THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT NO.53 OF 2003 Date: 13-07-2011 Between: Kolla Dharma Kumar and another .. Appellants And Kolla Jyothi Kumar and others .. Respondents THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT NO.53 OF 2003 JUDGMENT: The defendants 2 and 3 in O.S.No.79 of 1994 on the file of the Principal Senior Civil Judge, Tenali are the appellants herein. The suit was filed for partition of the plaint schedule property into two equal shares and allot one such share to the plaintiffs 1 and 2. The allegations in the plaint go to show that the 1st plaintiff, defendants 1, 2 and 4 are the sons of one late K.Kasi Viswanadham and there was a partition between all the brothers under a partition deed dated 29.12.1978 and in the said partition the schedule property was allotted to the defendants 1 and 4, which was kept joint. Subsequently, the share of the 4th defendant was purchased by the plaintiff under two sale deeds dated 25.10.1991 and 20.10.1991 for valid consideration. As the defendant No.4 resides in America, all the share of the 1st defendant was purchased by D2 and D3. The plaintiff demanded the defendants for partition of the properties and they did not cooperate and hence, the suit. The defendant No.2 filed written statement denying the share in favour of the plaintiff by the defendant No.4 and he himself claimed to have purchased the property from 4th defendant for a consideration of Rs.1,50,000/- under an agreement of sale and paid a sum of Rs.32,000/- on 29.12.1978. Therefore, the sale in favour of the plaintiff is not valid. The defendant No.3 filed a memo adopting the written statement of the 2nd defendant. On the basis of the above pleadings, the following issues were framed for trial: 1. Whether the plaintiffs are entitled for half share in the schedule property? 2. Whether D2 is in possession and enjoyment of the schedule property? 3. Whether the sale deeds dated 25.10.1991 and 26.10.1991 are true and valid documents and the same are enforceable? 4. Whether there was any contract of sale in between the plaintiffs and D4? 5. Whether there is any contract of sale in between D2 and D4? 6. Whether the suit is barred by limitation? 7. Whether the suit is bad for non-joinder of necessary parties to the suit? 8. Whether the plaintiff is entitled to a decree as prayed for? 9. To what relief? On behalf of the plaintiffs, P.Ws.1 to 3 were examined and marked Exs.A-1 to A-8 and on behalf of the defendants, D.Ws.1 to 3 were examined and marked Exs.B-1 to B-8. After considering the material and the evidence on record, the learned Principal Senior Civil Judge, Tenali decreed the suit of the plaintiffs and aggrieved by the said judgment and decree, the present appeal is filed. The points that arise for consideration are: 1. Whether the plaintiffs are the purchasers of the share of the 4th defendant and entitled to half share? 2. Whether the contract of sale pleaded by the defendant No.2 is true and valid? 3. Whether the judgment and decree passed by the learned Principal Senior Civil Judge, Tenali is legal and sustainable? POINTS 1 to 3: There is no dispute about the relationship between the parties and also the prior partition under Ex.A-1 dated 29.12.1978. It is not in dispute that the property in the suit has fallen to the share of defendants 1 and 4. There is also no dispute about the fact that the share of the defendant No.1 was said to have been purchased by Defendants 2 and 3 and they became entitled to half share. According to the case of the plaintiff, defendant No.4, who was in America, sold his half share to him and his wife to the plaintiffs under Exs.A-2 and A-3 and, therefore, they became entitled to half share. As against the purchase claimed by the plaintiffs from defendant No.4, the 2nd defendant has set up an agreement of sale said to have been entered by the defendant No.4 for sale of his share and paid part of the consideration and is entitled to his share. Evidently, when the sale transactions are disputed, the burden is on the plaintiffs to prove Exs.A-2 and A-3. The evidence of P.W.2, who is associated with the documents as an attestor and identifying witnesses, clearly goes to show that these sale deeds were executed by defendant No.4 after receiving of the consideration. The lower Court has rightly accepted the same. The rights of the plaintiff can only be defeated by the defendant by showing a better title or interest in the property. It has come to light during the arguments that the 2nd defendant is said to have filed the suit O.S.No.109 of 2001 for specific performance of the alleged contract of sale with defendant No.4 and the said suit was dismissed on 14.03.2008. As against that dismissal, appeal in A.S.No.107 of 2008 is also said to have been filed and it was also dismissed. Therefore, as matter stands, the contract set up by the defendant No.2 is not proved and the property was sold to the plaintiff by defendant No.4 and it is proved by Exs.A-2 and A-3 and the evidence of P.W.2. Therefore, the plaintiffs have become entitled to half share of the defendant No.4, whereas the defendants 2 and 3 have become entitled to half share of defendant No.1 by virtue of their purchase. Therefore, the decree for partition granted by the lower Court is legal and does not call for any interference by this Court. Accordingly, the points are answered. In the result, the Appeal Suit is dismissed. Each party to bear their own costs. ________________________ N.R.L.NAGESWARA RAO, J 13-07-2011 MR THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT NO.53 OF 2003 Date: 13-07-2011 MR