Garlapati Prakasam vs Garlapti Jaggaiah Died And 24 Others
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Telangana High Court

Garlapati Prakasam vs Garlapti Jaggaiah Died And 24 Others on 26 June, 2025

         THE HONOURABLE SMT. JUSTICE K. SUJANA


                  APPEAL SUIT No.569 of 2007


JUDGMENT:

Challenging the order dated 07.09.2007 passed in

I.A.No.297 of 2003 in O.S.No.24 of 1986 by the learned Senior

Civil Judge, Bhongir, the present Appeal Suit is filed.

2. The brief facts of the case are that O.S.No.24 of 1986

filed by the plaintiff claiming partition of his joint family

ancestral properties listed under Schedule "A" (landed) and

Schedule "B" (residential houses). The plaintiff, through his

father Annanthaiah, sought a legitimate share in the

properties. After contest, the trial court dismissed the suit on

24.04.1991, rejecting the claim, but the plaintiff appealed to

this Court in A.S.No.1730 of 1991, which, upon detailed

adjudication, reversed the decision of the trial Court and

passed a preliminary decree on 05.03.2003. The decree duly

recognized that Annanthaiah was entitled to a fifty percent

share, while defendant Nos.1 and 2 each had a one-fourth

share in the properties, and it directed that the properties be

partitioned accordingly.

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3. Pursuant to this, the plaintiff filed I.A.No.297 of 2003

under Order XXVI Rule 13 and Section 151 CPC, seeking a

final decree through actual division by metes and bounds,

with appointment of a Commissioner for this purpose. The

trial Court appointed advocate Sri N. Malleshwar as

Commissioner, who prepared survey sketches with the help of

a surveyor, but this process was beset with objections from

various parties. Respondent No.2 argued that the

Commissioner failed to incorporate current valuations or

physical features, while respondent Nos.3 to 5, representing

the legal heirs of defendant No.1, claimed that the

Commissioner overlooked existing constructions and

alienations. Respondents 6 to 13, third-party purchasers of

Item No.6 from defendant No.1, claimed longstanding

possession and sought that Survey No.1034 (Item No.6),

comprising about 12 acres, be allotted exclusively to the share

of defendant No.1, citing prior court clarifications that equities

could be considered from the share of the defendant. These

purchasers had previously challenged the commission

warrant through a Civil Revision Petition before this Court,

which was dismissed, but they were permitted to raise

objections in the trial Court.

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4. The trial Court analyzed these objections and clarified

that the role of the Commissioner was to execute the decree

through division, not valuation or noting alienations; that

valuation matters could be addressed during allotment; and

that shortfalls due to government acquisition and the

exclusion of a graveyard in Survey No.42 were acknowledged.

Concerning Item No.6, valued at Rs.87,48,300/-, the trial

Court held it should be wholly allotted to the share of

defendant No.1, with the value proportionately compensating

the plaintiff and respondent No.2 by assigning land from

Survey No.16, valued at Rs.19.36 lakhs per acre. This

approach ensured that the third-party purchasers' possession

and prior rights were protected while maintaining fairness.

For other properties, the trial Court directed a lot-based

division, with parties or their counsel required to appear on

25th September 2007; absent parties would have the division

made ex-parte, and the allotments would be final. The trial

Court also permitted amendments to sketches if necessary, to

address any inconsistencies arising during the allocation

process. Aggrieved thereby, the present appeal suit is filed.

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5. Heard Sri Y. Srinivasa Murthy, learned Senior Counsel

representing Sri A. Giridhar Rao, learned counsel appearing

on behalf of the appellants as well as Sri Bankatlal Mandhani,

learned counsel appearing on behalf of respondent Nos.9 to

13, 15 and 16.

