THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT NO.218 OF 2001 JUDGMENT: The defendants 1 to 3, 7 and 8 in O.S.No.2 of 1996 on the file of the court of Subordinate Judge, Narsapur are the appellants herein. The suit was filed for declaration of title in respect of Ac.3.92 cents of land situated at Perupalem village, Mogalthur Mandal, West Godavari District. The allegations in the plaint goes to show that the suit schedule property belonged to one Gopu Venkata Narasamma and after her death, her daughters Andey Rattamma and Mekala Narayanamma succeeded to the properties. M.Narayanamma executed a registered settlement deed dated 14-02-1959 directing the properties to be enjoyed by her daughter Kummarapurugu Punyavati @ Pullamma in respect of the western side half of the plaint schedule property and subsequently Punyavathi died by executing a will dated 12-08-1981 bequeathing the western side half of the schedule property to her daughter-Mekala Baby Sarojini. Sofar as the Eastern side half of the plaint schedule property is concerned, Andey Rattamma executed a will on 16-02- 1986 bequeathing the same to be enjoyed by the plaintiffs 2 to 4 and died subsequently. M.Baby Sarojini who has got title to western side of the plaint schedule property executed an agreement of sale on 01-09-1983 and subsequently executed a registered deed on 08-12-1983 in favour of the first plaintiff with regard to her rights derived under will from her mother. Therefore the plaintiffs are the owners of the suit schedule property. When the plaintiffs 2 to 4 are minors and as some of the defendants attempted to dispossess, the plaintiffs filed a suit O.S.No.235 of 1988 on the file of the court of Principal District Munsiff, Narsapur for an injunction and the said injunction application was dismissed and thereafter C.M.A was filed and in the meantime the defendants have trespassed into the suit schedule property and they have been in possession and enjoyment of the property. The plaintiffs have sought permission to withdraw the suit O.S.No.235 of 1988 with liberty to file a fresh suit and subsequently the present suit is filed for declaration of title to the suit schedule property and for recovery of possession. The first defendant filed a written statement disputing the will of Mekala Narayanamma with regard to western side half of the suit schedule property. The allegation that Mekala Narayanamma executed a registered settlement deed on 14-02- 1959 with regard to western side half of the suit schedule property is disputed. So also the will of Punyavati on 12-08-1981 with regard to western side half of the property in favour of M.Baby Sarojini is also disputed. It was further pleaded that Punyavati used to enjoy the northern side half of the suit schedule property and after her death, her husband and sons used to enjoy the same. The mother of the first plaintiff Ande Rattamma was enjoying the southern side half of the suit schedule property till her death, which was inherited by her. The will said to have been executed by Ande Rattamma on 16-02-1986 is also disputed. The allegation that the plaintiffs were in possession and enjoyment of the suit schedule property prior to the filing of suit for injunction is also disputed. It was further pleaded in paras.8 and 9 of the counter as under:- Para.8) this defendant humbly submits that the property that was succeded by M.Narayanamma was settled upon Kummarapurugu Punyavati @ Pullamma. As Punyavati died inteste the property devolved upon the husband Venkateswaraz Rao and sons Satyanarayana and Suryanarayana as already mentioned above. Since the death of Punyavati the said Venkateswara Rao and his two sons are in possession and enjoyment of the entire property of Punyavati as a matter of right. It is submitted that the first defendant and his brother i.e., 7th and 8th defendants purchased Ac.0.50 cents of land out of northern side half of Ac.1.96 cents i.e., out of AC.3.92 cents in R.S.No.197/1 of Perupalem village which is a subject matter 0f the suit schedule property under registered sale deed dated 28-10- 1983 from the husband and sons of Punyavati. Thus the first defendant and 7th and 8th defendants are the absolute owners of the property covered by the said registered sale deed dated 28-10-1983., Para.9) this defendant further submits that the third defendant herein purchased an extent of Ac.0.80 cents out of northern side half of Ac.1.96 cents. Out of Ac.3.92 cents in RS No.197/1 of Perupalem village more so particularly described i.e., the registered sale deed dated 28-10-1983 from the husband and sons of Punyavati. So the third defendant is the absolute owner of the property covered by the above mentioned sale deed and she is in the exclusive possession and enjoyment of the same since the date of purchase.” Further it was pleaded that there is no cause of action to file the suit and the suit is liable to be dismissed. The second defendant filed a written statement almost adopting the contentions raised by the first defendant and also claims to have purchased an extent of Ac.0.12 cents from out of Ac.0.80 cents from Andey Veera Raghavamma under an agreement of sale and thereafter a registered sale deed was said to have been executed on 05-02-1992 and a house was said to have been constructed. The defendants 3, 7 and 8 have filed a memo adopting the written statement filed by the first defendant. The defendants 4 to 6 who are said to be the subsequent purchasers from the first defendant have raised several contentions disputing the title and rights of the plaintiffs in the suit schedule property. On the basis of the pleadings, the following issues have been framed for trial:- 1. Whether the plaintiffs are entitled for declaration and for possession of the plaint schedule properties? 2. Whether the sale deeds referred to in the written statement of the defendants are valid and binding? 3. Whether the will dated 12-08-1981 is true, valid and duly executed 4. To what relief? On behalf of the plaintiffs, PWs.1 to 4 are examined and marked Exs.A-1 to A-12. On behalf of the defendants DWs.1 to 8 are examined and marked Exs.B-1 to B-26. After considering the evidence on record, the learned Senior Civil Judge did not accept the will in favour of Baby Sarojini and as against the plea of the defendants that there was a division of northern side half portion, passed a decree with regard to possession of the property taking into division of the property into eastern and western portions as claimed by the plaintiffs and decreed the suit. Now the points that arise for consideration are:- 1. Whether the plaintiffs are entitled for the relief as claimed and granted by the lower court? 