* H O N ' B L E S R I J U S T I +A . S . No.3141 of 1999 % 2 9 - 0 4 - 2 0 1 0 # V a k i t i S r i n i v a s R e d d y . . A p p e V s . $1. Vakiti Balwantha Reddy and 28 others .. Respondents < G I S T : > H E A D N O T E : ! C o u n s e l f o r a p p e l l a n ^ C o u n s e l f o r r e s p o n d e 2 9 : S r i G . D h a n a m j a y ? C A S E S R E F E R R E D : - 1. AIR 1964 SC 993 2. AIR 1960 SC 941 3. AIR 1987 SC 1145 4. AIR 1979 SC 1436 5. AIR 1993 SC 1982 6. AIR 1994 SC 2145 7. (1859) 7 MIA 283 HON’BLE SRI JUSTICE P.S. NARAYANA A.S. No.3141 of 1999 Date: April 29, 2010 Between: Vakiti Srinivas Reddy … Appellant/ Plaintiff And 1. Vakiti Balwantha Reddy and 28 others … Respondents * * * HON’BLE SRI JUSTICE P.S. NARAYANA A.S. No.3141 of 1999 JUDGMENT: Introductory facts: The unsuccessful plaintiff being aggrieved of the decree and judgment made in O.S.No.7 of 1991 on the file of the Senior Civil Judge, Bhongir, dated 30.8.1999, had preferred the present appeal. 2. Respondent No.4 in the appeal died and R-29 was brought on record as the legal representative. R-1 to R-3, R-7 to R-10, R-13 to R- 18 and R-25 to R-27 were given up as not necessary parties on the ground that they remained ex parte before the trial court. 3. Appellant herein, the plaintiff, filed the suit for partition and separate possession of the ancestral and joint family properties described in plaint ‘A’ and ‘B’ schedules. The trial court, in the light of the respective pleadings of the parties, having settled the issues, recorded the evidence of P.W.1, D.W.1 to D.W.4, marked Exs.A-1 to A- 34, Exs.B-1 to B-6 and ultimately came to the conclusion that the appellant-plaintiff is not entitled to the relief of partition and separate possession as prayed for and dismissed the suit with costs. Aggrieved by the same, the present appeal had been preferred. Contentions of Sri G. Madhusudan Reddy: 4. Sri G. Madhusudan Reddy, learned counsel representing the appellant had taken this court through the grounds specified in the memorandum of grounds of appeal and further pointed out to the respective pleadings of the parties and the clear stand taken by the parties and would maintain that even in the light of the evidence available on record the first defendant is not a stranger to the family and even otherwise since the adoption in a way was admitted, an admitted fact need not be proved. The learned counsel also had drawn the attention of this Court to Section 58 of the Indian Evidence Act. While further elaborating his submissions the learned counsel, in all fairness, pointed out that it is true that P.W.1 was not cross- examined and P.W.1 was unsuccessful even in a civil revision petition filed in this regard. But however, inasmuch as this order also can be challenged in the present appeal, it would be just and proper to give a further opportunity to appellant-plaintiff. While further elaborating his submissions the learned counsel would maintain that the trial court failed to note that the plaint schedule properties are ancestral properties and the appellant-plaintiff is one of the coparceners. The counsel also would maintain that in the light of the same the alienations were invalid, at any rate, such alienations are not binding on non-alienating coparceners. The learned counsel also would further maintain that if the shares are to be worked out, appellant- plaintiff is entitled to 1/16th share in the plaint schedule properties. The learned counsel also specifically pointed out that the trial court ignored certain admissions and, in fact, there are admissions to the effect that the father of the plaintiff also sold the properties along with defendants 4 to 6 to defendants 19 to 28 and a part of sale consideration also had been given and when that being so, to record contrary findings cannot be sustained. The learned counsel also further specifically pointed out to the other grounds raised in the memorandum of grounds of appeal and would maintain that in the facts and circumstances of the case the appeal to be allowed or at least the matter to be remanded to give further opportunity to the appellant-plaintiff to establish his case further by adducing further evidence. Contentions of Sri G. Dhanamjay: 5. Sri G. Dhanamjay, learned counsel representing the contesting respondents would maintain that P.W.1 was not cross-examined, however, despite the same the trial court considered the evidence of P.W.1 instead of eschewing the evidence of P.W.1 and this approach adopted by the trial court may not be the just approach. The learned counsel also would maintain that even if the evidence available on record to be taken into