they declined to effect partition. Hence, the suit.
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In the written statement filed by defendant Nos.1 and 2, it is stated that the suit scheduled properties are not the family properties of plaintiff and defendants 1 and 2 and there was no joint possession of the properties; that the other defendants had purchased item Nos.1 to 5 of the plaint 'A' scheduled lands from the plaintiff and defendant No.1 and they are in exclusive possession and enjoyment of their respective lands; that there are no joint family properties to be partitioned between the plaintiff and defendants 1 and 2 as on the date of filing of the suit and that the plaintiff is not entitled to any share in the plaint 'A' scheduled properties. It is further stated that the plaintiff or defendants 1 and 2 are not in joint possession of plaint 'A' scheduled properties and as such fixed Court Fee cannot be paid. Defendant No.1 gifted away the land to an extent of Ac.1.00 in Sy.No.199/AA, which is part of item No.6 of plaint 'A' scheduled property to defendant No.2 through registered gift deed No.1386/1997 dated 31.03.1997 and 4 delivered possession of the said land and since then defendant No.2 has been in exclusive possession and enjoyment of the said land. Defendant No.1 had also given Ac.1.03 guntas of land in Sy.No.199/A, which is part of item No.6 of plaint 'A' scheduled property to defendant No.2 towards Pasupu Kumkuma about 15 years back and she has been in possession of the same. The revenue authorities had also issued pattadar passbook and title deeds to defendant No.2 about 11 years back and she is paying land revenue to it. It is further stated that some disputes arose between the plaintiff, defendant Nos.1 and 2 regarding discharge of debts, performing marriage of defendant No.2 and that the elders settled the dispute and an agreement was also executed on 26.04.1997, which contains the signature of the plaintiff, and the same was attested by elders and defendant No.1 affixed his thumb impression on it. Subsequently, the plaintiff played fraud upon defendant No.1 and obtained thumb impressions of defendant No.1 on a document 5 without disclosing the contents of it. Thereafter, defendants 1 and 2 came to know that the plaintiff got it registered as Gift Settlement Cancellation Deed. The revenue authorities had also issued pattadar pass book and title deeds to the plaintiff and defendant No.2 respectively to an extent of Ac.1.03 gts. each out of Sy.No.199/AA about 11 years back. It is further stated that the plaintiff forcibly took the pattadar passbook of defendant No.1 and used the same for taking loans. It is further stated that as there are no properties to be partitioned out of plaint 'A' scheduled properties, defendants 1 and 2 were not interested to contest the suit and they never engaged an advocate and thereafter they came to know that the plaintiff got filed vakalat and written statement through one M.Narendra Kumar, advocate, Nalgonda, in their names by forging their thumb impressions and signatures and since the plaintiff has filed the suit with a mala fide intention to extract money from them, they prayed the Court to dismiss the suit. 6
In the written statement filed by defendant No.3, it is stated that defendant No.1 sold an extent of Ac.2.00 out of Sy.No.674/A, which is item No.2 of plaint 'A' scheduled land, to one Kandaraboina Gopaiah through an agreement of sale dated 02.06.1965 for valid consideration and after the death of said Gopaiah, defendant No.1 had executed a registered sale deed No.1539/1986 dated 13.06.1988 in the name of his son Kandaraboian Somaiah, who is the father of defendant No.3, and possession of the said land was delivered to the grandfather of defendant No.3 on 02.06.1965 itself by defendant No.1. Plaintiff was well aware of the said sale transaction as he was the 1st attester and also the identifying witness before the Sub Registrar, Kodad, at the time of registration of the of the said document. The revenue authorities had issued pattadar passbook and title deed No.105231 in the name of said Somaiah about 15 years back and that he was in exclusive possession and enjoyment of the said land during his life time and after the death of 7 his father, defendant No.3 became the absolute owner of the said land as he is the only son to his father. It is further stated that plaintiff or defendants 1 and 2 have no right, title or interest over item No.2 of plaint 'A' scheduled property and, therefore, requested the Court to dismiss the suit.
In the written statement filed by defendant No.5, it is stated that defendant No.5 has purchased item Nos.3 and 4 plaint 'A' scheduled properties through an agreement of sale dated 23.02.1974 from defendant No.1 for valuable consideration and that he has been in continuous possession and enjoyment of the same for the last 35 years and that he has raised Mango garden in the said lands about 25 years back and the same is in existence till today; that the name of the 5th defendant was recorded as pattadar and actual cultivator in all the revenue records and that the revenue authorities had issued 13-B patta certificate No.J/977/1994 dated 18.03.1994 in his favour. It is further stated that the plaintiff was aware of the said transaction as he had put his 8 signature as 1st witness in the statement recorded by the then M.R.O. Kodad for issuing patta certificate and subsequently, the 5th defendant was issued pattadar passbook and title deed No.417821. It is further stated that plaintiff or defendants 1 and 2 have no right, title or interest over items Nos.3 and 4 of plaint 'A' scheduled properties and therefore, requested the Court to dismiss the suit.
