Thulasi vs Dandu Mallesh

This Appeal Suit is filed by the unsuccessful plaintiffs in O.S.No.110 of 2019 assailing the Judgment and Decree dated 30.04.2019 passed by the learned XVI Additional District & Sessions Judge-cum-Additional Metropolitan Sessions Judge, Rangareddy District, whereby the original suit of the plaintiffs for partition and separate possession of the suit schedule property, was dismissed.

For the sake of convenience, the parties hereinafter are referred to as they are arrayed before the trial Court.

The brief facts of the case are that:

Plaintiff Nos.1 to 4 are the daughters of defendant No.1, plaintiff Nos.5 and 6 are the sons of defendant No.2, plaintiff Nos.7 and 8 are daughter and son of defendant No.3, plaintiff No.10 is son and plaintiff No.9 is widowed daughter-in-law of defendant No.4 and plaintiff Nos.11 and 12 are son and daughter of defendant No.5. Defendant Nos.1 to 5 are pattedars of agricultural land admeasuring Ac.5-00 guntas in Survey Nos.811, 812, 814 and 815 of Ankireddypally Village, Keesara Mandal, Rangareddy District, as per Judgment and Decree dated 06.12.2005 passed by the learned Principal Senior Civil Judge, Rangareddy District at LB Nagar in O.S.No.52 of 1986, which was filed for partition and separate possession of agricultural land admeasuring Ac.30-00 guntas in Survey Nos.811, 812, 814 and 815 of Ankireddypally Village, Keesara Mandal, Rangareddy District.

The said extent of Ac.30-00 guntas was joint family property of late Dandu Veeraiah, late Kattela Lingaiah, late Kolkuru Lingaiah, late Kolkuru Veeraiah, late Chanchala Narsaiah and Chenchala Narayan. The family of late Dandu Veeraiah claimed 1/6th share i.e., Ac.05-00 guntas out of Ac.30-00 guntas in Survey Nos.811, 812, 814 and 815 of Ankireddypally Village, Keesara Mandal, Rangareddy District and the said suit in O.S.No.52 of 1986 was decreed allotting Ac.05-00 guntas of land to the branch of late Dandu Veeraiah. The Mandal Revenue Officer, Keesara Mandal incorporated the names of the pattedars in respect of the agricultural land.

Plaintiffs demanded defendant Nos.1 to 5 for partition of suit schedule property and for allotment of their respective shares in the joint property. Later on, the plaintiff came to know that defendant Nos.1 to 5 have sold an extent of Ac.03-27 guntas in Survey Nos.812 and 814 of Ankireddypally Village, Keesara Mandal, Rangareddy District in favour of defendant No.6 vide Registered Sale Deed bearing document No.1658 of 2007 dated 29.01.2007.

Plaintiffs and defendant Nos.1 to 5 are coparceners and the suit schedule property devolved upon them from their ancestors. Plaintiff Nos.1 to 4 and defendant No.1 are jointly entitled to Ac.01-00 guntas out of suit schedule property. Plaintiff Nos.5, 6 and defendant No.2 are jointly entitled for Ac.01-00 guntas out of suit schedule property. Plaintiff Nos.7, 8 and defendant No.3 are jointly entitled to Ac.01-00 guntas out of suit schedule property. Plaintiff Nos.10 and 16 along with defendant No.4 legal heirs of late Dandu Anjaiah are jointly entitled to Ac.01-00 guntas out of suit schedule property. Plaintiff Nos.11, 12 and defendant No.5 are jointly entitled to Ac.01-00 guntas out of suit schedule property. Defendant Nos.1 to 5 are entitled to 61.6 guntas out of Ac.05-00 guntas only.

It is the case of plaintiffs that defendant Nos.1 to 5 are not exclusive owners of Ac.3-27 guntas which was alienated in favour of defendant No.6 and the said sale deed is not binding over the plaintiffs and sought for a preliminary decree of partition.

Defendant Nos.1 to 5 filed written statement through General Power of Attorney Holder i.e., defendant No.6 denying all the averments of the plaint including the relationship between the plaintiffs and defendants. It is further denied that said Ac.30-00 guntas in Survey Nos.811, 812, 814 and 815 of Ankireddypally Village, Keesara Mandal, Rangareddy District was joint property of late Dandu Veeraiah, late Kattela Lingaiah, late Kolkuru Lingaiah, late Kolkuru Veeraiah, late Chanchala Narsaiah and Chenchala Narayan. Further, denied the cause of action for filing suit and prayed to dismiss the suit.

Based on the rival contentions, the following issues were framed by the trial Court:

i. Whether the suit schedule property is joint family properties of plaintiffs and defendants?

ii. Whether plaintiffs are entitled to seek partition of suit schedule property and for allotment of Ac.0-08 guntas each to plaintiff Nos.1 to 4 and for allotment of Ac.0-13.3 guntas each to plaintiff Nos.5 to 12?

iii. Whether the plaintiffs are entitled to claim the recovery of properties from the defendants?

iv. To what relief?

To prove the case of the plaintiffs, plaintiff Nos.8 and 10 are examined as PW1 and PW2 and got marked Exs.A1 to A6. Defendant No.6 is examined as DW1 and no documentary evidence was adduced on behalf of defendants.

