Andhra Pradesh High Court - Amravati
G Rajesh vs K Naga Muni on 4 October, 2024
Author: Ninala Jayasurya
Bench: Ninala Jayasurya
THE HONOURABLE SRI JUSTICE NINALA JAYASURYA
THE HONOURABLE SMT. JUSTICE SUMATHI JAGADAM
I.A.No.2 of 2023 in A.S.No.316 of 2023
Between:
G. Rajesh ... Petitioner/
Appellant/
5th defendant
and
Kondeti Naga Muni and others ... Respondents/
Respondents/
Plaintiff & D.1 to D.4,6 & 7
Counsel for petitioner : Ms. S. Parineeta
Counsel for 1st respondent : Mr. P. Nagendra Reddy
This Court made the following:
ORDER:
(Per Hon'ble Smt. Justice Sumathi Jagadam)
This application is filed by the petitioner/appellant/defendant No.5
seeking stay of execution of the judgment and decree dated 23.12.2022
passed by the Principal District Judge, Chittoor, in O.S.No.76 of 2014.
2. The 1st respondent herein filed the aforesaid suit against the
petitioner and respondent Nos.2 to 7 herein seeking a direction to them
to execute a regular registered sale deed in her favour with regard to
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plaint schedule property, in pursuance of a registered agreement of
sale dated 01.02.2012 and to deliver possession of the plaint schedule
property to her, failing which, the same may be done through process
of Court. The petitioner herein filed O.S.No.30 of 2012 against the
respondents herein for division of the suit schedule property into four
equal shares and to allot 1/4th share to him and to put him in separate
possession of the same. The 1st respondent herein was arrayed as
defendant No.5 in the said suit.
3. The trial Court, by common judgment dated 23.12.2022, partly
decreed the suit in O.S.No.30 of 2012 filed by the petitioner by passing
a preliminary decree for division of items 1 to 5 and 7 of the plaint
schedule properties into four equal shares and for allotment of one
such share to the petitioner, by virtue of Ex.B.2-will while dismissing the
suit in respect of item No.6 of the plaint schedule property. The trial
Court decreed the suit filed by the 1st respondent in O.S.No.76 of 2014
and directed the petitioner and other respondents herein to execute a
registered sale deed in favour of the 1st respondent in pursuance of
Ex.B.1-registered agreement of sale and deliver possession of the
property to her. Challenging the judgment and decree passed in
O.S.No.76 of 2014 filed by the 1st respondent, the petitioner/5th
defendant in the said suit preferred the present appeal A.S.No.316 of
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2023 along with the instant application. Whereas the respondents 5 to 7
herein filed a separate appeal A.S.No.630 of 2023. Aggrieved by the
judgment and decree in O.S.No.30 of 2012, the petitioner herein filed
A.S.No.315 of 2023.
4. Mr. V.R. Reddy Kovvuri representing the counsel for the
petitioner on record submits that the petitioner's father has acquired
properties from the income derived from the joint family nucleus, not
from his own salary. Item 6 of the suit schedule property is a joint
family property. Still, the trial Court dismissed the claim in respect of
item 6 of the suit schedule property holding that it is the self-acquired
property of respondents 2 and 3, and the petitioner and respondents 4
to 7 are not entitled to partition of the same. The learned counsel
further submits that possession of item 6 of the suit schedule property
is with the petitioner, respondent No.2 and respondent Nos.5 to 7, and
that a perusal of Ex.B.1-agreement of sale, which is said to have been
executed by respondents 2 and 3 in favour of the 1st respondent, would
substantiate that the possession of the subject property is yet to be
delivered to the 1st respondent. Unless a sale deed is executed and
possession is delivered to the 1st respondent, the learned counsel
contends that she cannot claim possession over the property, that if the
1st respondent is allowed to take possession of the subject property and
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raise structures therein, it amounts to dispossession of the petitioner
and the entire proceedings would become redundant, and it is highly
impermissible to seek permission and construct a building in the subject
property, which is in joint possession.
