Telangana High Court

P.V.Raghavulu vs P.Laxmaiah on 20 December, 2022

Bench: P.Sree Sudha

       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

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.

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

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

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.

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

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

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

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

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.

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

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

13.06.1986 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

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.

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

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

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

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

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

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

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

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

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

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

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.

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

2007 (4) ALD 694

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.