After hearing both sides and after considering the entire material available on record, the trial Court dismissed the suit vide impugned Judgment and Decree dated 30.04.2019. Aggrieved by the same, the plaintiffs have preferred the present appeal suit.

Heard learned counsel for the appellant. Even after service of notice, none appeared for respondents. Perused the material on record.

Now the point for consideration is:

Whether the impugned the Judgment and Decree dated 30.04.2019 passed by the learned XVI Additional District & Sessions Judge-cum-Additional Metropolitan Sessions Judge, Rangareddy District, is liable to be set aside?

POINT:

It is the contention of the learned counsel for the appellants-plaintiffs that respondent Nos.1 to 5 were allotted to an extent of Ac.05-00 guntas and the property is an ancestral property and the appellants being the coparceners and the said ancestral property falling to the shares of the coparcener remains character of coparcenary property are entitled for their share and as respondent Nos.1 to 5 sold away the property in favour of respondent No.6 depriving the rights of the appellants and that the trial Court without considering the above aspects, dismissed the suit vide impugned Judgment and prayed to allow this Appeal Suit.

On the other hand, the case of the respondents as can be seen from the written statement, is total denial. Even the relationship between plaintiff and defendant Nos.1 to 5 is also denied. There is no specific plea taken by defendants except denying all the averments of the plaint.

To prove their case, the plaintiffs got examined plaintiff No.8 and 10 as PW1 and PW2 and got marked Exs.A1 to A6. On behalf of defendants, defendant No.6 is examined as DW1 and no documentary evidence was adduced by the defendants.

As seen from the impugned Judgment, after considering the entire evidence, it is observed that the plaintiffs pleaded that an extent of Ac.3-17 guntas was sold away to defendant No.6 vide Registered Sale Deed bearing document No.1658 of 2007 dated 29.01.2007 which was marked as Ex.A2, but as per Ex.A2-Sale deed the extent mentioned therein is Ac.06-25 guntas.

It is the case of the plaintiffs that the joint property was partitioned as per Judgment and decree in O.S.No.52 of 1986. But no copy of final decree or final decree petition were filed before the trial Court or before this Court to show that they obtained separate possession after demarcation of land by virtue of preliminary decree in O.S.No.52 of 1986. Even though a share to an extent of Ac.05-00 guntas was allotted to the branch of late D.Veeraiah, it is only the share allotted by way of preliminary decree, but not the specific property with boundaries in the final decree.

Defendant Nos.1 to 5 did not putforth any defence in the written statement except denying the case of the plaintiffs. Moreover, when there is no allotment of share of property to plaintiffs by way of final decree in O.S.No.52 of 1986, the plaintiffs cannot seek for partition and separate possession of the suit schedule property. Even during the course of hearing, there is no clarity given by the learned counsel for the appellants-plaintiffs with regard to allotment of any property in their favour by virtue of final decree in O.S.No.52 of 1986. Moreover, plaintiffs cannot pick and choose particular item with specific boundaries to claim their share. Therefore, plaintiffs are not entitled for partition and recovery of possession of suit schedule property.

It is further contention of the plaintiffs that defendant No.6 is in possession of Ac.3-17 guntas by virtue of registered sale deed under Ex.A2 by defendant Nos.1 to 5 and sought for recovery of possession. As discussed above, there is no specific property at all allotted to plaintiffs and defendant Nos.1 to 5, more particularly suit schedule property. The plaintiffs failed to prove that the suit schedule property is a coparcenary property and that defendant Nos.1 to 5 are in possession of the said property prior to alienation in favour of defendant No.6. Even in the written statement, defendant Nos.1 to 5 denied the execution of sale deed in favour of defendant No.6. Moreover, even though plaintiffs have any right or interest over the property partitioned in O.S.No.52 of 1986, they ought to have agitated their grievance in that suit itself but they are not entitled to file a separate suit for partition again, which leads to multiplicity of litigation and difference of opinion.

In the light of observation given by the learned trial Court that there is difference in property claimed by plaintiffs and the property under registered sale deed executed in favour of defendant No.6, there is any amount of doubt on allotment of property in favour of plaintiffs and defendants. Above all, plaintiffs failed to show that any property was allotted in favour of plaintiffs and defendants after preliminary decree passed in O.S.No.52 of 1986 by way of final decree. Only after allotment of respective shares in final decree in O.S.No.52 of 1986, plaintiffs can claim their rights in respect of such allotted shares. But before passing any final decree plaintiffs cannot file fresh suit with regard to their rights in respect of property that was not allotted to them as per law.

A perusal of the impugned Judgment passed by the trial Court, it is evident that the trial Court has considered all the aspects meticulously and arrived to an appropriate conclusion of dismissing the suit. Therefore, interference of this Court with the findings of the learned XVI Additional District & Sessions Judge-cum-Additional Metropolitan Sessions Judge, Rangareddy District, is unwarranted. Hence, this Appeal Suit is devoid of merits and liable to be dismissed.

In the result, this Appeal Suit is dismissed confirming the Judgment and Decree dated 30.04.2019 passed by the learned XVI Additional District & Sessions Judge-cum-Additional Metropolitan Sessions Judge, Rangareddy District. There shall be no order as to costs.

As a sequel, pending miscellaneous applications, if any, shall stand closed.