consideration, this is not a fit case to be interfered with. The learned counsel specifically pointed out that it may be that certain of the defendants were set ex parte, but however without impleading them they were given up and, thus, in a way the decree of dismissal of the suit for partition had attained finality so far as it relates to those defendants. The learned counsel while further elaborating his submissions had pointed out to the respective pleadings of the parties and would maintain that the plea of adoption of the first defendant was not specifically pleaded by the plaintiff in the plaint. The very pleading appears to be as though that these parties are having right by birth in the family having taken birth in the family as natural sons. Further, the learned counsel also pointed out to the nature of pleadings and the nature of evidence which had been let in and since the evidence is contrary to the pleas raised, such evidence need not be considered. While further elaborating his submissions the learned counsel would maintain that it may be that P.W.1 was not cross-examined and, hence, the evidence may have to be eschewed. But however, the fact remains that P.W.1 subsequently had taken active part and his counsel was cross-examined all the witnesses on the defendants’ side. The learned counsel also pointed out to certain portions of the evidence of D.W.1 in chief as well as cross- examination. While concluding his submissions the learned counsel would maintain that on appreciation of the over all facts and circumstances this appears to be a game on the part of P.W.1-plaintiff to have some unlawful gain by resorting to this type of litigation and since this litigation lacks bona fides, the appeal to be dismissed and no further opportunity also need be given as requested by the counsel representing appellant-plaintiff. 6. Heard the counsel, perused the oral and documentary evidence available on record, the findings recorded by the trial court as well. 7. Before formulating the points for determination and further proceeding with the discussion on such points for determination which may arise for consideration in this appeal, it may be appropriate to have a glance at the respective pleadings of the parties, the issues settled, the evidence available on record, the findings recorded by the trial court in brief. Respective pleadings of the parties: 8. The parties hereinafter for the purpose of convenience would be referred to as plaintiff and defendants as shown in O.S.No.7 of 1991 on the file of the Senior Civil Judge, Bhongir. Averments made in the plaint: 9. It was pleaded in the plaint that defendant No.1 V. Balwantha Reddy had two sons i.e., plaintiff and defendant No.2 and also two daughters namely Sunitha and Baddam Surekha, defendant No.3. Defendants 1, 4, 5 and 6 are the brothers and sons of late Narsi Reddy. Plaintiff’s grandfather Vakiti Narsi Reddy owned agricultural lands bearing survey Nos.29, 30, 33, 34, 35, 52, 58, 59, 60, 61, 62, 64, 65, 66, 67 and 68 situated at Nagireddipalli village of Bhongir Mandal and the lands bearing survey Nos.45, 47, 48, 127, 128, 267/1/B, 270, 271/B and 129 situated at Tekulasomaram village of Valigonda Mandal, in total, admeasuring Ac.234-33 guntas and also two houses bearing Gram Panchayat No.3-25 situated at Panumativanigudem, hamlet of Tekulasomaram and another at Rachavani Bhavi, Nagireddipalli village of Bongir Mandal. After the death of late Narsi Reddy, another house bearing Gram Panchayat No.1-73 situated at Nagireddypalli village of Bhongir Mandal was acquired through the joint efforts of defendants 1, 4, 5 and 6 and nucleus of ancestral properties. There are four electric motor pump sets installed on four agricultural wells in the lands at Nagireddipalli and the plaintiff and defendants 1 to 7 had got 1/4th share in an electric motor on Peerla Bhavi at Tekulasomaram. Defendants 1, 4, 5 and 6 had been in joint possession and enjoyment of the properties described in plaint I to III schedules after the death of their father in the year 1966. 