Andhra Pradesh High Court - Amravati
Tupili Girijamma vs Tupili Subba Reddy on 28 December, 2023
HONOURABLE SRI JUSTICE V. GOPALA KRISHNA RAO
Appeal Suit No.667 of 2008
Judgment:
The appeal is filed by defendants 1 and 2 in O.S.No.224 of 2005
on the file of I Additional Senior Civil Judge's Court, Nellore, SPSR
Nellore District. The 1st respondent herein is the plaintiff and
respondents 2 to 5 are defendants 3 to 6 in the said suit.
2. The parties will hereinafter be referred to as arrayed before the
trial Court.
3. The 1st respondent/plaintiff filed the suit for partition and
separate possession of his share of Ac.6-75 cents from out of the
plaint A schedule property, 5/12th share of the plaint B schedule
property, directing defendants 1 to 3 to pay plaintiff Rs.1,30,250/-
being the profits in respect of his share of Ac.6-75 cents in A schedule
property and 5/12th share in respect of plaint B schedule property and
also directing defendants 1 to 3 to pay future profits in respect of
A and B schedule properties till the plaintiff is put in possession of his
share of the said properties and for costs.
4. The brief averments in the plaint are as follows:
(a) One Tupili Latcha Reddy, who is the father of the plaintiff,
married one Ramanamma and as he did not beget any children
through her, he married one Vanajakshamma as his 2 nd wife and
begot two sons Tupili Bhaskara Reddy and the plaintiff herein and two
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daughters Devalla Murathamma and Guduru Sitaramamma through
her. Latcha Reddy and his two sons partitioned their joint family
properties under a registered partition deed dated 24-5-1961.
But they kept the properties undivided with specific 1/3rd share of
Ac.5-00 each in A schedule property and 1/3rd share in B schedule
property. Latcha Reddy had given Ac.1-00 of land each to his wives
for their maintenance, which was kept undivided along with other
lands and they were enjoying the said property jointly. While so,
as the 2nd wife of Latcha Reddy died intestate on 23-9-1993, her
Ac.1-00 of land devolved in equal shares on her husband, her two
sons and two daughters, but remained undivided. Thereafter, Latcha
Reddy also died intestate on 16-10-1993. Consequently, his share in
plaint A and B schedule properties devolved equally upon his 1st wife,
his two sons and two daughters. Later, Devalla Murathamma, one of
the daughters of Latcha Reddy, died intestate on 13-10-1996. So, her
share in the property devolved upon her son and daughters, who are
defendants 5 and 6, equally. The 1st wife of Latcha Reddy died
intestate on 15-01-2002. So, the heirs of her husband became
entitled to her estate. Thus, the plaintiff became entitled to
1/4th share, defendants 1 to 3 being the legal heirs of Bhaskar Reddy
together became entitled to 1/4th share. Defendants 5 and 6, being
the son and daughter of Devalla Murathamma, together entitled to
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1/4th share and the 4th defendant became entitled to the remaining
1/4th share in the estate of deceased Ramanamma. Thus, the plaintiff
and the defendants are entitled to the said properties as detailed in
the plaint A and B schedule properties.
(b) The plaintiff secured job in the United States of America
(USA) in the year 1970 and he entrusted all his properties to his
mother and his brother for managing according to his directions since
his father was living separately. After death of plaintiff's mother
Vanajakshamma, his brother Tupili Bhaskar Reddy managing the said
properties as per the directions of the plaintiff. After the death of
Tupili Bhaskar Reddy on 28-12-2002, defendants 1 to 3 are enjoying
the properties of the plaintiff without accounting for the profits i.e.
Rs.1,30,250/-. Hence, the suit.
