Suit for partition - lower court rightly decreed the suit where as single judge wrongly set aside the same with out framing proper points for consideration under Rule - 31 of Order - XLI of the Code of Civil Procedure, 1908. = LPA was allowed = = published in http://judis.nic.in/judis_andhra/qrydisp.aspx?filename=10576

Suit for partition - lower court rightly decreed the suit where as single judge wrongly set aside the same with out framing proper points for consideration under Rule - 31 of Order - XLI of the Code of Civil Procedure, 1908.  = LPA  was allowed =
Whether the schedule properties are the self acquired properties of the 2nd
defendant? 
The trial Court passed a preliminary decree directing the property to be
divided into three (03) equal shares and for allotment of one share each to the
plaintiffs.  It was also observed that the
1st defendant shall be entitled to retain 1/3rd of the property, representing
the share of the 2nd defendant.

15.  In the appeal preferred by the plaintiffs, no points as such were framed.
The learned single Judge took the view that the
2nd defendant was not possessed of any joint family funds nor any nucleus of the
joint family, to utilize the same for purchase of the property.  On that basis,
preliminary decree passed by the trial Court was set aside.

Whether there existed any nucleus to enable the 2nd defendant to acquire
any properties?   

The record discloses that the family possessed a house at that place.
In addition to that, way back in the year 1949, an extent of Acs.11-00 was taken
on permanent lease from one Subba Reddy and others and the family was  
cultivating it.  Thereafter, the family acquired certain properties.  The fact
that three items of joint family properties were sold under Exs.A-6, A-7 and A-8
in the year 1960 discloses that the family acquired those items.  Though the
consideration under those documents appears to be too meager, if one takes into
account, the value that prevailed in those days, it was fairly considerable.

18.  The 2nd defendant acquired the land of an extent of
Acs.14-00, in the year 1960.  That purchase was contemporaneous to the sales 
under Exs.A-6 to A-8.  Shortly thereafter, the family house was sold under Ex.A-
12 on 07-06-1962 for a sum of Rs.5,000/-.  The 2nd defendant got his own share
in those sale proceeds.  Over the period, the land of Acs.14-00 purchased under
Ex.A-10 was divided into house plots and sold as house sites, by the 2nd
defendant.  It is obviously with those sale proceeds that the 2nd defendant
purchased the suit schedule property of Acs.6-69 cents on 16-10-1969 through
Ex.B-1.  
When this is the background, it is very difficult to infer or assume
that the suit schedule property was purchased by the 2nd defendant with his own
funds and without any benefit or aid of the joint family nucleus or the
ancestral properties.

There is some uncertainty as to the nature of relief claimed in relation to
the mesne profits.  As the litigation started almost four decades ago, we do not
want to keep it pending any longer.  We clinch the issue by directing that the
legal representatives of the 1st defendant shall be under the obligation to pay
Rs.50,000/- (Rupees fifty thousand only) to the plaintiffs towards past mesne
profits and damages.

23.  Hence, the appeal is allowed.  The preliminary decree passed by the trial
Court is upheld subject to the direction as to payment of Rs.50,000/- to the
plaintiffs.  There shall be no order as to costs.


HONOURABLE SRI JUSTICE L.NARASIMHA REDDY AND HONOURABLE SRI JUSTICE M.S.K.JAISWAL                

L.P.A. No.93 OF 2002

11-11-2013

V.Venkatakrishna Reddy and another..  Appellants

Chevireddigari Chinna Changa Reddy (died) per L.Rs. and ..  Respondents

Counsel for the appellants : Sri K.V. Subrahmanya Narsu

Counsel for respondents 1 and 3 to 9 :Sri M.V.S. Suresh Kumar

<GIST:

>HEAD NOTE:  

?CASES REFERRED:    

HONOURABLE SRI JUSTICE L. NARASIMHA REDDY          

AND

HONOURABLE SRI JUSTICE M.S.K. JAISWAL      
     
L.P.A. No.93 OF 2002

JUDGMENT: (Per Hon'ble Sri Justice L. Narasimha Reddy)

The plaintiffs in O.S. No.90 of 1973 on the file of Additional Subordinate
Judge, Tirupati, are the appellants.  They feel aggrieved by the judgment and
decree in A.S. No.2164 of 1984, passed by a learned single Judge of this Court.

