IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD FRIDAY, THE TWENTY EIGHTH DAY OF JANUARY, TWO THOUSAND AND ELEVEN PRESENT THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT No. 63 OF 2001 BETWEEN: Pindi Nageswara Rao and others …APPELLANTS AND Gudla Kameswara Rao and others …RESPONDENTS APPEAL SUIT No. 1375 OF 2001 BETWEEN: Ch. Appala Jagannadha Rao …APPELLANT AND Gudla Kameswara Rao and others …RESPONDENTS CIVIL MISCELLANEOUS APPEAL No. 623 OF 2005 BETWEEN: Chantati Krishnaveni. …APPELLANT AND Gudla Kameswara Rao and others. …RESPONDENTS The Court made the following: THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO APPEAL SUIT Nos. 63 OF 2001, 1373 OF 2001 AND CIVIL MISCELLANEOUS APPEAL No. 623 OF 2005 COMMON JUDGMENT: Both the appeals arise out of the judgment in O.S.No. 92 of 1991 on the file of the Court of Principal Senior Civil Judge, Srikakulam. The suit was filed for partition of the suit schedule properties into two shares and for allotment of the same to the plaintiff and the legal representatives of the deceased Rama Rao. 2. The allegation in plaint goes to show that Gudla Appa Rao, who is the father of the plaintiff, and Pindi Ramarao, who is the father of defendants 1, 6 to 8, purchased the property jointly under a registered sale deed, dated 28-04-1966 and each of them are having equal rights. The father of the plaintiff died on 15-11-1990; whereas the Pindi Rama Rao died in the year, 1985. When the plaintiff has demanded for partition of the properties, the defendants did not co- operate and hence the suit was filed for partition. 3. The second defendant has filed written statement contending that during the life time of Appa Rao, he sold the property under Ex.B-1 agreement of sale on 15-12-1968 and subsequently, Rama Rao has executed an un-registered gift deed on 25-02-1972 in favour of the second defendant in respect of 26 cents and on 24-08-1983 the first defendant agreed to sell his site to his fourth daughter. Therefore, the defendants have become owners of the property and the plaintiff is not entitled for the partition. 4. On the basis of the above pleadings, the following issues were settled for trial: 1) Whether the plaint schedule land was jointly purchased by the plaintiff’s father and first defendant’s father late Pindi Rama Rao? 2) Whether the Gudla Apparao the father of the plaintiff sold his half share in favour of Pindi Ramarao the father of the first defendant on 15-12-1968 under the agreement of sale? And if so whether the agreement of sale is binding on the plaintiff? 3) Whether the defendants 1 and 2 perfected their right, title and possession over the half share of Gudla Apparao by adverse possession? 4) Whether the plaintiff is entitled to partition of the plaint schedule property into two equal shares and for allotment of one such share in his favour? 5) Whether the plaintiff has to pay advalorum court-fee under Section 34(1) of A.P.C.F. and S.V. Act? 6) Whether the plaintiff is entitled to mesne profits to the extent of his half share? 7) To what relief? 5. On behalf of the plaintiff, PWs. 1 to 4 were examined and got marked Exs.A-1 to A-7. On behalf of the defendant, DWs-1 to 4 were examined and got marked Exs.B-1 to B-8. 6. After considering the evidence on record, the learned Principal Senior Civil Judge decreed the suit of the plaintiff and aggrieved by the said judgment the present appeal is filed. 7. Now the points that arise for consideration are: 1) Whether the claim of the defendants that the father of the plaintiff Appa Rao sold his half share is true and whether the defendants have derived title to the property through Ramarao? 2) Whether the plaintiff is entitled for the partition of the property? 3) Whether the order granted for maintenance of status- quo is valid and sustainable? 8. POINTS: The facts in this case not in dispute are that the property was purchased jointly by the father of the plaintiff Appa Rao, and Pindi Rama Rao, who is the father of the defendants 1, 6 to 8 under the original of the sale deed Ex.A-1 in the year, 1966. The joint enjoyment of the property is also not disputed. According to the case of the defendants that on 15-12-1968 under Ex.B-1 agreement of sale, the late Appa Rao is said to have sold his half share for a consideration of Rs.2,000/- and a sum of Rs.1,600/- was paid and subsequently, the balance amount was also paid and therefore, the father of the plaintiff Appa Rao lost title and interest on the property and as such, the suit for partition is not maintainable. 9. Evidently, the defendants have set up interest in the property under an agreement of sale. The agreement of sale relied on by the defendants is marked as Ex.B-1. Though the exitence of the agreement of sale was pleaded in the written statement filed on 26-02- 1993, it was filed on 17-02-1997 for the first time. No explanation was given for non-filing of the agreement into Court earlier. Though the evidence of DW-1 discloses that the balance of consideration of Rs.400/- was paid subsequently, it was neither pleaded nor alleged in the reply notice prior to filing of the suit. Therefore, the payment of the entire consideration under the agreement of sale is not proved. Further more, in order to entitle for the benefit of title under the agreement of sale, it should be a completed transaction and it does not create any right or interest over the property. Apart from it, when a person wants to defeat the rights of the other person under the agreement of sale and to invoke the Section 53 of the Transfer of Property Act, it shall be alleged and proved that the party is always ready and willing to perform the part of the contract and that attempts were made during the life time of Ramarao and subsequently, to get the sale deed registered. 10. Evidently, Ramarao died in the year, 1985 and Appa Rao died in the year, 1990, and therefore, the executant of the document was alive and the person, who has purchased property died earlier. The defendants being the legal representatives of the purchaser under Ex.B-1 have never given any notice to the Apparao claiming rights under the agreement of sale executed by him nor filed any suit for specific performance of the agreement of sale. Therefore, the failure on the part of the defendants to seek a regular sale deed from Ramarao during his lifetime and also failure to institute any suit for specific performance clearly goes to show their passiveness and in such circumstances, a person, who has been passive cannot claim any equitable relief or being the benefit under Section 53 of the Transfer of Property Act. Added to that, subsequent transaction under Exs.B-2 to B-4 relied on by the respondents does not disclose the existence of the Ex.B-1 sale agreement. So also, the gift deeds Exs.B- 6 and B-7 also do not disclose the above facts. No document is filed to prove i.e., Ex.B-1 was produced before any revenue authorities or competent authorities and mutation was effected in the name of Ramarao. Therefore, all the above circumstances clearly goes to show that the existence of the document Ex.B-1 relied on by the defendants is not valid and the learned Principal Senior Civil Judge has given sufficient reasons to discard the above transactions. Merely because Exs.B-2 and B-4 contained the attestation of Apparao, it does not mean that his property was conveyed by Ramarao since Ramarao has got half share in the schedule property. Therefore, when once the equal rights in the schedule property for Apparao and Ramarao are admitted and when the plea of the defendants about the sale by Apparao is not believable and is not valid to create any rights in the schedule property, the contention of the defendants is not tenable and rightly negatived by the lower Court. So also, any constructions to be made by the defendants in the schedule property will be detriment to the parties and as such, the status-quo passed by the learned judge does not call for any interference. 11. Therefore, in view of the above discussion, I found no reason to interfere with the judgment passed by the learned Principal Senior Civil Judge, Srikakulam. 12. In the result, both the Appeal Suits and Civil Miscellaneous Application are dismissed. Each party shall bear their own costs. Date: 28-01-2011. ________________________ N.R.L.NAGESWARA RAO,J INL THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO APPEAL SUIT Nos. 63 OF 2001, 1373 OF 2001 AND CIVIL MISCELLANEOUS APPEAL No. 623 OF 2005 January 28, 2011 INL