5. The brief averments in the written statement filed by the
2nd defendant, which was adopted by defendants 1 and 3, are as
follows:
(a) He denied all the allegations made in the plaint except the
relationship between the parties. At the time of marriage of Devalla
Murathamma and 4th defendant, they were given land, gold and
monies. Hence, they are not entitled to any share in the joint family
properties. Under the partition, A schedule property fell to the share
of Latcha Reddy, B and C schedule properties fell to the share of
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father of 2nd defendant and plaintiff respectively. He denied that the
properties covered under a registered partition deed are undivided
extent. One Guduru Narayana Reddy was managing the properties of
father of 2nd defendant and plaintiff during their minority. After the
marriage of father of 2nd defendant in the year 1972, plaintiff's father
Latcha Reddy sold away his 1/3rd share to the father of 2nd defendant
under an oral sale for discharge of family debts. Subsequently, the
plaintiff and the father of 2nd defendant implemented the partition
deed by dividing the extent by metes and bounds and allotted Ac.5-00
to the plaintiff with specified boundaries. The properties that have
been purchased by the father of 2nd defendant from the plaintiff's
father Latcha Reddy were given to the 2nd defendant. The father of
2nd defendant has been cultivating his land and the lands purchased
from his father. The father of 2nd defendant also cultivated the lands
allotted to the plaintiff till his death on annual maktha of Rs.3,000/-
per acre. The 4th defendant was collecting maktha amount on the
instructions of the plaintiff as he was in abroad. The 1 st wife of Latcha
Reddy died issueless and her share of land was voluntarily given to
the father of 2nd defendant. The father of 2nd defendant was looking
after the welfare of Vanajakshamma, 2nd wife of Latcha Reddy, who
died in the year 1994 prior to one or two months of the death of
Latcha Reddy, since the plaintiff was at abroad. So, the father of
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2nd defendant set apart Ac.5-85 cents by dividing the property by
metes and bounds and allotted to the plaintiff. So, after partition
nearly after 30 years back the plaintiff claiming the property as if he is
having Ac.6-75 cents. Ac.0-85 cents of land was added to the extent
of Ac.5-00 which was originally allotted to the plaintiff in the family
lands. The father of 2nd defendant obtained pass books in the year
1992 or 1993 to the respective lands owned and allotted to defendants
2 and 3. So, partition took place nearly 30 years back by metes and
bounds between the plaintiff and the father of 2nd defendant who is
enjoying the properties separately by paying cist to the respective
extent and the enjoyment also registered in revenue accounts would
disclose about the separate possession and enjoyment of the
properties. So, there is no joint family subsisting between the plaintiff
and defendants. Defendants 1 to 3 have been in possession and
enjoyment of the lands after division by metes and bounds about
30 years back and paying cist to the respective extents and pass books
are also issued in the name of defendants by demarcating the lands.
So, the defendants are perfected their right by adverse possession and
ouster. Hence, the plaintiff is not entitled to any share as he was
already allotted Ac.5-85 cents of land and he prayed to dismiss the
suit.
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6. The 4th defendant filed a written statement stating that she
has no objection for passing a preliminary decree for partition of the
plaint schedule properties and put her in separate possession of
respective share.
7. The defendants 5 and 6 remained ex parte before the trial
Court.
8. Based on the above pleadings, the following issues and
additional issue are settled for trial by the trial Court:
(1) Whether Latcha Reddy sold away 1/3rd share to the father of
defendants 2 and 3 ?
(2) Whether plaintiff and father of defendants 2 and 3 had
partitioned their properties by metes and bounds and allotted Ac.5-00
to the plaintiff with specified boundaries as contended by defendants
1 to 3 ? If so, father of defendants 2 and 3 and after his death
defendants 1 to 3 are cultivating the lands allotted to the plaintiff as
cultivating tenants and paid maktha as pleaded by defendants 1 to 3?
(3) Whether the first wife of Latcha Reddy i.e. Ramanamma had
given her Ac.1-00 land to the father of defendants 2 and 3 as pleaded
by defendants ?
(4) Whether the plaint B schedule property cannot be
partitioned as pleaded by defendants 1 to 3 ?
(5) Whether the plaintiff is entitled for partition and separate
possession of Ac.6-75 cents in plaint A schedule property ?
(6) Whether the plaintiff is entitled for partition and separate
possession of 5/12th share in plaint B schedule property ?