In the written statement filed by 6th defendant, it is stated that defendant No.1 and his minor son (Plaintiff) have jointly sold item No.5 of plaint 'A' scheduled property to one Mohammad Zaheera Bee on 15.12.1972 and executed a registered sale deed No.5091/1975 dated 26.12.1975, who in turn sold the said land to one Yelagandula Sowbhagyamma under a registered sale deed No.2504/77 dated 31.08.1977 and delivered possession of the said land to her and thereafter defendant No.6 purchased the same from the said Sowbhagyamma through an agreement of sale about 25 years back for valid consideration and that the 9 revenue authorities had issued 13-B patta certificate No.H/358/91 dated 20.07.1991, pattadar passbook and title deed No.101198 in his favour. It is further stated that plaintiff and defendant Nos.1 and 2 have no right, title or interest over item No.5 of plaint 'A' scheduled property and, therefore, requested the Court to dismiss the suit.
Defendant No.7 filed a written statement contending that the plaintiff and his father have sold away Ac.2.98 cents to him and jointly executed a registered sale deed No.444/1993 dated 04.02.1993 in his favour and delivered possession of the said land and since then he has been in possession and enjoyment of the same and his name was also recorded as owner and possessor in the revenue records in respect of the said land and, therefore, prayed to dismiss the suit.
In the written statement filed by defendant No.8, it is contended that plaintiff and his father have sold away Ac.0.68 ½ cents situated at Kodad village under a registered 10 sale deed No.296/1990 dated 19.02.1990 in his favour and since then he has been in possession and enjoyment of the said land and, therefore, requested the Court to dismiss the suit.
During trial, the plaintiff examined himself as P.W.1 and got marked Exs.A-1 to A-16. On behalf of the defendants, D.Ws.1 to 8 were examined and got marked Exs.B-1 to B-32.
The trial Court, after considering the entire evidence available on record and also the submissions made by the learned Counsel appearing on either side, dismissed the suit of the plaintiff against defendant Nos.3 to 14 and also in respect of plaint 'A' and 'C' scheduled properties. A preliminary decree has been passed for partition of plaint 'B' schedule house property only into three equal shares and that the plaintiff, defendant Nos.1 and 2 are entitled to take separate possession of one such share each. 11
Aggrieved by the aforesaid judgment and decree of the trial Court, the present appeal has been preferred by plaintiff, inter alia, contending that entire suit scheduled property is the ancestral property of his grandfather and his name was shown as possessor in the pattadar passbook; that the trial Court basing on simple sale deed (unregistered Vikrayanama), which is not valid under Section 17 of the Registration Act, rejected his claim; that when he demanded his father (defendant No.1) to distribute the properties, he obtained his signatures in the agreement dated 26.04.1997 under the influence of police and the same was not considered by the trial Court; that the ancestral properties of his grandfather were declared before the ULC authorities in the year 1974 and as such the sale deeds executed by his father in favour of other defendants are not valid; that the trial Court failed to consider Exs.A1 to A16 documents filed by the plaintiff; that the issues were not framed properly by the trial Court; that the trial Court failed to see that 12 defendant No.1 sold away item Nos.1 to 5 of plaint 'A' scheduled property to other defendants about 20 years back by creating false sale deeds in order to avoid his legitimate right over the property in question. It is further contended that the trial Court erroneously dismissed the suit without appreciating the evidence on record in proper perspective and, therefore, the judgment and decree of the trial Court is liable to be set aside.
Heard the learned Counsel appearing on either side and perused the entire material placed on record.