5. On the other hand, learned counsel for the 1st respondent
submits that O.S.No.76 of 2014 is filed with regard to item 6 of the suit
schedule property. In O.S.No.30 of 2012, the 1st respondent herein
was impleaded as the 5th defendant and the petitioner's father has
contested the suit with respect to item 6, stating that it is his self-
acquired property and exclusively belongs to him. The petitioner, who
is the plaintiff in O.S.No.30 of 2012, did not produce any material to
show that his parents had purchased item 6 of the suit schedule
property with the funds of the joint family. Moreover, the parents of the
petitioner have admitted the execution of a registered agreement of
sale and adduced evidence that the 1st respondent has paid the sale
consideration. He submits that the petitioner is claiming 1/4th share in
the subject property, which was adjudicated by the trial Court and
decreed O.S.No.76 of 2014 in favour of the 1st respondent herein i.e.,
respondent No.5 in O.S.30 of 2012, and the 1st respondent has filed the
execution proceedings in O.S.No.76 of 2014 and the petitioner has filed
the present application seeking stay of execution of the judgment and
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decree passed in the said suit only to deprive the fruits of the decree.
The learned counsel further submits that the 1st respondent's son and
daughter-in-law are Doctors, practising in a rented premises and if
possession is delivered to the 1st respondent, a hospital pending appeal
will be constructed, which would cater the needs of the public in the
vicinity. Even assuming, the petitioner's claim is for 1/4th share and
drawing attention of this Court to the undertaking affidavit of respondent
No.1 dated 29.11.2023, the learned counsel states that the 1st
respondent, in the event of the petitioner succeeding in the appeal, will
not claim equity and either demolish or relinquish the right in the
building constructed in the suit schedule property i.e., item No.6.
6. Heard the learned counsel for both the parties and perused the
record.
7. As noted supra, O.S. No.76 of 2014 is decreed with costs
directing the defendants in the suit to execute a registered sale deed in
favour of the plaintiff i.e., the 5th defendant in O.S.No.30 of 2012. No
doubt, the finding recorded by the learned trial Court that the petitioner
has not filed any document to establish that the subject property is a
joint family property, needs to be examined in the appeal, but the
petitioner's father contested the suit stating it was his self-acquired
property. He has also admitted execution of the registered sale
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agreement and payment of consideration in respect of the subject
property. Be that as it may.
8. The 1st respondent gave an undertaking before this Court that if
the petitioner succeeds in the appeal and the Court grants a share in
the subject property to the petitioner, she will not claim any equity and
she will relinquish her right over the hospital building that she intends to
construct after execution of the registered sale deed or she will deliver
the vacant land to the petitioner by demolishing the hospital at her cost,
if the petitioner seeks delivery of vacant land.
9. In the light of the said undertaking filed on oath before this Court
and taking into account that the appeal is of the year 2023 and it will
take some considerable time for final disposal, we are of the view that
instead of keeping the subject property vacant, the same can be utilised
for some laudable purpose, as the 1st respondent wants to construct a
hospital and the public would be benefited.
10. In the aforesaid view of the matter, this Court is not inclined to
interfere with the execution proceedings initiated by the 1st respondent
in O.S.No.76 of 2014 and the I.A.No.2 of 2023 is accordingly dismissed.
It is, however, made clear that the 1st respondent shall construct only a
hospital in the subject matter property and depending on the result in
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the appeal, she shall act in terms of the undertaking dated 29.11.2023
filed before this Court, without claiming any equities.
_____________________
NINALA JAYA SURYA, J
____________________
SUMATHI JAGADAM, J
4th October, 2024
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I.A.No.2 of 2023 in A.S.No.316 of 2023
THE HONOURABLE SRI JUSTICE NINALA JAYASURYA
THE HONOURABLE SMT. JUSTICE SUMATHI JAGADAM
I.A.No.2 of 2023 in A.S.No.316 of 2023
4th October, 2024
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