HON’BLE SRI JUSTICE P. DURGA PRASAD A.S.No.1224 of 1994 Date:01.02.2011 Between: Chalamalasetti Sudhakar ….Appellant. And: Chalamalasetti Gangadevi and others. …..Respondents. HON’BLE SRI JUSTICE P. DURGA PRASAD A.S.No.1224 of 1994 JUDGMENT: This is an appeal arising out of the judgment and decree passed in O.S.No.145 of 1983 by the Subordinate Judge, Machilipatnam on 31.03.1993. The appellant herein is the plaintiff No.4 in the suit. The plaintiffs have filed the suit for partition of the plaint schedule properties and according to them, the first defendant late Chalamalasetti Gopalkrishna Murthy, 6th defendant, 7th defendant and 8th defendant are sons of late Chalamalasetti Ramabrahmam. Defendant Nos.2 to 5 are the sons of late Chalamalasetti Gopalakrishna Murty son of late Ramabrahmam. Late Chalamalasetti Ayyappa Rao who is the husband of the 9th defendant and the father of the defendants 10 to 13 and the defendants 14 and 15 are the sons of late Chalamalasetti Rama Sastrulu. Late Ramabrahmam and late Rama Sastrulu are the brothers and they are the sons of original ancestor late Chalamalasetti Nalla Subbayya of Chilakalapudi, Machilipatnam. The plaint schedule property had been purchased by the original ancestor Ch. Nalla Subbayya and the same was devolved upon his two sons Rama Brahmam and Rama Sastrulu, after his demise. As the plaint schedule property had continued to be joint to the legal representatives of late Ramabrahmam and Rama Satrulu each after demise, the five sons of late Rama Brahmam are each entitled to 1/10th share in the plaint schedule property and the plaintiff and his two brothers who are the sons of late Rama Sastrulu are each entitled to 1/6th share in the plaint schedule property. The plaint schedule property continued to be joint between the plaintiff and the defendants 1 to 15 even after the demise of late Ramabrahmam and Rama Sastrulu. Plaintiffs continued to be in joint possession of the said property. Defendants 14 and 15 purported to alienate a portion of the plaint schedule property to the 16th defendant, without reference to their separate possession and enjoyment of their share in the plaint schedule property. D-16 got issued a registered notice on 9.7.1983 to the plaintiff and others with false allegations. The plaint schedule property was never partitioned by meets and bounds to the respective shares. The attitude of the defendants 14 and 15 in transacting for sale of the portion of the plaint schedule property to the 16th defendant is no longer safe either to the plaintiff or for the other defendants to remain in joint possession of the plaint schedule property. Since, the 16th defendant has falsely asserted an agreement of sale from the defendants 14 and 15, D-16 is also added as party to the suit since he is necessary and proper party to the suit. The plaintiff got issued a registered notice on 27.9.1983 to the defendants 1 to 16, some of the defendants refused to receive the registered notice and some of them received the notice and kept quiet and hence the suit is filed for partition according to law. The first plaintiff died on 27.6.1990 and the legal representatives of the deceased first plaintiff are added as the plaintiffs 2 to 7. During the pendency of the suit, the defendants 17 and 18 are added as per the Orders in I.A.No.910 of 1984 dated 12.07.1984; defendants 19 to 22 are added as per the orders in I.A.No.720 of 1991 dated 7.1.1992 and defendant No.23 added as per the order in I.A.No.524 of 1992 dated 1.5.9.1992. The first defendant filed his written statement contending that the plaintiff late Rama Sastrulu and the first defendant and his brothers divided about 12 years back regarding the plaint schedule property. But, the 1st defendant and his brothers have not divided between themselves by meets and bounds. Even all the properties including houses, house sites and lands in Chilakalapudi and Pollepalli villages are not partitioned between the brothers of the first defendant and his brothers till now. In partition between late Rama Sastrulu and the first defendant and his brothers, late Rama Sastrulu got ½ share in the schedule property on the Southern side i.e., Cooperative building society plots side and the first defendant and his brothers got ½ share on the Northern side i.e., Gupta Garden side. Bandar Taluk Surveyor by name Nageswara Rao surveyed the said schedule property. 