The plaintiff, who was examined as P.W1, filed his chief-examination affidavit reiterating the contents of the plaint. In his cross-examination, he admitted that he is practicing as an advocate at Nalgonda since 2001 onwards and that there were certain disputes between him and defendants 1 and 2 for the past 14 years. He denied the suggestion that he has attested the sale deed dated 13 13.06.1986 and also an identifying witness before the Sub Registrar, Kodad. He categorically admitted that a passbook was issued in his favour for Ac.1.03 gts. covered by item No.6 of plaint 'A' scheduled property and likewise title deeds and passbooks were also issued in favour of defendants 1 and 2 in respect of said land of Ac.1.03 gts each about 14 years back. It was suggested to plaintiff by defendants 1 and 2 that defendant No.1 executed a gift deed in favour of defendant No.2 in respect of Ac.1.00 out of Ac.1.03 gts. towards Pasupu Kumkuma on 31.03.1997, to which, the plaintiff simply denied the same. However, he added that defendant No.1 had executed cancellation of said gift deed within three months. He denied the suggestion that a mediation took place and the elders advised him not to interfere with the property of defendant No.2 and that the elders got executed a document on 26.04.1997, however, he stated that the said document does not contain his signature. He further denied a suggestion 14 that defendants 1 and 2 and his mother gave a complaint in Lok Adalat, Kodad, and that he has attended before the Lok Adalat and gave an undertaking. He further denied a suggestion that defendant No.1 sold away item No.3 and 4 of 'A' schedule property to defendant No.5 under an agreement of sale dated 23.02.1974 and that he attested the said agreement. He also denied the suggestion that the M.R.O., Kodad, issued title deed and pattadar passbook to defendant No.6 in respect of item No.5 in 1991 itself and that defendant No.1 sold away item No.1 to defendant Nos.7 and 8 about 25 years back under a registered sale deed. He further denied the suggestion that item Nos.1 to 5 are shown as joint family properties even though they were sold away long back and that he has not filed the latest pahanies intentionally. However, he admitted that his grandfather died in 1962.
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Defendant No.3, who was examined as D.W.1, stated that defendant No.1 sold an extent of Ac.2.00 out of Sy.No.674/A, which is item No.2 of plaint 'A' scheduled land, to his grandfather, Kandaraboina Gopaiah, under an agreement of sale dated 02.06.1965 for valid consideration and after death of said Gopaiah, defendant No.1 had executed a registered sale deed dated 13.06.1988 in the name of his son Kandaraboian Somaiah, who is his father, and after death of his father, he became the absolute owner of the said land and that he has filed EXs.B1 to B25 documents to prove his case. In his cross-examination, he denied the suggestion that the plaintiff and defendants 1 and 2 are cultivating the lands jointly and that they are residing in one house.
Defendant No.5, who was examined as D.W.2, stated in her evidence that she has purchased item Nos.3 and 4 of plaiant 'A' schedule properties under an agreement of sale 16 dated 23.02.1974 from defendant No.1 for valid consideration; that she has been in possession and enjoyment of the same for the last 35 years; that her name was recorded as pattadar and actual cultivator in the revenue records and thereafter the revenue authorities issued pattadar pass book and title deeds in her name after following due procedure and after collecting stamp duty and registration fee from her. She further stated that the plaintiff or defendants 1 and 2 have no right, title or interest over item Nos.3 and 4 of plaint 'A' schedule properties and that she filed Exs.B26 to B39 to prove her case.
Defendant No.6, who was examined as D.W.3, stated in his evidence that defendant No.1 and his minor son (Plaintiff) sold item No.5 of plaint 'A' scheduled property to one Mohammad Zaheera Bee on 15.12.1972 and executed a registered sale deed dated 26.12.1975, who in turn sold the said land to one Yelagandula Sowbhagyamma under a 17 registered sale deed dated 31.08.1977 and delivered possession of the said land to her and thereafter he purchased the same under an agreement of sale about 25 years back for valid consideration and that the revenue authorities had issued 13-B patta certificate No.H/358/91 dated 20.07.1991, pattadar passbook and title deed No.101198 in his favour. It is further stated that plaintiff and defendant Nos.1 and 2 have no right, title or interest over item No.5 of plaint 'A' scheduled property. He filed Exs.B-40 to 48 documents to prove his case.