(7) Whether the defendants 1 to 3 are liable to pay
Rs.1,30,250/- being the past profits and also future profits to the
plaintiff ? and
(8) To what relief ?
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Additional Issue:
Whether defendants 1 to 3 have perfected their right by adverse
possession as pleaded by them ?
9. During the course of trial, on behalf of the plaintiff, the
plaintiff himself is examined as P.W.1 and marked Exs.A-1 to A-13.
On behalf of the defendants, the 2nd defendant is examined as D.W.1
and got examined the friend of the father of defendants 2 and 3 as
D.W.2 and marked Exs.B-1 to B-26.
10. After completion of trial and hearing arguments of both
sides, the trial Court decreed the suit without costs by passing
a preliminary decree as prayed for.
11. Aggrieved against the said judgment and decree, the
defendants 1 and 2 filed the present appeal questioning the finding
given by the trial Court.
12. During the pendency of the appeal, the appeal against
respondents 2, 3 and 5/defendants 3, 4 and 6 was dismissed for
default vide Court order dated 25-4-2016.
13. Heard Sri M. Ravindra, learned counsel for the appellants/
defendants 1 and 2 and Sri S. Lakshmi Narayana Reddy, on behalf of
counsel for 1st respondent/plaintiff. None appeared for respondent
No.4/defendant No.5.
14. Learned counsel for the appellants would submit that there
was a registered partition in between the plaintiff and defendants'
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family and the plaintiff was allotted his share and he has been
enjoying the same by getting it cultivated on lease. He would further
contend that the plaintiff was already allotted his share and he has
been enjoying the same by getting it cultivated on lease through the
father of the 1st defendant till his death and thereafter through the
1st defendant and receiving maktha and that the present suit for
partition is not maintainable. He would further contend that 10(1)
copies produced by the appellants before the trial Court were not
considered by the trial Court, the same reveals separate possession of
the respective parties. He would further contend that the judgment
passed by the trial Court is contrary to law and the same has to be set
aside by allowing the present appeal.
15. Per contra, learned counsel for the 1st respondent/plaintiff
would contend that on appreciation of the entire evidence on record,
the trial Court rightly decreed the suit for partition filed by the plaintiff
and there is no need to interfere with the finding given by the trial
Court in its judgment and the appeal may be dismissed.
16. Now, the points for determination are:
(1) Whether the 1st respondent/plaintiff is entitled to the relief
of partition of plaint schedule property and mese profits as ordered by
the trial Court?
(2) Whether the trial Court is justified in decreeing the suit for
partition ?
(3) Whether the judgment and decree passed by the trial Court
needs any interference ? and
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(4) To what extent ?
17. Point No.1:-Whether the 1st respondent/plaintiff is entitled
to the relief of partition of plaint schedule property and mese profits
as ordered by the trial Court ?
The case of the plaintiff is that late Tupili Latcha Reddy had two
legally wedded wives, first he married one Ramanamma but he did not
beget any children through her and so later he married
Vanajakshamma as 2nd wife and he begot two sons by name Bhaskara
Reddy and the plaintiff herein and two daughters Devalla
Murathamma and Guduru Sitaramamma through her and the
marriages of his sisters took place prior to the commencement of the
Hindu Marriage Act, 1955 and Latcha Reddy performed the marriages
of his two daughters. The plaintiff further pleaded that Latcha Reddy
and his two sons partitioned their joint family properties under
a registered partition deed dated 24-5-1961 and the plaintiff had been
to the USA for his employment and staying in the USA and that the
partition was not acted upon and the plaintiff's brother Bharkara
Reddy used to manage the schedule properties and after his death, his
two sons used to manage the schedule properties and the partition
deed dated 24-5-1961 is not acted upon and the schedule properties
are under the cultivation and enjoyment of defendants 1 to 3.
The plaintiff further pleaded that plaint A and B schedule properties
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were kept undivided with specific 1/3rd share of Ac.5-00 each in
A schedule property and 1/3rd share of B schedule property and
Latcha Reddy's 1st wife Ramanamma was already given Ac.1-00 of
land and his 2nd wife Vanajakshamma was given an extent of Ac.1-00
of land and the said Ac.2-00 of land was also kept undivided along
with the lands of Latcha Reddy and his sons.