7th defendant Chalamalasetty Seetharamanja Rao was adopted by Sri Chilam-kurthi Subba Rao. The 7th defendant has no right and interest on the schedule property and he has taken the share in Chilamkurthi family. Therefore, the suit is liable to be dismissed. The defendants 2 to 5 filed a written statement contending that the defendants 2 to 4 are brothers and they are the sons and the 5th defendant is widow of late Chalamalasetti Gopala Krishna Murty who is the second son of late Ramabrahmam. Chalamalasetti Seetha Ramanuja Rao the 7th defendant is the 4th son of late Ramabrahmam. D-7 was taken in adoption by Chilamkurthi Subba Rao and his wife and he had succeeded to the assets and estate of his adoptive parents worth about Rs.5,00,000/-. The 7th defendant had voluntarily relinquished his rights in the assets and properties of his natural father, Chalamalasetti Ramabrahmam and he had been out of possession and enjoyment beyond the statutory period and he has no title nor possession in any of the properties of late Ramabrahmam, including the plaint schedule properties. In several documents executed by these defendants and the other sons of late Ramabrahmam, 7th defendant had only signed as an attestor there by confirming his right of relinquishment or renunciation in the properties of his natural father. Thus, the 7th defendant is not entitled to any share in the plaint schedule property. Having won over the plaintiff, the 7th defendant got himself impleaded as a party to their suit with a view to have wrongful gain for himself and to cause wrongful loss to these defendants and other sons of late Ramabrahmam. These defendants as the heirs and successors of late Gopalakrishna Murty, the second son of late Ramabrahmam are entitled to 1/4th share out of half share to which Chalamalasetti Ramabrahmam is entitled in the plaint schedule lands. These defendants pray that their 1/8th equitable share in the plaint schedule property may be allotted to them according to good and bad qualities and a preliminary decree may kindly be passed accordingly. They are always ready and willing to get the plaint schedule property partitioned by meets and bounds. 6th defendant filed separate written statement contending that late Nalla Subbayya executed a registered will in the year 1942 and by virtue of it, the plaint schedule property devolved upon his two sons Ramabrahmam and Rama Sastrulu. Ramabrahmam died in the year 1951 and 8 or 9 years after his death, the sons of Ramabrahmam and Rama Sastrulu divided the plaint schedule property and other properties at Moturu. So far as the plaint schedule properties are concerned, the Western half i.e., Ac.8.88 cents was allotted to late Ramabrahmam’s sons and the Eastern ½ portion was allotted to the share of the plaintiff’s father late Rama Sastrulu and the partition was effected though orally in the presence of mediators viz., Valisetti Nancharayya, Gudiseva Bhadrayya and Chalamalasetti Kanakayya etc. Ever since the half share of Ramabrahmam is being enjoyed separately by his four sons, the first defendant, father of the defendants 2,3 and 4 by name Gopalakrishna Murthy and the defendants 6 and 8 and each of the brothers subdivided Ac.8.88 cents., in to Ac.2.22 cents., each. The 7th defendant Ch. Sitaramanja Rao was given in adoption to Late Chilamkurthi Subba Rao and the 7th defendant was not given any share nor is he entitled to the same and the 7th defendant is not a necessary party to the suit. It is only the 7th defendant that instigated the plaintiff to file this suit finding that there is no registered partition deed when partition was effected as stated above. During 1974-75, the first defendant, and the defendants 2,3,4 and 6 and 8 have given separate declaration to the Land Reforms Tribunal, Machilipatnam under Land Ceiling Act., stating that each of them have got Ac.2.22 cents., of land in the plaint schedule property and similarly the wife of Ayyappa Rao i.e., the 9th defendant, the plaintiff and the 13th defendant have given separate declarations stating that each of them obtained Ac.2.96 cents., each and these declarations given under the statute are ample evidence of the previous partition that took place between Rama Sastrulu and the sons of Ramabrahmam. As a matter of fact, the 10th defendant constructed a house in his site of Ac.2.96 cents., during the year 1974 and the 11th defendant also raised a thatched hut in his site. D.10 sold Ac.0.12 cents., of site to Chitikena Subbamma during the year 1983 and she also constructed two houses. The 14th defendants sold away his share of Ac.2.96 cents of site to the 11th defendant by executing an agreement of sale in his favour. Similarly, the sons of Gopalakrishna Murthy divided Ac.2.22 cents., of site among themselves and also sold a portion of it. The 6th defendant sold Ac.0.05 cents ., of site in his share of Ac.2.22 cents to one G. Bhudevi and Sitamahalakshmi during the year 1979 and the purchasers constructed a thatched house in the site purchased by them. The first defendant