Defendant No.1, who was examined as D.W.4, stated in his evidence that the other defendants purchased item Nos.1 to 5 of plaint 'A' schedule lands from him and plaintiff and that they are in exclusive possession and enjoyment of their respective lands and as such the plaintiff is not entitled to any share in and out of plaint 'A' schedule properties. He further stated that he along with plaintiff 18 and defendant No.2 are not in joint possession of plaint 'A' scheduled properties. He further stated that the plaintiff has to file a suit for recovery of possession in respect of plaint 'A' schedule properties by paying sufficient Court Fee on the present market value of the lands. He further stated that there are no gold ornaments at all as mentioned in plaint 'C' schedule. He stated that he gave an extent of Ac.1.00 gts out of Sy.No.199/AA (part of item No.6 of plaint 'A' schedule under a registered gift deed dated 31.03.1997 to his daughter (defendant No.2). The plaintiff got executed a registered Gift Settlement Cancellation deed by playing fraud; that the plaintiff beat him, his wife and defendant No.2 mercilessly for several time and also harassed them and also obtained his thumb impressions on several papers and created documents; that the plaintiff filed several applications before the revenue authorities and Sub Registrar, Kodad with false allegations and caused obstructions for mutation of the name of defendant No.2 in 19 respect of her land, however, the revenue authorities issued pattadar passbook and title deeds in favour of the plaintiff and defendant No.2 respectively to an extent of Ac.1.03 gts out of Sy.No.199/AA about 11 years back. He further stated that he sold an extent of Ac.2.00 gts out of Sy.No.674/A of Kodad village to one Gopaiah on 02.06.1965 under an agreement of sale and thereafter he executed a registered sale deed on 13.06.1986 in the name of his son Somaiah and the plaintiff has put his signature as 1st attester as well as 1st identifying witness in the said sale deed; that he has also sold an extent of Ac.4.16 gts out of Sy.No.678 and Ac.4.36 gts out of Sy.No.679 of Kodad village to defendant No.5 under an agreement of sale dated 23.02.1974. He further stated that he along with plaintiff sold land to an extent of Ac.2.81 cents out of Sy.No.198/A of Gudibanda village to one Mohammad Zaheera Bee on 15.12.1972 and thereafter executed a registered sale deed on 26.12.1975 in her name and that the purchaser sold away the 20 said lands to one Sowbhagyamma under a registered sale deed on 31.08.1977 and thereafter defendant No.6 purchased the same. In his cross-examination, he stated that all the plaint scheduled properties are joint family properties acquired by his father and the Government allotted one house in B.C. colony to the plaintiff. He admitted that item No.6 is divided into three plots i.e., Ac.1.03 cents to each of them.
Defendant No.2, who was examined as D.W.5, corroborated the version of her father in all material aspects and stated that the suit scheduled properties are not the joint family properties; that the other defendants have been in exclusive possession and enjoyment of their respective lands and that the plaintiff is not entitled to any share in and out of the plaint 'A' scheduled properties.
The 2nd identifying witness for the sale deed dated 02.06.1965 was examined as D.W.6. The first attester to the 21 agreement of sale dated 23.02.1974 was examined as D.W.7. They denied the suggestions that they attested the documents without knowing the contents of it. The neighbour of defendant No.6 was examined as D.W.8 and he stated that he is the owner and possessor of land to an extent of Ac.2.00 gts out of Sy.Nos.196 and 197 of Gudibanda village having purchased the same from one Yelagandula Sowbhagyamma.
The Point that arises for consideration is whether there is any infirmity or illegality in the judgment of the trial Court warranting interference of this Court with the findings recorded by it ?
The appellant/plaintiff filed a memo seeking to receive certain documents viz., (1) Copy of Memo No.D/1708/2021 dated 09.12.2021 issued by the Tahsildar, Kodad Mandal; (2) Copy of Memo No.A/1685/2018 dated 30.05.2018 issued by the Tahsildar, Kodad Mandal; (3) Copy 22 of lease document in Sl.No.784 dated 25.02.1984; (4) Copy of Pahanies from 1975-1976, 1978-79, 1980-81 1982-83, 1983-84, 1985-86, 1987-88, 1988-89, 1990-91 and 1992-1993; (5) Copy of judgment of A.P. High Court in 2007 (4) ALD 694; (6) Memo No.A/618/2018 dated 05.03.2018 issued by the Deputy Tahsildar, Kodad; (7) Copy of letter No.E3/1895/2019 issued by the office of the District Colllector, Suryapet dated 24.07.2019 and (8) Proceedings of the Land Reforms Tribunal, Huzurnagar vide C.C.No.8058 /75/Huzurnagar, dated 12.08.1976.
Learned Counsel for the appellant/plaintiff submits that the aforesaid documents are very much necessary to establish the case of the plaintiff and, therefore, they may be received in evidence and remit the matter to the trial Court for fresh disposal.
The appellant/plaintiff has not stated any reason for not filing the aforesaid documents during the pendency of the proceedings. The appellant simply filed a memo for 23 receiving the aforesaid documents without assigning any reason and he has not filed any affidavit in support of his memo. Therefore, the aforesaid documents now sought to be filed cannot be received in evidence as no plausible reason has been given by the plaintiff for non-disclosure of the documents and non-filing of the documents in the trial Court and as such the memo is rejected.
