IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE ELEVENTH DAY OF JUNE TWO THOUSAND AND TEN PRESENT: THE HON'BLE SRI JUSTICE P.S. NARAYANA APPEAL SUIT No.1155 of 1996 Between: Chennu Rajagopala Rao ..... APPELLANT AND Chennu Narasamma and others ..... RESPONDENTS JUDGMENT: This appeal is filed by the appellant/plaintiff as against the decree and judgment in O.S.No.149 of 1983 on the file of the Subordinate Judge, Machilipatnam. 2. Respondents 8 to 13 were brought on record as the legal heirs of respondent No.5 as per the Court order dated 03-07-2009 in A.S.M.P.No.524 of 2009. 3. Sri A. Ramalingeswara Rao, learned counsel representing the appellant had taken this Court through the grounds of appeal and also would maintain that though the suit was partly decreed and a preliminary decree was passed the petitioner had challenged the said findings on the ground that he is entitled to a larger share. The learned counsel also specifically pointed out to the grounds No.2 to 13 raised in the grounds of appeal and would maintain that in the light of the same the decree and judgment of the Court of first instance of the trial Court to be modified. 4. Sri T.S. Anand, learned counsel representing respondents 1 to 3 had taken this Court through the findings recorded by the trial Court and would maintain that in the light of the convincing findings recorded this is not a fit matter to be interfered with. 5. Sri Venkata Ranga Das Kanuri, learned counsel representing respondents 8 to 13 the legal representatives of respondent No.5 also would maintain that in the light of the reasons recorded by the trial Court the appeal to be dismissed. 6. Heard the learned counsel. 7. In the light of the submissions made by the learned counsel on record the following points arise for consideration in this appeal: 1. Whether the findings recorded by the trial Court partly decreeing the suit to be confirmed or to be disturbed in the facts and circumstances of the case ? 2. If so, to what relief the parties would be entitled to ? 8. POINT No.1:- For the purpose of convenience the parties hereinafter would be referred to as plaintiff and defendants as shown in O.S.No.149 of 1983 on the file of the learned Subordinate Judge, Machilipatnam. The suit was filed for partition and separate possession of the respective shares and for future profits as well. The averments made in the plaint are as hereunder: One Chonnu Ramakrishnaiah, and 1st defendant are husband and wife respectively. The said Chennu Ramakrishnaiah died in the year 1974 as intestate. One deceased Veera Raghavaiah who is the husband of the fourth defendant is the 1st son, plaintiff herein is 2nd son, 2nd defendant is third son and 3rd defendant is the daughter of their parents. The husband of the 4th defendant died about 20 years prior to the filing of the suit and she has been added as a formal party not entitled for any share in the suit properties as her husband got separated long back. The above stated Ramakrishnaiah died in the year 1974 as intestate leaving behind him, the family properties which were self acquired during his life time. Ever since the demise of the said Ramakrishnaiah, entire properties are being managed by their mother the 1st defendant herein for herself, the plaintiff and the defendants 2 and 3 herein. The plaintiff being class I heir is entitled for his share in the suit proportion. In spite of repeated demands of the plaintiff, the first defendant did not cooperate for partition and for allotment of his share at the instance of the husband of 3rd defendant who is Arjuna Rao. In fact, the said Arjuna Rao made the plaintiff to execute a promissory note in his favour with false recitals for an amount of Rs.13,000/- under the guise of family debt recently. The suit properties which are lands, house property and gold ornaments are in joint possession and enjoyment of the plaintiff and the defendants 1 to 3. The agricultural land fetch yearly income of Rs.10,000/- and he is entitled for 1/4th share future profits from the date of plaint and hence the suit. 9. The first defendant filed written statement with the following averments: The relationship between the parties as stated in the plaint is correct. The allegation that the husband of the 4th defendant by name Veera Raghavaiah got separated from the joint family is not correct. The 1st defendant did not manage the properties after the death of her husband but the plaintiff alone managed the same. The plaintiff was married one year prior to the death of his father and he separated himself and put up a separate family with his wife. After the death of his father, he returned and lived in the house for about ten months only, and began to manage Ac.6-50 cents of land and spent for himself without giving any amount to the 1st defendant and other defendants. By the time of the death of his father his father was indebted to others. The said Ramakrishnaiah mortgaged the house property for Rs.50,000/- in Vadlamannadu mortgage bank at Podana which is three or four days prior to his death. The plaintiff took that amount representing that he would discharge the mortgage debt. But he did not do so. The said Ramakrishnaiah handed over the management of the land to the plaintiff over four or five years prior to his death since he became depressed because of the death of his eldest son. The plaintiff deliberately incurred debts forgetting the lands cultivated and the 1st defendant was forced to discharge them. The said Ramakrishnaiah committed suicide because of the plaintiff as he opened the book shop under the style and name of Raj Book House in Rebertsonpet locality at Machilipatnam. The plaintiff also persuaded the 1st defendant with sweet and deceptive words received her Sridhana jewellery and sold away the same and 1st defendant was forced to spend for the family. The education of the 2nd defendant also was neglected by the plaintiff. The said Ramakrishnaiah purchased Ac.1.00 of land in Malleswaram village with his own funds in the name of the plaintiff whom he was a miner. The marriage of third defendant