18. The relationship of both the parties is not in dispute.
The specific plea of the appellants is that the joint family properties
were partitioned under Ex.A-1 partition deed and the same were
divided by metes and bounds. According to the plaintiff, the suit
schedule properties are not yet divided by metes and bounds and they
are kept in joint and the defendants are in the possession and
enjoyment of joint family properties. Therefore, the plaintiff has to
prove that Ex.A-1 partition deed is not acted upon.
19. In order to prove the case of the plaintiff, he relied on his
sole testimony as P.W.1 and relied on Exs.A-2 to A-9. The plaintiff
reiterated the contents of plaint in his chief-affidavit as P.W.1. In his
evidence, he deposed that plaint A and B schedule properties are in
the possession of his father, mother, brother and himself and also the
1st wife of his father, while he had been in the USA, his brother
Bhaskara Reddy wrote letters to him and so also his father and
mother also wrote letters to him. Exs.A-2 to A-9 are the said letters
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written by them to the USA while he was in the USA. In cross-
examination when elicited, he admits that in the year 1970, he left for
abroad for the first time and his paternal uncle had looked after the
properties of his father and himself for a couple of years and they were
minors by then. He further deposed that in the year 1967-68, his
mother, brother and himself left the house of his maternal uncle and
went to Pedur and from 1961 to 1967, his father alone had been at
Pedur and his father's 1st wife was staying along with his father during
that period. It was suggested to P.W.1 in cross-examination by the
learned counsel for defendants 1 to 3 that defendants 1 to 3 used to
cultivate the said land as tenants of the plaintiff. The said suggestion
is denied by P.W.1. The evidence of P.W.1 and Exs.A-2 to A-9
supports the case of the plaintiff. Exs.A-2 to A-9 which are the letters
addressed by the father of defendants 2 and 3, father and mother of
the plaintiff to the plaintiff while he was in the USA and the contents
of Exs.A-2 to A-9 would disclose that the father of defendants 2 and 3
informed the plaintiff through the said letters that their family owns
Ac.18-00 of land and that the father of defendants 2 and 3 was
managing and cultivating the said lands jointly.
20. To disprove the case of the plaintiff, the 2nd defendant is
examined himself as D.W.1. It is not in dispute that there was
a partition on 24-5-1961 in between Latcha Reddy and his two sons
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Bhaskara Reddy and Subba Reddy. Bhaskara Reddy is none other
than the husband of 1st defendant and father of defendants 2 and 3.
According to the plaintiff, the property under Ex.A-1 is not divided by
metes and bounds and he used to stay in the USA for employment
and the suit schedule properties were kept undivided and his brother
Bhaskara Reddy used to look after the said lands and after his death,
his two sons looked after the said lands. It is not in dispute that
Bhaskara Reddy is no more. For the reasons best known to the
defendants, the 1st defendant did not enter into the witness-box.
Admittedly, defendants 2 and 3 have no knowledge about the alleged
partition happened in the year 1961, because the 2nd defendant born
on 18-6-1974 and admittedly the 3rd defendant is younger brother of
2nd defendant. The 3rd defendant was born subsequent to 18-6-1974.
Therefore, defendants 2 and 3 have no personal knowledge about the
partition happened in the year 1961. Furthermore, the mother of
defendants 2 and 3 i.e. the 1st defendant, who is a party to the suit, is
having knowledge about the alleged partition under Ex.A-1. She is
the best person to speak about the alleged partition happened in
between the members of the family. For the reasons best known to
the defendants 1 to 3, the 1st defendant did not enter into the witness-
box. It is not in dispute that the father of plaintiff died intestate on
16-10-1993 and the 2nd wife of Latcha Reddy i.e. Vanajakshamma
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died intestate on 23-9-1993. Bhaskara Reddy also died on
18-12-2002. The present suit is filed in the year 2005.