6. Learned counsel for the appellant submitted that the

impugned order is vitiated by serious legal infirmities and

results in substantial injustice to the appellant and that the

suit in O.S. No. 24 of 1986 was filed for comprehensive

partition of both "A" and "B" schedule properties, and the this

Court in A.S.No.1730 of 1991 had already rendered a

preliminary decree declaring the shares of the parties. He

further submitted that at the stage of the final decree, each

item of the schedule properties, including Item No.6 (Survey

No.1034), ought to have been divided among all co-sharers in

accordance with their declared entitlements. The unilateral

allotment of the entire extent of Ac.12.07 cents in Item No.6 to

respondents 6 to 13, purchasers from the first defendant,

without carving out the shares of the plaintiff and Defendant

No.2, directly contravenes the spirit and command of the

preliminary decree.

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7. Learned counsel for the appellant contended that the

trial Court grossly erred in holding that the interests of the

plaintiff and other shareholders in Item No.6 could be

compensated by allotting land in Item No.2 (Survey No.16),

thus enabling respondent Nos.6 to 13 to retain exclusive

possession of the most valuable segment of the schedule-A

property. He further contended that this approach

undermines the foundational rule in partition jurisprudence:

that no co-sharer can be deprived of their right to a share in

any specific item unless physical partition is either

impracticable or inequitable. In the present case, the land in

Survey No.1034 is agricultural and susceptible to division,

and no convincing reasons were recorded by the trial Court to

justify exclusive allotment to a single party.

8. Learned counsel for the appellant further contended

that while respondent Nos.6 to 13 may be in possession

through alienations made by defendant No.1, such transfers

were made unilaterally and are not binding on the share of the

appellant. The recognition of the trial Court of these

alienations without adjudicating their validity or effect on the

appellant's undivided interest amounts to an error apparent

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on the face of the record. The trail Court failed to exercise

judicial discretion by not even considering a pro rata division

of the land or exploring alternative equitable arrangements

that respected all rights of the parties. He asserted that the

piecemeal manner in which the final decree proceedings were

concluded, by disposing of Item No.6 in isolation while

adjourning the rest for later allotment, was legally untenable

and procedurally irregular. Such fragmented adjudication

creates serious prejudice, particularly when the most valuable

item is disposed of exclusively in favour of third-party

purchasers, leaving other co-sharers remediless. Therefore, he

prayed the Court to set aside the impugned order to the extent

it allots Item No.6 solely to respondent Nos.6 to 13 and also

prayed that the said property be partitioned among all rightful

co-sharers in consonance with the preliminary decree.

9. In support of his submissions, learned counsel for the

appellant relied upon the judgment of the Hon'ble Supreme

Court in Sk. Golam Lalchand v. Nandu Lal Shaw and Ors 1,

wherein in paragraph No.20 and 21, it is held as follows:

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"20. In this view of the matter, the entire property purchased by the two brothers late Salik Ram and late Sita Ram in the year 1959 vide Exh.1 continued to be the joint property in which both of them had equal rights. On their death, the same devolved upon their respective heirs and legal representatives including Brij Mohan, his three sisters on one side and plaintiff-respondent Nandu Lal, his three brothers and five sisters on the other side. Thus, Brij Mohan alone was not competent to execute a sale of the entire property in favour of the defendantappellant S.K. Golam Lalchand, that too without its partition by metes and bounds.

21. Since the suit property has many co-

owners including the plaintiff-respondent Nandu Lal and Brij Mohan, the defendant-appellant S.K. Golam Lalchand could not have acquired right, title and interest in the whole of the suit property solely on the basis of the sale deed dated 19.05.2006 executed by Brij Mohan. The said sale deed, if at all, in accordance with Section 44 of the Transfer of Property Act, 1882 may be a valid document to the extent of the share of Brij Mohan in the property and defendantappellant S.K. Golam Lalchand is free to take remedies to claim appropriate relief either by suit of partition or by suit of compensation and damages against Brij Mohan."

10. On the other hand, learned counsel for the respondents

opposed the submissions of the appellant stating that the final

decree of the trial Court dated 07.09.2007, particularly the

allotment of Item No.6 of the plaint "A" schedule property,

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Survey No.1034, to the share of defendant No.1 and that after

the trial Court appointed an Advocate Commissioner for

dividing the schedule properties, the respondents initially

challenged the warrant by filing a civil revision petition before

this Court and Court dismissed the revision but granted

liberty to raise objections before the trial Court. Accordingly,

all concerned parties, including the respondents, filed

objections to the Commissioner's report and sought its

rejection.