2.  For the sake of convenience, the parties are referred to as arrayed in the
suit.

3.  There is some uncertainty as to the nature of relief claimed in relation to
the mesne profits.  As the litigation started almost four decades ago, we do not
want to keep it pending any longer.  We clinch the issue by directing that the
legal representatives of the 1st defendant shall be under the obligation to pay
Rs.50,000/- (Rupees fifty thousand only) to the plaintiffs towards past mesne
profits and damages.

23.  Hence, the appeal is allowed.  The preliminary decree passed by the trial
Court is upheld subject to the direction as to payment of Rs.50,000/- to the
plaintiffs.  There shall be no order as to costs. It was pleaded that their ancestors were
originally from Kadapa District and migrated to Tirupati several decades ago,
and there, the family has also taken on lease, an extent of Acs.9-00 of land
apart from acquiring valuable properties, and with the nucleus of the joint
family, the suit schedule property was acquired.  It was also alleged that the
2nd defendant purchased an extent of Acs.14-00 of land long ago and sold the
same by dividing it into plots.  The sale proceeds are said to have been
utilized in purchasing the suit schedule property.  They have also pleaded that
the 2nd defendant was addicted to vices and the property was sold, only to meet
his expenditure therefor.

4.  The suit was contested by the 1st defendant alone.  He pleaded that the suit
schedule property was self-acquisition of the 2nd defendant and that the
plaintiffs did not have any right to insist on partition.  He alleged that the
joint family was not possessed of any valuable assets and for all practical
purposes, it just migrated to Tirupati for livelihood.  It was alleged that by
dint of hard work, the 2nd respondent acquired some properties and the
appellants do not have any right over the same.  His further plea was that the
suit schedule property was sold for family necessities.

5.  During the pendency of the suit itself, defendants 1 and 2 died.  While the
plaintiffs are legal representatives of the
2nd defendant, defendants 3 to 9 are legal representatives of the
1st defendant.

6.  Through its judgment dated 31-07-1984, the trial Court passed a preliminary
decree.

7.  Aggrieved by the preliminary decree passed by the trial Court, legal
representatives of the 1st respondent preferred A.S. No.2164 of 1984 before this
Court.  The appeal was allowed through judgment dated 08-11-1994.  Hence, this
L.P.A. is preferred under Clause 15 of the Letters Patent.

8.  Sri K.V. Subrahmanya Narsu, learned counsel for the appellants, submits that
the learned single Judge has proceeded on the assumption that the family of the
2nd respondent was not possessed of any resources and that the suit schedule
property is his self-acquisition.  He contends that long ago in the year 1961,
the 2nd respondent purchased an extent of Acs.14-00 of land and by that time,
the income from the land taken on lease, and sale proceeds under Exs.A-6 to A-8
were available.  He submits that the land covered by Ex.A-10 was sold by
dividing it into plots and with that sale proceeds, the suit schedule property
was purchased, and by no stretch of imagination, it can be said to be self-
acquisition or absolute property of the 2nd defendant.
He contends that the trial Court passed the preliminary decree on the basis of
oral and documentary evidence and the learned single Judge has reversed the
same, without there being any valid basis.

9.  Sri M.V.S. Suresh Kumar, learned counsel for the 1st defendant, submits that
though the plea that the property was sold for the expenditure incurred on
account of vices was taken, the plaintiffs did not substantiate the same.  He
submits that the evidence on record would clearly establish that the 2nd
defendant was hard-working in nature and he acquired various items of property
with his own funds.
He contends that there was absolutely no family nucleus and the so-called sale
proceeds under Exs.A-6 to A-8 are too meager to constitute the consideration for
purchase of any property.
10.  Though the suit was filed for partition, in effect, it was aimed at
annulling the sale deed dated 27-06-1973 marked as Ex.A-1.  By that time, both
the plaintiffs were minors.  The litigation was being pursued by their mother.
The principal contention on behalf of the plaintiffs was that their father, the
2nd defendant, was addicted to vices and to meet the expenditure therefor, he
sold away the property.