2. Whether the suit for declaration of title and recovery of possession is maintainable? 3. Whether the division pleaded by the plaintiffs and executed by the lower court between the Andey Rattamma and Mekala Narayanamma is true? 4. To what relief? POINTS:- There is no dispute between the parties that the suit schedule property originally belonged to one Gopu Venkata Narasamma and it was succeeded by Andey Rattamma and Mekala Narayanamma. Plaintiffs 2 to 4 claims as heirs of Andey Rattamma; whereas the defendants contend that they have purchased the property from some of the heirs of Punyavati, who was the daughter of Mekala Narayanamma. There is also no dispute between the parties that the sisters have got equal share in the properties and the fact that Narayanamma executed a registered settlement deed in favour of Punyavati is also not seriously disputable fact. The only dispute between the parties which now survives for consideration in this appeal is whether there was partition between Narayanamma and Rattamma, whereunder Narayanamma got the western portion of the suit schedule property and Ande Rattamma got the eastern portion of the suit schedule property as claimed by the plaintiffs or whether there was a division between them whereunder they agreed to partition the northern portion and southern portion of the property. Evidently, to substantiate the claim of the plaintiffs that Rattamma and Narayanamma have divided the properties, there is no document and in fact the evidence of PW.1 also discloses that there is no document available for him to prove the same, though the allegations made in the plaint that the gift deed Ex.A-1 shows that the western property said to have been conveyed to Punyavati. It is admitted by both parties that such description is not available. Therefore, as matter stands and from the own admission of the plaintiffs, there is nothing on record to show that eastern portion has fallen to the share of Rattamma and the western portion has fallen to the share of Narayanamma. In fact while considering this aspect, the lower court in para.73 of the judgment, the learned Senior Civil Judge referred to some of the documents filed by the parties and particularly Ex.B-2 and taking into consideration the boundary description of one Andey Satyam came to the conclusion that probable division of the properties is on the eastern and western side. The learned counsel for the appellants contends that the description of Satyam is difficult to identify with any of the parties since the name of the plaintiff and the first defendant is one and the same and there are several persons with the same name and when the evidence on record clearly goes to show that there is no documentary evidence to show the partition between the sisters on the eastern and western side, the unidentifiable recital in Ex.B-2 cannot be taken into consideration. In fact except this Ex.B-2 document, evidently there is no material on record to show that there was a partition between the sisters and that they have got the property divided towards eastern and western side as pleaded by the plaintiffs or on the northern side or southern side as pleaded by the defendants. Therefore, as matter stands, there is no dispute about the fact that the plaintiffs 2 to 4 will be entitled to the share of Andey Rattamma by virtue of will executed by her in the year 1986. The other half of the property was evidently succeeded by Punyavati under the gift deed and after her death, her children will be entitled to the property since the will set up in favour of Baby Sarojini is not believed by the lower court. The defendants are alienees from the husband and sons of late Punyavati. Evidently, there is nothing on record to show that there was a division of the property between the heirs of Punyavati after her death. What-ever the alienation that has been effected is only un-divided share of Punyavati succeeded by her heirs. Therefore, as can be seen from the findings of the lower court and also the evidence on record, the fact that the plaintiffs will be entitled to a half share in the suit schedule property which was declared by the lower court is concerned, it does not call for any interference. Since this being a suit for possession of the property and when there is a dispute with regard to the partition amongst the original owners of the property, which could not be conclusively proved by any of the parties and the defendants are claiming by way of purchase as alienees from sharers of the other half of the property, the interest of justice would meet while declaring the rights of the plaintiffs for half of the suit schedule property and also the share to the extent of which Baby Sarojini is entitled is to the first plaintiff. A decree for partition of the properties is passed between the parties whereunder the court shall determine the division of the properties as per the shares and also to determine the good and bad and equities, the parties are entitled, keeping in view the alienation effected by the legal representatives of Punyavati. The disadvantages if any suffered by the plaintiffs by virtue of a division and the equities to be given to the subsequent purchasers shall be compensated at the time of passing of the final decree. In the final decree proceedings the legal heirs of Punayavati who are her husband, sons and Baby Sarojini also shall be added as parties to the proceedings and the lower court shall determine the extent of alienation and allot their shares to the purchasers from them. It is needless to say that if any other proceedings regarding suit schedule property are pending the parties are at liberty to get clubbed along with final decree proceedings and the final decision shall be passed by the court. Accordingly, the points are answered. With the above modification the Appeal Suit is allowed and accordingly a decree for partition of the properties is passed as mentioned above. Each party to bear their own costs. _______________________ N.R.L.NAGESWARA RAO,J 24-03-2011 TSNR