21. It is relevant to say about some of the admissions made by
the 2nd defendant i.e. D.W.1 in his evidence in cross-examination.
Those are - his date of birth is 18-6-1974, the 3rd defendant is his
younger brother, his father was looking after the cultivation, the
plaintiff is an Engineering graduate and went to the USA for job and
he did job in the USA and he does not know personally about the
facts, partition of the family properties in the year 1961 and he does
not know the date when his father and the plaintiff partitioned their
properties because by that date he was not born.
22. As per the evidence of D.W.1 i.e. the 2nd defendant, by the
date of alleged partition he was not born. The friend of father of
defendants 2 and 3 was examined as D.W.2. As per his evidence,
he does not know whether the partition was effected by metes and
bounds in the year 1961 and he does not know the year of partition.
He also does not know which lands were fallen to the share of
Bhaskara Reddy, plaintiff and their father. He further admits that
when the plaintiff was in the USA, Bhaskara Reddy was managing the
properties and Bhaskara Reddy is his friend. Therefore, the own
admissions of D.Ws.1 and 2 are in no way helpful to prove the defence
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of defendants 1 to 3 to show that Ex.A-1 partition deed is acted upon
and it was divided by metes and bounds.
23. A specific plea was taken by the defendants 2 and 3 in the
written statement that 1/3rd share allotted to the deceased father of
the plaintiff had been purchased under oral sale and also pleaded that
the share of Vanajakshamma, who is the mother of the plaintiff, has
also given to them and they are enjoying the said property.
Admittedly, there is no evidence on record to show that 1/3rd share of
deceased father of the plaintiff had been purchased by deceased
Bhaskara Reddy under oral sale. As per the admissions of
2nd defendant i.e. D.W.1, he was not born by that time, his
grandfather sold his 1/3rd share to his father under oral sale. As per
the evidence of D.W.2, the father of plaintiff did not inform him with
regard to the documents under which he conveyed the properties to
Bhaskara Reddy. As per his evidence, Bhaskara Reddy told him that
he was cultivating the lands on lease and he does not know the lease
amount and year of lease and he does not know to whom the lease
amount was paid. Therefore, the evidence of D.Ws.1 and 2 produced
by the defendants 1 and 2 failed to prove that Ex.A-1 partition deed
was acted upon and both the parties are enjoying their respective
shares separately.
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24. Another contention taken by the defendants 1 to 3 is that
their names are mutated in Revenue records and relied on Exs.B-1 to
B-4. Exs.B-1 to B-4 are ryotwari pass books and title deeds and
Exs.B-6 and B-7 are cist receipts. Ex.B-16 10(1) Account is also filed
by the defendants 1 to 3 to show that after partition, their names are
noted in the concerned registers to show their separate possession.
The defendants 1 to 3 also filed Exs.B-10 to B-15 Certificates issued
by the Bank authorities, but Exs.B-10 to B-15 do not disclose that
defendants 1 to 3 obtained loan by mortgaging the property under
Ex.A-1 partition deed. The plaintiff filed Ex.A-11 proceedings issued
by the Revenue Divisional Officer, Nellore. Ex.A-11 goes to show that
the RDO, Nellore cancelled Exs.B-1 to B-4 ryotwari pass books issued
in the name of the father of defendants 2 and 3.
25. It is the case of appellants that they are in the possession of
plaint schedule property and they used to send the produce to the
plaintiff to the USA. Therefore, the father of defendants 2 and 3 might
have paid tax, it does not mean that Ex.A-1 partition deed is acted
upon. Any co-owner may pay land revenue on behalf of all other
co-owners because the plaintiff stayed in the USA for his employment.
It does not mean that Ex.A-1 partition deed is acted upon and the
appellants cannot refuse to give the share of the plaintiff on the
ground that they are in the possession of plaint schedule property.
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The possession of plaint schedule property by one co-sharer on behalf
of the other co-sharers shall not take away the rights of the other
co-sharers unless there has been ouster by denying the title of other
co-sharers.