11. Learned counsel for the respondents further submitted

that the land in Survey No.1034 admeasuring Ac.12.23

guntas had been sold by defendant No.1, Garlapati Jaggaiah,

as early as 1342 Fasli to the grandfather of respondent Nos.6

and 7, the late Babu Ramnath Pandya, who was inducted into

possession. Though the original sale deed was misplaced, the

family maintained uninterrupted possession and developed

the land substantially, constructing a rice mill, oil mill,

residential houses, and cultivating the remaining land. Due

to financial difficulties, Babu Ramnath Pandya mortgaged the

developed property to the State Bank of Hyderabad, Bhongir,

which led to a civil suit (O.S.No.2 of 1964), decree, and public

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auction. In 1976, the wife of respondent No.6 purchased the

property in execution proceedings and was delivered

possession. She later sold certain portions to third parties,

and after her death in 2000, respondent Nos.7 to 13, as her

legal heirs, have continued to reside in and enjoy the land.

12. Learned counsel for the respondents contended that the

respondents referred to O.S.No.137 of 1992 filed before the

Principal District Munsiff Court, Bhongir, in respect of a

portion of Survey No.1034, which was decreed in their favour

and that their possession is documented through passbooks,

revenue records, and land acquisition proceedings, including

compensation paid in the year 1993 by the Government for

acquisition of 0.31 guntas. It was contended that these

records affirm their long-standing possession and entitlement.

The respondents also pointed out that they were not made

parties to O.S.No.24 of 1986 and only became aware of the

proceedings in the month of July 2004, following which they

were impleaded during the final decree stage. Therefore, as

there is no illegality in the order of the trial Court and prayed

the Court to dismiss the Appeal Suit.

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13. In support of his submissions, learned counsel for the

respondent Nos.9 to 13, 15 and 16 relied upon the judgments

of the Hon'ble Supreme Court are as follows:

a. In U.P. SRTC v. State of U.P. 2, wherein in paragraph

No.11, it is held as follows:

"11. The principle of res judicata is based on the need of giving a finality to judicial decisions. The principle which prevents the same case being twice litigated is of general application and is not limited by the specific words of Section 11 of the Code of Civil Procedure in this respect. Res judicata applies also as between two stages in the same litigation to this extent that a court, whether the trial court or a higher court having at an earlier stage decided a matter in one way will not allow the parties to reagitate the matter again at a subsequent stage of the same proceedings. (See Satyadhyan Ghosal v. Deorajin Debi [AIR 1960 SC 941 : (1960) 3 SCR 590] .)"

b. In M.L. Subbaraya Setty v. M.L. Nagappa Setty 3 ,

wherein in paragraph No.28, it is held as follows:

28. The trial court for allotting the coffee estate and other immovable properties only to the defendants relied upon the italicized sentence in direction 4 of

(2005) 1 SCC 444

(2002) 4 SCC 743

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the earlier decision. The direction has been misconstrued and misinterpreted by the trial court.

It is true, as contended by Mr Shanti Bhushan, that the direction that the plaintiff is entitled to 2/19th share in the joint family property and that he shall be put in separate possession of the properties giving him share by metes and bounds does not mean that every item of the property is to be divided between co-sharers. It is correct that the only requirement is that property allotted to each co- sharer should bear approximately the same value as corresponds to his share. It may also not be necessary that if the properties consist of movable and immovable properties then each party must necessarily be given a share in all movable and immovable properties. While effecting partition of joint family properties, it may not be possible to divide every property by metes and bounds. The allocation of properties of unequal value may come to the share of a member of a joint family at the time of effecting partition but for that necessary adjustments have to be made. It can also happen that some of the co-sharers on partition may not get any share in immovable property. No hard-and-fast rule can be laid. It depends upon the facts of each case. It depends upon the nature of the immovable property and number of such properties as also the number of members amongst whom it is required to be divided. Properties of a larger value may go to one member. Property of lesser value may go to another. What is necessary, however, is the adjustment of the value by providing for payment by one who gets property of higher value. In short, there has to be equalization of shares. But that is not what has been done by the trial court in the