executed a registered gift deed dated 20.03.1979 in favour of his daughter Thota Kamaksheamma conveying Ac.0.12 cents., of site in R.S.No.379/2 out of his share. The 8th defendant executed a registered gift deed on 3.3.1980 in favour of his nephew S. Subbaiah by virtue of which he gave Ac.C-22 cents., of site out of Ac.2.22 cents that fell to his share specifying the boundaries also. Those facts and circumstances will clearly establish that the plaint schedule land was divided by meets and bounds long back and was also sub-divided amongst the sons of late Ramabrahmam and late Rama Sastrulu and the suit filed on the basis of that the entire plaint schedule property is a joint family property is not at all maintainable. This defendant was not aware of the registered notice dated 9.7.1983 said to have been given by the 16th defendant to the plaintiff and there is absolutely no cause of action for the plaintiff to file this suit as against this defendant. The remedy of the plaintiff if any, is against his brothers i.e., heirs of late Ayyappa Rao and the 14th defendant and he can not file a suit as against the sons of Ramabrahmam. Some of the lands also in different villages were sold away by the respective sharers in pursuance of the original partition that took place about 8 or 9 years after the death of late Ch. Ramabrahmam. The Government proposed to acquire most of the plaint schedule land to allot the same as sites to the N.G.Os., in the year 1980 and at that juncture the 6th defendant and the other defendants filed a writ petition in the High Court of Andhra Pradesh and obtained stay orders and the writ petition was also allowed and so far as the parties to the writ petition are concerned, the High Court granted relief against acquisition and as the plaintiff and the 8th defendant were not parties in the writ petition, they were not given any relief. The plaintiff approached that his share alone will be acquired by the Government., and has come forward with the false suit, no others can claim a share in the plaint schedule property which might remain without acquisition. Hence, the suit is liable to be dismissed. 7th defendant field a separate written statement contending that the material averments in the plaint are substantially correct and the suit has to be decreed as prayed for. This defendant is entitled to 1/10th share along with other sharers. Defendants 9,11,12 and 13 filed a memo adopting the written statement filed by the 10th defendant in this suit. The father of the plaintiff and Rambrahmam divided their properties even during their life time, including the plaint schedule property. The sons of Ramabrahmam again partitioned. Defendants 2 to 5 raised a house in their share of the suit land and they are stated to be in possession of those items. The plaintiff knows about the same but he did not make them as parties. Late Rama Sastrulu divided the properties in the year 1968. Late Ramabrahmam accompanied by the plaintiff and his brother Panduranga Rao (D-14) on many occasions. On 2.8.1968 D.9, D.14 and the plaintiff executed a letter in favour of late Rama Sastrulu accepting the portion and agreeing not to question the same. This defendant constructed a building in their plot by taking permission. D.14 sold the part of the schedule property to 11th defendant. The plaintiff and 14th defendant filed declarations under Land Ceiling Act., showing their shares of their property. Thus, there is division of the property previously and there is no property to be divided. Defendants 9 to 13 filed a suit in O.S.No.1 of 1982 on the file of the Subordinate Judge court, Machilipatnam for partition and separate possession of the properties of late Rama Sastrulu and the plaintiff has been setting up his mother, Venkata Subbamma to evade the partition by delaying the proceedings. Defendants 14 and 15 are colluding with the plaintiff. The suit is not maintainable and therefore the same is liable to be dismissed. 14th defendant filed a written statement contending that 15th defendant Chalamalasetti Rama Mohana Rao is the undivided son of this defendant. Plaintiff is the 3rd and last son of late Rama Sastrulu. This defendant is entitled to 1/3rd share in the half share to which late Rama Sastrulu is entitled in the plaint schedule lands and thus, the 1/6th share in the plaint schedule lands should be allotted towards the share of this defendant. This defendant is always ready and willing to cooperate in getting the plaint schedule land partitioned and to get his 1/6th share separately and however the other defendants did not cooperate and hence, this defendant cannot be held liable for the costs of this suit. 16th defendant is not entitled to any site as a share in the plaint schedule site and the entire schedule lands are joint and undivided and are liable to be divided by the Court. 