26. It is also settled law that mutation in the revenue records in
the name of one co-sharer would not amount to ouster. The legal
position in this regard is no more res integra. The same is well settled
by the apex Court in the case of Darshan Singh v. Gujjar Singh
(Dead) by LRs1. In the aforesaid case, the apex Court held as follows:
"7. ... ... ... It is well settled that if a co-sharer is in possession of the
entire property, his possession cannot be deemed to be adverse for
other co-sharers unless there has been an ouster of other co-sharers.
8. ..........................................................................................
9. In our view, the correct legal position is that possession of
a property belonging to several co-sharers by one co-sharer shall be
deemed that he possesses the property on behalf of the other
co-sharers unless there has been a clear ouster by denying the title of
other co-sharers and mutation in the revenue records in the name of
one co-sharer would not amount to ouster unless there is a clear
declaration that title of the other co-sharers was denied."
27. A reliance is placed by the counsel for appellants in the case
of Shasidhar v. Ashwini Uma Mathad2. In that decision, the apex
Court held as follows:
"20. We may consider it apposite to state, being a well-settled
principle of law that in a suit filed by a co-sharer, coparcener,
co-owner or joint owner, as the case may be, for partition and
1 (2002) 2 SCC 62
2 (2015) 11 SCC 269
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separate possession of his/her share qua others, it is necessary for
the court to examine, in the first instance, the nature and character of
the properties in suit such as who was the original owner of the suit
properties, how and by which source he/she acquired such
properties, whether it was his/her self-acquired property or ancestral
property, or joint property or coparcenary property in his/her hand
and, if so, who are/were the coparceners or joint owners with
him/her as the case may be. Secondly, how the devolution of his/her
interest in the property took place consequent upon his/her death on
surviving members of the family and in what proportion, whether
he/she died intestate or left behind any testamentary succession in
favour of any family member or outsider to inherit his/her share in
properties and if so, its effect. Thirdly, whether the properties in suit
are capable of being partitioned effectively and if so, in what manner ?
Lastly, whether all properties are included in the suit and all
co-sharers, coparceners, co-owners or joint owners, as the case may
be, are made parties to the suit ? These issues, being material for
proper disposal of the partition suit, have to be answered by the court
on the basis of family tree, inter se relations of family members,
evidence adduced and the principles of law applicable to the case."
28. In the case on hand, as stated supra, the properties belong
to all sharers are in the possession of one co-sharer, it does not mean
that mutation in the name of one co-sharer would amount to ouster.
29. In the case of R. Janakiammal v. S.K. Kumarasamy
(Deceased) Through LRs3, the apex Court held as follows:
"80. Under Hindu Law, any member of the joint family can separate
himself from joint family. The intention of the parties to terminate the
status of joint family is a relevant factor to determine the status of
Hindu undivided family. From the above, it is clear that real
intendment of three branches to partition their properties was not that
3 2021 SCC OnLine SC 444
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they did not want Hindu undivided family to continue rather the said
partition was with the object to get away from application of Land
Ceiling Act, 1961. The intention of the parties when they partitioned
their properties in the year 1960 is a relevant fact.
81. However, the partition deed dated 7-11-1960 being
a registered partition deed between three branches, the same cannot
be ignored. Properties admittedly were divided in three branches by
the said partition. The question is as to whether after 7-11-1960, the
family continued as a joint family or the status of joint family came to
an end on 7-11-1960. The case of the appellant which was also
pressed by the High Court was that even if partition dated 7-11-1960
is accepted; the parties lived in a joint family and continued their joint
family status. The contention advanced by the appellant was that
there was reunion between three brothers to revert to the status of
joint Hindu family, which is amply proved from the acts and conduct
of the parties subsequent to 7-11-1960."
30. In the case on hand, there was an ample material on record
to show that Ex.A-1 partition deed is not acted upon. Furthermore,
no evidence is produced by the defendants 1 to 3 to show that Ex.A-1
partition deed is acted upon.