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present case. The trial court going by the valuation of July 1940 has allotted shares and bonds to the plaintiff and immovable property to the defendants and for this partition, support was also sought to be drawn from the aforequoted sentence from direction

4. That was certainly not the intention. It was a case of a total misinterpretation and misconstruction of the decree passed by this Court which has been set right by the High Court in the judgment under appeal. It was not the direction of this Court that in each and every survey number of the coffee estate, the plaintiff should be given 2/19th share by metes and bounds. We do not think that the impugned judgment of the High Court also directs that.

c. In Janardhan Jog v. Srikrishna 4 , wherein in

paragraph No.6, it is held as follows:

6. The last proposition of Sri Appa Rao, as to the permissibility of making more than one preliminary decree, admits of no doubt. However, the decisions referred by the learned Counsel are based on facts, which have no relevancy to the facts of this case.

The question here, is whether, the trial Court exercised its discretion under Order 12 Rule 6 CPC by applying proper principles and whether there is an unequivocal admission of the first defendant, to attract the said provision of law. A partition suit should comprise of all available properties, as far as possible. This avoids multiplicity of proceedings between the parties regarding the properties

1989 SCC OnLine Kar 111

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available for partition and facilitates settlement of all inter-se disputes in connection with the partible properties amongst the claimants. Though, a sharer has a right to seek his share in specie as far as practicable in the immovable property, circumstances may justify the Court to direct partition in a fair manner by working out the equities, which, may result in one of the sharers not getting the share in each item of the partible immovable properties. Adjustment of conflicting rights and liabilities, is an essential requirement of the partition. "To ignore the liability of one of the parties to the other or others and proceed merely to effect a division without regard, to it, is to ignore the very character of the suit and the nature of the relief, which the Court is bound to grant." (Shambu Mitra, on Co-ownership & Partition 2nd Edn. page

242).

d. In Kailash Pati Devi v. Bhubneshwari Devi 5, wherein

the relevant paragraph is held as follows:

"The purchaser of joint family property from a member of a joint Hindu family may have the right to file a general suit for partition against the members of the joint family and, indeed, that may be the proper remedy for him to adopt to effectuate his purchase. But, that question is of academic importance here since it appears that the property involved in this suit, which was purchased by the appellant from one of the members of the joint

AIR 1984 SC 1802

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Hindu family, is the only joint family property available for being partitioned. There are, therefore, no equities to be adjusted as between the parties. Accordingly, we agree with the concurrent findings recorded by the trial court, the District Court and the High Court and dismiss this appeal. There will be no order as to costs."

e. In K. Adivi Naidu v. E. Durvasulu Naidu 6, wherein the

relevant paragraph is held as follows:

1. The parties cannot ask for deletion of items at the time of passing a final decree. But the alienee has got a right to request the court to work out the equity and the property that has been purchased by him can be allotted to the person from whom he has purchased it. The Lower Court is also perfectly justified in making an observation as follows:--

"The only course open to the alienees in respect of specific portions or undivided portions of subject matter of the suit is only to seek equities if they are entitled in law and in exercise of equity, the court in the course of final decree could allot such properties to the share of the alienor and thereby safeguard or protect the interest of the alienees."

1990 (1) AnWR 475

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f. In Umadevi Nambiar v. Thamarasseri Roman

Catholic Diocese 7, wherein in paragraph No.15, it is held as

follows:

"15. It is not always necessary for a plaintiff in a suit for partition to seek the cancellation of the alienations. There are several reasons behind this principle. One is that the alienees as well as the co- sharer are still entitled to sustain the alienation to the extent of the share of the co-sharer. It may also be open to the alienee, in the final decree proceedings, to seek the allotment of the transferred property, to the share of the transferor, so that equities are worked out in a fair manner. Therefore, the High Court was wrong in putting against the appellant, her failure to challenge the alienations."

g. In Motamarri Venkata Kotamma v. Narra

Lakshmaiah 8 , wherein in paragraph No.10, it is held as

follows:

"10. So far as the second submission is concerned, the learned Counsel is correct when he says that the receiver who is entrusted with the property has to restore the same to the parties as per the directions. This becomes true when the properties were under the possession and enjoyment of the parties to the suit and the Court directs that

(2022) 7 SCC 90

2002 (3) ALD 762

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different parties are entitled for different items of the suit schedule. However, in a case where even by the time the receiver was entrusted with the administration of the properties, if a third party was in possession as of right, such rights cannot be defeated on account of the mere fact that the property came to the administered by the receiver for some time. At the most it can be said that during the administration of the property by the receiver, the rights and obligations of the parties remain in suspended animation and on the conclusion of the suit proceedings they get resurrected. It was not in dispute that respondents were in possession of item 12 of 'B' schedule under agreement of sale executed by defendant No. 3. The rights created in their favour cannot get dissolved simply because the property was entrusted to receiver for administration. It should not be forgotten that during the interregnum the petitioners executed the sale deed in favour of respondents. Thereby the possessory rights of the respondents got transformed into the ownership rights. It was in view of these developments that the respondents got themselves impleaded in the suit to ensure that in the final decree proceedings the said item in allotted to the share of petitioners herein so that it will ensure to their (respondents) benefit since they have already stepped into the shoes of the petitioners.

These consequences provided law cannot be short circuited by placing reliance on certain doctrines which do not apply to the facts of this case. An attempt was made to dispute the correctness of the sale deeds mostly on legal grounds. It is not disputed that the petitioners have executed the sale deeds Ex. B1 and B2. Their contention is that since

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the item of property, which was sold by them was subject-matter of the suit, the sale effected without permission of the Court does not result in conveyance of title to the respondents. One facet of this argument was already dealt in preceding paragraphs. A further aspect to be noticed is that as early as in the year 1964 the respondents filed IA No. 548 of 1964 narrating the factum of execution of agreement of sale in their favour by defendant No. 3 and execution of sale deeds by the petitioners. This was followed up by the respondents by filing application under Order 1, Rule 10 CPC to get themselves impleaded. It was only after the respondents herein were impleaded as defendants 17 to 22 that the preliminary decree was passed. No objection was raised by the petitioners as to the validity of the sale deeds executed by them. If at all there was anyone who was supposed to raise any objection as to the legality or validity of the sales pleaded by the respondents, it was only the petitioners. They did not choose to raise any objection as to the legality or otherwise of the sale deeds. They cannot be permitted to raise the plea after nearly three decades that too in an execution petition. Their plea, even if it is tenable, is barred by principle of constructive res judicata."

h. In K. Adivi Naidu v. E. Duruvasulu Naidu 9, wherein in

paragraph No.5, it is held as follows:

(1995) 6 SCC 150

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"5. Having considered the respective contentions, we are of the view that since the preliminary decree was allowed to become final, the trial court needs to give effect to it. It is settled law that alienees of the alienees have no right to equities. Equally, it is settled law that a coparcener has no right to sell his undivided share in the joint family property and any sale of undivided and specified items does not bind the other coparceners. Since the specific properties were purchased prior to the institution of the suit for partition, though the appellants have no right to equities, it could be said that the respective share to which their principal alienor was entitled would be allottable to them as a special case. However, since the preliminary decree specifically directed that the good and bad qualities of the land should be taken into consideration in effecting the partition, it should, in letter and spirit, be given effect to. While passing final decree, if the lands purchased by the appellants are found more valuable than the lands to be allotted to the respondents, the respective values thereof should be ascertained and the respondents need to be compensated in monetary value. That would be the effect of the preliminary decree as well. Considered from this perspective, the direction issued by the Division Bench would be modified as above, and the trial court would pass the final decree accordingly."

14. The points that arise for consideration in this appeal

are:

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i. Whether the trial Court is right in allotting

Survey No.1034 in favour of Defendant

No.1?

ii. Whether the judgment of the trial Court warrants any interference?