17th defendant filed the written statement alleging that this defendant adopts the written statement filed on behalf of the 10th defendant in so far as it is not contrary to the defendant’s case. This defendant purchased 555 sq. yards of site in L.S.No.379/2 under agreement of sale which fructified into a registered sale deed dated 30.12.1983 for Rs.14,0000/- and she paid the entire sale consideration to the vendors and this defendant also raised a house thereon and the said transaction is binding on the plaintiff. The site purchased by this defendant has to be deleted from the partition. Though she was added as a party to the suit, the plaint was not amended properly and hence the suit is liable to be dismissed against her. 23rd defendant filed her written statement contending that she is the only daughter of late Chalamalasetti Rama Sastrulu and she is also one of the sharers in the joint family properties along with her three brothers viz., Ayyappa Rao, Panduranga Rao and late Chalamalasetti Nageswara Rao and her mother Venkata Subbamma. The plaintiffs purposefully avoided to implead her as a party to the suit knowing fully well that she is entitled to a share in the plaint schedule property along with them. The defendant also contended that the plaint schedule property is in joint possession of this defendant along with other sharers. This defendant did not receive any notice of the suit though she is entitled to a share in the plaint schedule properties. The Subordinate Court, Machilipatnam granted decree for partition of the other properties in O.S.No.1 of 1982 and this defendant was allotted 1/5th share in the said properties in the said suit. The plaintiffs with a view to cause wrongful loss to the defendants and to have a wrongful gain to himself filed the suit without impleading her in this suit. She is entitled to share along with her brothers in the share of late Rama Sastrulu. 4th plaintiff filed a rejoinder contending that the 23rd defendant is not one of the sharers in the plaint schedule properties and that she is not entitled to 1/5th share and for separate possession of the same as sought for in her written statement. 23rd defendant had never any title and he did not succeed to any share in the plaint schedule property and late Ch. Rama Sastrulu, father of the first plaintiff did not die possessed of any title, share or possession in the plaint schedule properties and consequently 23rd defendant is not entitled to seek for any share or for separate possession in the plaint schedule properties. 23rd defendant is conscious although these 9 years that she has no right to any share in the plaint schedule properties but only at the instance of the litigious 10th defendant, the 23rd defendant had got herself impleaded in the suit and filed the written statement with a view to share the property along with the 10th defendants. D-10 had already made registered alienations sufficient to cover the 1/6th share to which his father Ayyappa Rao was entitled. D-23 had been given Ac.2.80 cents of wet land in Vemulavada village with absolute right and she was presented with 35 sovereigns of gold and Rs.20,000/- cash at the time of her marriage. Not withstanding the same, Chalamalasetti Rama Sastrulu father of the 23rd defendant, had allotted his half share of the plaint schedule property exclusively in favour of his three sons. Late Rama Sastrulu did not include or shown any of the plaint schedule lands in his land ceiling declarations filed in C.C.No.666/BDR/75. The three sons of late Rama Sastrulu filed separate declarations showing their respective 1/3rd share out of the half share of plaint schedule properties in their respective holdings. 23rd defendant is aware of all these things but she never objected it. 23rd defendant had renounced Hinduisum and had converted into Christianity 10 years ago and she was also assigned Christian name, she was not attending the Hindu temples or religious ceremonies of Hindus since then and she had no faith in Hindu religion. The proceedings in the suit in O.S.No.1 of 1982 on the file of Subordinate Court, Machilipatnam has no relevance and no consequence the present proceedings and therefore, the 23rd defendant cannot claim any share in the property. On the above pleadings, the lower court has framed the following issues: 1. Whether there was partition between the plaintiff’s father late Rama Sastrulu and the 1st defendant and his brothers? 2. Whether the 7th defendant went in adoption to Chilamkurthi Subba Rao and his wife and has voluntarily relinquished his rights on the suit property? 