10. Further it is averred that the plaintiff was minor till about a year and half and on attaining majority, he found that the defendants 1, 4, 5 and 6 negotiating with defendants 7 to 28 for alienation of some of the ancestral lands and induct them into possession of various portions of the plaint schedule properties. Defendants 1 and 4 to 6 had no right or authority to alienate the plaint schedule properties. The plaintiff got issued a legal notice on 10.9.1990 to defendants 1 to 28 seeking partition and separate possession of the plaint schedule properties to the extent of his 1/16th share. Defendants 4 to 6 refused to receive the notices. Defendants 17, 22, 23 and 24 were found out of station at the addresses mentioned in the legal notices. As regards defendants 16 and 18 neither the postal acknowledgments were returned nor the postal covers were sent back to the advocate Sri Ch. Venkatesham, through whom the legal notices were issued. Hence, the suit. 11. Defendants 1 to 3, 7 to 10, 13 to 18 and 25 to 27 had not chosen to contest the matter. They were set ex parte. Averments made in the written statement of defendants 4 to 6: 12. Defendants 4 to 6 filed common written statement stating that defendant No.1 is popularly known as Vakiti Balwantha Reddy since he was brought up by father of defendants 4 to 6, but actually he is Manne Balwantha Reddy. It is not correct to say that defendant No.1 Balwantha Reddy was born to the father of defendants 4 to 6, as such he is not the full blood brother of defendants 4 to 6 as alleged in the plaint. It is not true that plaintiff is the grandson of Vakiti Narsi Reddy, the father of defendants 4 to 6. Defendant No.1, who is the father of plaintiff, was neither born to the family of defendants 4 to 6 nor was he adopted by the father of defendants 4 to 6. Since because he was brought up by the father of defendants 4 to 6 in his house and out of love and affection he was permitted to use the family name as “Vakiti”, but actually his family name is “Manne”. By virtue of the use of family name as “Vakiti” by defendant No.1, he cannot claim any right or title in the property left behind by Vakiti Narsi Reddy, the father of defendants 4 to 6. 13. Further it is averred that the lands mentioned in plaint schedule 1, 2 and 3 are the properties left behind by the father of defendants 4 to 6 except the house bearing G.P.No.1-73 situated at Nagireddipalli village, Bhongir Mandal, which was self acquired property of defendant No.4. Neither the plaintiff nor the defendants 1 to 3 had got any share, right or claim over the properties in plaint schedule 1 to 3. 14. It is also averred that though defendant No.1 was not having any right or claim in the plaint schedule properties, but after the death of father of defendants 4 to 6, defendant No.1 was given Ac.17-31 guntas of land situated at Tekulasomaram village for his livelihood. At the time of selling the lands at Nagireddidpalli village to the extent of Ac.90-16 guntas to defendants 19 to 28, defendant No.1 was also included in the array of vendors in the sale executed on 30.4.1990 and at the request of purchasers for their satisfaction and at the request of defendant No.1, out of the sale consideration of Rs.1,81,500/- an amount of Rs.80,510/- in cash was paid to defendant No.1 in addition to the lands mentioned above in all settlement of his share claimed as a brought up child in the properties left behind by the father of defendants 4 to 6 and accordingly defendant No.1 acknowledged the receipt of the amount of Rs.80,510/- by passing a receipt in favour of the purchaser L. Rambadraiah and others who were the purchasers and cited as defendants 19 to 28. 15. Plaintiff’s father i.e., defendant No.1 had also sold Ac.1-30 guntas of wet land to defendants 11 and 12 under a registered sale deed on 02.5.1990 and the said sale deed was also attested by the plaintiff. Similarly, defendant No.1 had also sold survey No.271/B to the extent of Ac.2-01 guntas of Tekulasomaram village to Smt. Subburu Neelamma under a registered sale deed on 29.6.1978, but she was not made a party to the suit. Defendant No.1 also sold the land in survey No.271/B to the extent of Ac.2-22 guntas of Tekulasomaram village to Palle Sreeramulu, defendant No.9, under a registered sale deed, dated 29.6.1978. In addition to the sale transaction referred above, defendants 1 and 4 to 6 jointly executed sale deeds in favour of defendants 13 to 15 by executing a registered sale deed on 02.5.1990 for the sale of extent of Ac.0-15 guntas in survey No.35 and the extent of Ac.037 gunas in survey No.59 of Nagireddipalli village and it was attested by the plaintiff. When defendant No.1 himself had no right or claim over the properties held and enjoyed by defendants 4 to 6, question of claiming share by his son, the plaintiff, does not arise. 