Point No.i:

15. In the light of the submissions made by both the

learned counsel and a perusal of the material available on

record, the principal grievance of the appellant is that the trial

Court erred in allotting Item No.6, Survey No.1034, exclusively

to defendant No.1, thereby excluding the appellant's 50%

share as declared in the preliminary decree passed in

A.S.No.1730 of 1991. However, the appellant himself initiated

the final decree proceedings and sought division by metes and

bounds, during which the Advocate Commissioner was

appointed. The Commissioner's report, though contested by

all sides, was ultimately accepted by the trial Court with a

limited and reasoned modification to accommodate equities

established through long-standing possession and third-party

interest.

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16. The trial Court was justified in exercising equitable

discretion while modifying the Commissioner's report to allot

Survey No.1034 entirely to defendant No.1's share, as

Respondents 6 to 13 were in uninterrupted, possession since

1342 Fasli. The record reflects that defendant No.1 initially

alienated the land in favour of the grandfather of respondent

Nos.6 and 7; the said transferee developed the property and

pledged it to the State Bank of Hyderabad, which

subsequently auctioned it and delivered possession to the wife

of respondent No.6 in the year 1976. Over time, their lawful

possession was solidified through multiple legal events: a

decree in O.S.No.137 of 1992, compensation paid by the

Government for acquisition of Ac.0.31 guntas in the year

1993, and recognition in passbooks and revenue records.

These uncontested facts firmly establish legal possession

independent of the original suit proceedings.

17. Moreover, the appellant himself had advised respondent

Nos.6 to 13, during their impleadment, to seek equitable

allocation of Survey No.1034 in the share of defendant No.1.

Having once supported such an approach, the appellant

cannot now approbate and reprobate. Furthermore, the trial

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Court duly protected the appellant's monetary entitlement by

awarding a value-adjusted share from Survey No.16, which

was assessed at Rs.19.36 lakhs per acre, compared to

Rs.87,48,300/- for Item No.6. Such an arrangement satisfies

the requirement of equity and proportionality laid down by the

Hon'ble Supreme Court in M.L. Subbaraya Setty and K.

Adivi Naidu (cited supra), where it was held that exact metes-

and-bounds partition in each item is not always mandatory,

and value-based compensation can validly substitute when

physical division is impractical or inequitable.

18. The appellant relied on the judgment of the Hon'ble

Supreme Court in Sk. Golam Lalchand is not applicable to the

facts of the present case, as the pertained to a sale by a co-

sharer without partition and without recognition of equities or

possession, whereas in the present case, the third-party

purchasers were not only in possession for decades but also

protected through ancillary litigation and public acquisition

proceedings. As held by the Hon'ble Supreme Court in

Umadevi Nambiar and Motamarri Venkata Kotamma (cited

supra), that alienees need not challenge alienations in a

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partition suit so long as their equities can be worked out in

the final decree.

19. It is also pertinent to note that the extent of Survey

No.1034 is only 12 acres out of the total 198 acres in suit "A"

schedule, and the modified arrangement ensured that the

shares of the plaintiff and defendant No.2 were not diluted but

redistributed from other properties. In such large-scale

partitions, allocation of specific items to specific sharers,

particularly where long-standing possession and construction

exist, is a recognized judicial practice, as reaffirmed in

Janardhan Jog and Kailash Pati Devi (cited supra). There is

thus no procedural impropriety or legal error in the trial Court

accepting the Commissioner's report with modification,

drawing lots for remaining items, and preserving the rights of

non-appearing parties by setting a date with liberty to amend

sketches, if needed.

Point No.ii:

20. In view of the above discussion in point No.i, there is no

illegality in the judgment of the trial Court. The trial Court

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discussed all the issues and it is a well reasoned judgment

and there are no grounds to interfere in the judgment.

21. In view thereof, this Appeal Suit is dismissed confirming

the order dated 07.09.2007 passed in I.A.No.297 of 2003 in

O.S.No.24 of 1986 by the learned Senior Civil Judge, Bhongir.

There shall be no order as to costs.

Miscellaneous applications, if any pending, shall stand

closed.

_______________ K. SUJANA, J Date: 26.06.2025 SAI

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THE HONOURABLE SMT JUSTICE K. SUJANA

P.D. JUDGMENT

IN

Date: 26.06.2025

SAI