31. It was pleaded by the defendants 1 to 3 in the additional
written statement that their possession was perfected by adverse
possession. In the case of Ram Nagina Rai v. Deo Kumar Rai
(Deceased) by LRs4, the apex Court held as follows:
"9. ... ... ... But there is no iota of evidence to show as to when the
defendants' possession in fact became adverse to the interest of the
plaintiff. Except for the change of khatian sometime in the year 1970
by the defendants and the payment of taxes for being in possession of
4 (2019) 13 SCC 324
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property, no material is produced by the defendants to show whether
the possession was really hostile to the actual owner. There is
absolutely nothing on record to show that there was a hostile
assertion by the defendants. We do not find that the defendants had
hostile animus at any point of time, from the facts and circumstances
of this case. ... ... ..."
32. In the instant case, the ingredients for claim of adverse
possession are totally missing in the written statement filed by the
defendants 1 to 3. The ingredients for claim of adverse possession are
that the possession shall be continuous, open, peaceful and with
animus to acquire the title against the true owner. The said
ingredients are totally missing in the written statement and in the
additional written statement filed by the defendants 1 to 3.
33. In the case on hand, absolutely there is no evidence to show
that Latcha Reddy sold his 1/3rd share of the property to the father of
defendants 2 and 3 and so also there is no oral or documentary
evidence to show that the 1st wife of Latcha Reddy, by name
Ramanamma, had given her Ac.1-00 of land to the father of
defendants 2 and 3. Furthermore, no evidence was produced by the
defendants 1 to 3 to show that B schedule property cannot be
partitioned in between the plaintiff and defendants. As stated supra,
defendants 1 to 3 failed to prove that the father of plaintiff sold his
1/3rd share to the father of defendants 2 and 3 and also the 1 st wife of
Latcha Reddy, by name Ramanamma, given her share to the father of
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defendants 2 and 3. Therefore, respondent No.1/plaintiff is entitled to
Ac.5-00 of his original share under Ex.A-1 partition deed and the
plaintiff is also entitled to Ac.0-20 cents towards his share in the land
of Vanajakshamma and the plaintiff is also entitled to Ac.1-04 cents in
the share of his father Latcha Reddy and also entitled to Ac.0-51 cents
of land in the land of Tupili Ramanamma because they died intestate.
Therefore, the 1st respondent/plaintiff is entitled to Ac.6-75 cents
towards his share in plaint A schedule property as granted by the trial
Court and the plaintiff is also entitled to 5/12th share in plaint B
schedule property as granted by the trial Court.
34. The claim of the plaintiff is that he is entitled to
Rs.1,30,250/- towards mesne profits. In fact, mesne profits have to
be ascertained in a separate application to be filed by the plaintiff
during final decree proceedings before the trial Court but not in
preliminary decree proceedings. Therefore, the relief of mesne profits
claimed by the plaintiff is negatived. Accordingly, point No.1 is
answered.
35. Point No.2:- Whether the trial Court is justified in decreeing
the suit for partition ?
In view of my findings on point No.1, the trial Court is justified
in granting Ac.6-75 cents of land in A schedule property and 5/12th
share in B schedule property to the plaintiff, but the trial Court is not
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justified in awarding an amount of Rs.1,30,250/- towards mesne
profits. Accordingly, point No.2 is answered.
36. Point No.3:- Whether the judgment and decree passed by
the trial Court needs any interference ?
In view of my findings on point Nos.1 and 2, the appeal is partly
allowed by confirming the finding given by the trial Court that the
1st respondent/plaintiff is entitled to Ac.6-75 cents of land in plaint A
schedule property and so also 5/12th share in plaint B schedule
property. The claim of Rs.1,30,250/- awarded by the trial Court
towards mesne profits is negatived. The mesne profits shall be
ascertained in a separate application to be filed by the plaintiff during
final decree proceedings before the trial Court.
37. Point No.4:- To what extent ?
In the result, the appeal is partly allowed. Pending applications,
if any, shall stand closed. No costs.
_____________________________
V. GOPALA KRISHNA RAO, J.
28th December, 2023.
Ak
22 VGKR, J.
as_667_2008
HONOURABLE SRI JUSTICE V. GOPALA KRISHNA RAO
28th December, 2023.
(Ak)