3. Whether the 17th defendant is a bonafide purchaser for value under the sale deed dated 30.12.1983 for 555 sq. yards of site in R.S.No.379/2 from the 6th defendant and his son? 4. Whether the plaint schedule property was divided long back by meets and bounds as contended by the 6th defendant? 5. Whether the plaintiff is entitled for the partition as prayed for? 6. To what relief? Additional issue was framed on 21.10.1992 as under: 1. Whether the 23rd defendant is entitled to the share of 1/5th in the plaint schedule properties? The suit was tried along with L.A.O.P Nos.150 of 1986, 151 of 1986 and 152 of 1986 and common evidence was recorded in the suit. The 4th plaintiff examined himself as P.W.1 and got marked Exs.A-1 to A-22 on behalf of the plaintiffs. Defendant Nos.1,3,10,7, 14,6 and 23 were examined as D.Ws.1 to 7 respectively and got marked Exs.B-1 to B-32. Taking into consideration of the oral and documentary evidence, the lower court held the issues 1 and 4 in favour of the plaintiff and additional issue No.1 in favour of 23rd defendant and issue No.2 in favour of D-7 and against D-1 to D-6 and D-8 and issue No.5 in favour of D-17 and thereby held the plaintiffs are entitled for partition of the suit schedule property and entitled to 6/20th share in the half of the plaint schedule properties and thereby passed preliminary decree by ordering partition of the plaint schedule property into two equal shares in the first instance and the first half share be divided in the second instance into 20 equal shares and six shares out of them shall be allotted to the plaintiffs 2 to 7, six shares out of the remaining shall be allotted to the defendant Nos.10 to 13, six shares out of the remaining shall be allotted to the defendant No.14, remaining 1/20th share shall be allotted to 23rd defendant and the remaining 1/20th share shall be allotted to the wife of late Rama Sastrulu viz., Venkata Subbamma. The second half of the plaint schedule land shall be divided into five equal shares and allot to D- 1, D-6, D-7 and D-8 1/5th share each and the remaining 1/5th share shall be allotted to D-2 to D-5, and D-19 to D-22. Aggrieved by the said judgment and decree, the appellant who is the plaintiff No.4 in the suit has filed the present appeal. For the sake of convenience the ranks of the parties as shown in the suit is being referred to in the appeal. Now the point that arises for consideration is whether late Ramasastrulu was not having a share in the suit schedule property and if so whether plaintiff No.3 and 23rd defendant are entitled to the shares as ordered by the lower court? The contention of the learned counsel for the appellant is that the suit schedule property was partitioned between late Rama Sastrulu and his brother late Ramabrahmam and late Rama Sastrulu partitioned the suit schedule property in favour of his three sons i.e., Chalamalasetti Ayyappa Rao who is D-10’s father, D-14 and the first plaintiff in the partition list dated 28.6.1968 and since then they have got absolute possession and title over the half share of their father in the plaint schedule property. As the said late Rama Sastrulu was not having any share in the schedule property as on the date of his death and he has also not shown the suit schedule property in the declaration filed by him under the Land Ceiling Act and his three sons have shown their share in the suit schedule property in the land ceiling declaration. As such, the plaintiff No.3 who is the wife of late Ramasastrulu and the 23rd defendant who is the daughter of late Rama Sastrulu are not entitled for any share as ordered by the lower court. The learned counsel further pleaded that the lower court has come to a wrong conclusion with regard to the land ceiling declaration holding that they were meant only for the purpose of declaration of land under Land Ceiling Act and they cannot be taken into consideration for the purpose of partition of the schedule properties. The learned counsel also pleaded that even though the legal heirs of late Rama Sastrulu has filed a suit for partition O.S.No.1 of 1982 they have not shown the suit schedule property in the suit and sought for partition. As such, it has to be presumed that late Rama Sastrulu is not having any share in the suit schedule property as on the date of his death. The learned counsel for the 23rd defendant, on the other hand, has contended that the lower court by giving concrete reasons came to the conclusion that the suit schedule properties were not partitioned earlier and the suit schedule properties have to be divided into two half shares and one half share comes to late Rama Sastrulu and another half share goes to late Ramabrahmam