16. It is further averred that there is no cause of action. The suit is barred by limitation. Since the plaintiff is out of possession so far, the properties actually held and enjoyed by the defendants 4 to 6, the plaintiff should have paid court fee on 3/4th market value of his so called share claimed in the property. If the Court comes to the conclusion that defendant No.1 had got any share in the properties left behind by father of defendants 4 to 6, his share may be declared to have been adjusted already. Hence, the suit is liable for dismissal with compensatory costs. Written statement of defendants 11 and 12: 17. Defendants 11 and 12 filed common written statement pleading that they are not aware of acquisition of the suit schedule properties either by plaintiff or his father or late Vakiti Narsi Reddy. Further it is denied that the plaintiff attained majority about 1 ½ years ago and found defendants 1, 4 to 6 negotiating with defendants 7 to 28 for alienation of some of the ancestral lands and induct them into possession of various portions of the plaint schedule properties. It was further denied that defendants 1, 4 to 6 have no right to alienate plaint schedule properties. Further it was pleaded that in fact defendant No.1 being the owner of the land bearing survey No.45, Ac.0-08 guntas; survey No.47, Ac.0-05 guntas; survey No.48, Ac.0-09 guntas; survey No.127, Ac.0-18 guntas; survey No.128, Ac.0-19 guntas all wet; survey No.129 Ac.0-11 guntas dry, total admeasuring Ac.1-30 guntas situated at Tekulasomaram village which was part and parcel of the plaint schedule I had sold the same to defendants 11 and 12 on 02.5.1990 through a registered sale deed vide document No.947 of 1990 for a valid consideration and the said sale deed was attested by the plaintiff, as such, the plaintiff is estopped from questioning the right of the defendant No.1 and as well as to claim the share in the same. The suit was filed in collusion with defendants 1 to 3 knowing fully well that they cannot claim against the properties of defendants 11 and 12. The suit was bad for mis-joinder of defendants 11 and 12 and it is not maintainable for non-joinder of daughter of late Narsi Reddy and also other persons in possession of some of the suit land. The suit filed by the plaintiff is false and fictitious as such the plaintiff had to pay exemplary costs of Rs.5,000/-. Written statement of defendants 19, 20 and 28: 18. A common written statement was filed by defendants 19, 20 and 28 which was adopted by defendants 21 to 24 by virtue of a memo. It was pleaded that defendants 1 and 4 to 6 have jointly sold away the lands bearing survey No.29 (Ac.13-27 guntas), survey No.30 (Ac.18- 11 guntas), survey No.33 (Ac.9-05 guntas), survey No.34 (Ac.8-16 guntas), survey No.35 (Ac.17-31 guntas), survey No.59 (Ac.7-28 guntas), survey No.60 (Ac.3-30 guntas), survey No.67 (Ac.0-30 guntas) and survey No.68 (Ac.6-22 guntas) to defendants 19 to 28 through a registered sale deed No.949/90, dated 3.4.1990 by joining with one Smt. T. Anasuya who happened to be the owner of Ac.4-18 guntas out of survey No.58. In total Ac.90-16 guntas, out of plaint schedule-I lands were transferred to defendants 19 to 28 for a valid consideration by virtue of said registered sale deed. They are the owners and possessors of Ac.96-16 guntas out of plaint schedule lands which were sold by the defendants 1 and 4 to 6 for the purpose of their family needs and to pay their family debts in the public financial institutions like banks and co-operative societies etc. The plaintiff was having full knowledge of entire sale transactions covered under the aforesaid registered sale deeds in favour of defendants 19 to 28. When they were already in possession and enjoyment of Ac.96-16 guntas land, the question of defendants 1 and 4 to 6 trying to induct them into possession of the same at the time of filing the suit will not arise. 19. It is further stated that defendants 19 to 28 are bona fide purchasers of Ac.96-16 guntas land for valid consideration and they were in possession and enjoyment of the same in pursuance of the sale. In fact, T. Anasuya is also a proper and necessary party to the suit, as she sold away Ac.4-18 guntas out of suit survey No.58 of Nagireddipalli village to them having right, title and interest. Plaintiff purposefully did not implead other class-I heirs of late Vakiti Narsi Reddy for the reasons best known to him. As such the suit is not maintainable for non-joinder of necessary parties. Plaintiff is not entitled to seek relief against defendants 19 to 28 unless he seeks declaration of title as well as cancellation of registered sale deed in their favour. Hence, the suit is liable for dismissal. Issues settled before the trial court: 20. The under noted issues had been settled before the trial court: (1) Whether the plaintiff is entitled for partition and separate possession of his 1/16th share in the plaint schedule properties as prayed for? (2) Whether defendant No.1 is a natural son of deceased Vakiti