was performed during the lifetime of the said Ramakrishnaiah who promised to give Ac.2-00 of land towards her pasupukumkuma and after his death Ac.2-00 was gifted to her. As the plaintiff failed to look after the defendant No.1 and his brothers, the defendants 1 and 2 incurred expenses for marriage of the daughter of 4th defendant about 1 and half years ago and an amount of Rs.13,500/- was provided by the husband of the 3rd defendant. The plaintiff refused to share his burden. Therefore, a dispute arose and raised before the elders and they advised the plaintiff to discharge the debt and to give possession of the land to the 1st defendant and manage the book shop by himself and he has also agreed in 1982, but instructed the farm hand to leave the land swallow, but being honest and faithful man to the 1st defendant, he reported the matter to him who asked him to continue to be in possession of the same. The plaintiff is liable to discharge the debts incurred for his family and also account for the income from the lands and from the business from 1970 till the month of April 1982 and also for the gold ornaments. The 2nd defendant was married about 8 months prior to filing of the above suit and the plaintiff also did not attend the marriage or spent any money. The plaintiff sold away Ac.1-00 of land and it has to be treated as part of the land to be partitioned and in working out equities it has to be allotted to his share as it was purchased in the plaintiff’s name nominally by his father. The allegation of the plaintiff that the lands fetch an income of Rs.10,000/- p.a., and it was realized by 1st defendant is false. The amount realized was hardly sufficient for family expenses and for discharging debts and the 1st defendant was getting a net yield of about 9 bags per acre per annum. The first defendant discharged the debt shown in the schedule and the plaintiff was allotted a share in it and equities worked out. The plaintiff collected Rs.400/- in 1982 from the income of the land which is also accountable, and this defendant is always ready for partition of the land amicably. The defendants are residing in ‘B’ schedule house and is not amenable for being divided into four equal shares. The plaintiff came back to his house with an ulterior motive and tried to evict the 1st defendant forcibly but did not succeed. He is in occupation of half of the house. The 1st defendant discharged the debt of Rs.200/- due to one Pragarla Nancharanan, which incurred by Ramakrishnaiah, who is her husband. She also spent about Rs.3,000/- towards the maintenance of the house and Rs.600/- for construction of toilets. The said amount was provided by 2nd defendant who is working at Jodhapur. There are no articles described in ‘C’ schedule with the 1st defendant and they were taken away by the plaintiff himself and the same were belonged to 1st defendant. The plaintiff has given an account of it and the suit is liable to be dismissed. 10. Defendants 2 to 4 filed adoption memo. 11. The fifth defendant who is said to be tenant filed written statement pleading that he being the tenant of plaint schedule agricultural land rent has been paying regularly to the first defendant and he had taken lease in the year 1974 and has been paying rents without any default whatsoever and he is prepared to pay the rent or deposit the rent in Court and hence, the suit to be dismissed. 12. It is needless to state that the fifth defendant is the fifth respondent. The fifth defendant Vemula Krishna/respondent No.5 herein died and respondent Nos.8 to 13 were brought on record in A.S.M.P.No.524 of 2009 as already aforesaid. 13. On the strength of these pleadings the following issues were settled by the trial Court: 1. Whether the plaintiff is entitled to the relief of partition of the plaint schedule properties into four equal shares and for separate possession of one such share ? 2. To what future profits, if any, is the plaintiff entitled ? 3. What are the debts due by the family ? 4. To what equities, if any are the plaintiff and defendants entitled ? 5. What are the properties that are liable for partition ? 6. To what share, if any, is the plaintiff entitled and the properties that are liable for partition ? 7. To what relief ? Following additional issue also had been settled by the trial Court: Whether D-7 is an unnecessary party to the suit ? 14. The learned Judge recorded the evidence of PWs.1 to 3 and also DW-1. Exs.A-1 to A-6 and Exs.B-1 to B-11 were marked. The learned Judge recorded reasons commencing paragraph Nos.9 to 25 and ultimately granted a preliminary decree for partition of plaint ‘A’ and ‘B’ schedule properties into four equal shares considering good and bad qualities by metes and bounds and put the plaintiff in one such share. The suit against the defendants 4 to 7 had been dismissed with costs. 15. This Court had given anxious consideration to the findings recorded by the trial Court. The trial Court in fact appreciated the oral evidence of PWs.1 to 3 and as well oral evidence of DW-1 and further appreciated Ex.A-1 office copy of registered notice; Ex.A-2 returned notice of 1st defendant; Exs.A-3 and A-4 postal acknowledgements of defendants 3 and 4; Ex.A-5 loan application of the deceased father of the plaintiff and Ex.A-6 rental agreement and further appreciated the evidence of Exs.B-1 to B-6 receipts, Exs.B-7 to B-12 land revenue receipts and Ex.B-12 non- agricultural tax receipt and ultimately arrived at the conclusion that the preliminary decree relating to plaint ‘A’ and ‘B’ schedule properties dividing the same into four (4) equal shares to be granted. In the light of the convincing findings recorded by the trial Court this Court does not see any reason to disturb the said findings and the said findings are hereby confirmed. 16. POINT No.2:- In the result, the appeal shall stand dismissed. But, however, in view of the relationship between the parties let the parties bear their own costs. ___________________ P.S. NARAYANA, J June 11, 2010. Pn THE HON'BLE SRI JUSTICE P.S. NARAYANA A.S.No.1155 of 1996 June 11, 2010