Admittedly, the plaintiff is a practising advocate at Nalgonda; defendant No.1 is his father and defendant No.2 is his sister. Plaintiff, who was examined as P.W.1, stated in his evidence that the suit scheduled properties are ancestral properties of his grandfather; that the properties were not partitioned between them and that the sale deeds executed by his father (defendant No.1) about 20 years back in favour of other defendants are not valid and binding on him.
As per the evidence adduced by both parties, it is clear that defendant No.1 sold away item Nos.1 to 5 of plaint 'A' scheduled property about more than 20 years 24 back to various defendants by executing sale deeds and agreements of sale and that the plaintiff has signed in some of the sale deeds and agreements as an attesting witness. It is further revealed that item No.6 of plaint 'A' scheduled property was partitioned more than 10 years back and each has got A.1.03 Gts., and the revenue authorities had issued pattadar passbooks and title deeds. The contention of the defendants is that the plaintiff has not filed the suit within 12 years from the date of alienations.
Under Article 109 of the Limitation Act, a suit has to be filed by sons questioning the alienations. In the instant case, the age of the plaintiff was shown as 45 years in the plaint and the suit was filed on 04.01.2006. During the minority period, defendant No.1 sold away some property on behalf of the plaintiff. Hence, the plaintiff ought to have questioned alienations after attaining majority within three years. However, the appellant/plaintiff has not filed the suit questioning the alienations made by defendant No. 1 in 25 respect of item Nos.1 to 5 of plaint 'A' scheduled properties, he simply denied the registered documents. Therefore, the trial Court rightly held that since the plaintiff has not questioned the alienations in respect of item Nos.1 to 5 of plaint 'A' scheduled properties, he is not entitled to seek partition of the said properties. Plaintiff signed certain documents as minor, but he did not raise any objection immediately after attaining the age of majority. The plaintiff (P.W.1) has categorically admitted in his cross-examination that item No.6 was partitioned more than 14 years prior to filing of the suit. Therefore, this Court is of the view that the trial Court rightly held that the suit of the plaintiff in respect of partition of plaint 'A' scheduled property is barred by limitation.
With regard to plaint 'B' scheduled house property is concerned, admittedly, the plaintiff, defendant Nos.1 aned 2 are coparceners. Defendants 1 and 2 are not at all claiming exclusive title over plaint 'B' scheduled property. 26 Therefore, the trial Court rightly held that since the plaint 'B' scheduled property is not partitioned, it is liable for partition between plaintiff and defendants 1 and 2 equally and that they are entitled to 1/3rd share each in plaint 'B' scheduled property.
Learned Counsel for the appellant/plaintiff relied upon a decision of this Court in Damalanka Gangaraju and others v. Nandipati Vijaya Lakshmi and others1, wherein it was held as under:
"In view of amendment to Section 6, after 9.9.2005, a daughter has to be treated as coparcener entitled to equal share along with male members of Hindu joint family, irrespective of fact, whether they are majors or minors or their marriages were performed before or after 05.09.1985 - only exception is that partition should not have taken place before 20.12.2004"
So far as plaint 'C' scheduled property is concerned, it consists of 300 tolas of gold ornaments. The plaintiff, who 1 2007 (4) ALD 694 27 was examined as P.W.1, stated in his evidence that he cannot state at present whether the plaint 'C' scheduled gold ornaments are available. He has not placed any material to show the existence of plaint 'C' scheduled gold ornaments. Therefore, the trial Court rightly held that since plaint 'C' schedule property is not available, the plaintiff is not entitled to seek partition of plaint 'C' scheduled property.
The trial Court, after considering the oral and documentary evidence available on record and also the conduct of the plaintiff towards his father and sister, rightly dismissed the suit of the plaintiff in respect of plaint 'A' and 'C' scheduled properties. However, the trial held that the plaintiff and defendants 1 and 2 are entitled for partition of plaint 'B' scheduled property only and accordingly, a preliminary decree is passed for partition of plaint 'B' scheduled property into three equal shares and that the 28 plaintiff, defendant Nos.1 and 2 are entitled to take separate possession of one such share in the said property.
In view of the foregoing reasons, I find that the findings given by the trial Court are based on sound legal principles and there is no infirmity or illegality in the said findings warranting interference of this Court. Therefore, I do not find any merit in the appeal and the same is liable to be dismissed.
In the result, the appeal is dismissed. The judgment and decree, dated 07.04.2009, passed by the learned II- Additional District Judge, Nalgonda at Suryapet, in O.S.No.10 of 2006 is hereby confirmed. There shall be no order as to costs.
Miscellaneous petitions, if any, pending, shall stand closed.
________________________ JUSTICE P.SREE SUDHA 20.12.2022 Gsn