Narsi Reddy as contended by the plaintiff? (3) Whether the genealogical tree on which the plaintiff is depending is true and correct? (4) Whether the suit is bad for non-joinder of necessary parties? (5) Whether the suit is bad for mis-joinder of causes of action? (6) Whether the plaintiff and his father have no manner of right whatsoever in the plaint schedule properties as pleaded by defendants 4 to 6? (7) Whether defendants 19 to 28 are bona fide purchasers for value as pleaded by them? If so whether they are entitled for equities as pleaded in their written statement? (8) To what relief? Evidence recorded by the trial court: 21. The under noted oral and documentary evidence had been recorded by the trial court Appendix of evidence Witnesses examined For plaintiff: P.W.1: Vakiti Srinivas Reddy For defendants: D.W.1: Vakiti Malla Reddy D.W.2: Linga Rama Bhadraiah D.W.3: Mohd. Shareef D.W.4: A. Raji Reddy Documents marked For plaintiff: Ex.A-1: Certified copy of pahani for the year 1988-89 of Nagireddypalli village. Ex.A-2: Certified copy of faisal patti for the year 1965-66 of Nagireddypalli village Ex.A-3: Certified copy of chowfasla for the year 1988-89 of Nagireddypalli village. Ex.A-4: Certified copy of pahani for the year 1988-89 of Tekulasomaram village. Ex.A-5: Certified copy of chowfasla for the year 1988-89 of Tekulasomaram village. Ex.A-6: Office copy of legal notice dt. 10.9.90 issued to D-1 to D-28. Ex.A-7: Postal acknowledgment of defendant No.1 Ex.A-8: Postal acknowledgment of defendant No.2 Ex.A-9: Postal acknowledgment of defendant No.3 Ex.A-10: Returned postal cover of defendant No.4 Ex.A-11: Returned postal cover of defendant No.5 Ex.A-12: Returned postal cover of defendant No.6 Ex.A-13: Postal acknowledgment of defendant No.7 Ex.A-14: Postal acknowledgment of defendant No.8 Ex.A-15: Postal acknowledgment of defendant No.9 Ex.A-16: Postal acknowledgment of defendant No.10 Ex.A-17: Postal acknowledgment of defendant No.11 Ex.A-18: Postal acknowledgment of defendant No.12 Ex.A-19: Postal acknowledgment of defendant No.13 Ex.A-20: Postal acknowledgment of defendant No.14 Ex.A-21: Postal acknowledgment of defendant No.15 Ex.A-22: Postal receipt Ex.A-23: Returned postal cover of defendant No.16 Ex.A-24: Postal receipt Ex.A-25: Postal acknowledgment of defendant No.21 Ex.A-26: Postal acknowledgment of defendant No.20 Ex.A-27: Postal acknowledgment of defendant No.19 Ex.A-28: Returned postal cover of defendant No.22 Ex.A-29: Returned postal cover of defendant No.23 Ex.A-30: Returned postal cover of defendant No.24 Ex.A-31: Postal acknowledgment of defendant No.25 Ex.A-32: Postal acknowledgment of defendant No.26 Ex.A-33: Postal acknowledgment of defendant No.27 Ex.A-34: Postal acknowledgment of defendant No.28 For defendants: Ex.B-1: Original registered sale deed dated 30.4.90 executed by D1 and D-4 to D-6 and Tummala Anasurya in favour of L. Rama Bhadraiah and 9 others (defendants 19 to 28). Ex.B-2: Original registered sale deed dt.27.3.89 executed by D-1 and 4 to 6 in favour of D-16 to 18. Ex.B-3: Original registered sale deed dt.12.10.89 executed by D- 16 and D-17 in favour of defendant No.25. Ex.B-4: Indenture of mortgage deed without possession dt.4.7.1979 executed by Vakiti Ram Reddy (defendant No.4) in favour of State Bank of Hyderabad, Bhongir Branch, for the lands situated at Nagireddipally village of Bhongir Mandal. Ex.B-5: Letter of State Bank of Hyderabad, Branch Bhongir issued to defendant No.4 dt.24.5.90. Ex.B-6: Land revenue receipt for the year 1991 issued to D-19 and partners, issued by village Administrative Officer, Nagireddypally village for the land revenue towards survey Nos.29, 30, 33 to 35, 58 to 60, 67 and 68. Findings recorded by the trial court in brief: 22. The trial court while appreciating the issues had taken into consideration the oral and documentary evidence available on record and recorded in support of the claim of the plaintiff. The plaintiff examined himself as P.W.1 and marked Exs.A-1 to A-34 and this witness was examined in chief on 21.01.1994 and his chief- examination was completed on 16.02.1994 and cross-examination of P.W.1 was deferred and thereafter he did not turn up for cross- examination. Further it is recorded that as seen from the record since P.W.1 was not tendered for cross-examination, the Court passed an order on the docket on 27.9.1994 as “P.W.1 not present till the matter is passed over even after second half. Even after imposing costs, the witness not present. I see no reasons for his non-appearance for cross-examination. Hence, the plaintiff evidence closed. For defendants’ evidence call on 24.10.1994.”