11.  The suit was contested only by the 1st defendant and the
2nd defendant remained ex parte.

12.  Based on the pleadings, the trial Court framed the following issues for its
consideration:

"1.  Whether the schedule properties are the self acquired properties of the 2nd
defendant?

2.  Whether the 2nd defendant as addicted to all sorts of vices as stated in
para 7 of the plaint?

3.  Whether the 1st defendant is a bonafide purchaser of the said properties
covered by the said sale deed dt.27.6.73?

4.  Whether the plaintiffs have right title or interest in the properties
purchased by this 1st defendant?

5.  Whether the plaintiffs are properly represented by natural guardian?

6.  Whether this suit for partial partition is maintainable ?

7.  Whether the cause of action is file this suit is not true?

8.  Whether the plaintiffs are entitled to claim 2/3rd share in the properties
purchased by the 1st defendant?
9.  Whether the plaintiffs is entitled to the damages claimed in this suit and
if so what amount?

10.  Whether the plaintiffs are estopped from claiming share in the suit
properties?

11.  Whether the suit properties are not properly valued and sufficient court
fee is not paid?

12.  Whether the suit without asking for cancellation of the sale deed is
maintainable?

13.  To what relief?"


13.  On behalf of the plaintiffs, PWs.1 to 5 were examined and Exs.A-1 to A-
13(a) were filed.  On behalf of the 1st defendant, DWs.1 to 5 were examined and
Exs.B-1 to B-2(a) were filed.

14.  The trial Court passed a preliminary decree directing the property to be
divided into three (03) equal shares and for allotment of one share each to the
plaintiffs.  It was also observed that the
1st defendant shall be entitled to retain 1/3rd of the property, representing
the share of the 2nd defendant.

15.  In the appeal preferred by the plaintiffs, no points as such were framed.
The learned single Judge took the view that the
2nd defendant was not possessed of any joint family funds nor any nucleus of the
joint family, to utilize the same for purchase of the property.  On that basis,
preliminary decree passed by the trial Court was set aside.

16.  The points that arise for consideration before us are:

(1)  Whether there existed any nucleus to enable the 2nd defendant to acquire
any properties?

(2)  Whether the learned single Judge was justified in reversing the preliminary
decree passed by the trial Court?

POINT No.1:


17.  It has already been mentioned that the ancestors of the plaintiffs were
from Kadapa District.  Several decades ago, the
2nd defendant, who is father of the plaintiffs, migrated to Tirupati.
The record discloses that the family possessed a house at that place.
In addition to that, way back in the year 1949, an extent of Acs.11-00 was taken
on permanent lease from one Subba Reddy and others and the family was  
cultivating it.  Thereafter, the family acquired certain properties.  The fact
that three items of joint family properties were sold under Exs.A-6, A-7 and A-8
in the year 1960 discloses that the family acquired those items.  Though the
consideration under those documents appears to be too meager, if one takes into
account, the value that prevailed in those days, it was fairly considerable.

18.  The 2nd defendant acquired the land of an extent of
Acs.14-00, in the year 1960.  That purchase was contemporaneous to the sales 
under Exs.A-6 to A-8.  Shortly thereafter, the family house was sold under Ex.A-
12 on 07-06-1962 for a sum of Rs.5,000/-.  The 2nd defendant got his own share
in those sale proceeds.  Over the period, the land of Acs.14-00 purchased under
Ex.A-10 was divided into house plots and sold as house sites, by the 2nd
defendant.  It is obviously with those sale proceeds that the 2nd defendant
purchased the suit schedule property of Acs.6-69 cents on 16-10-1969 through
Ex.B-1.  When this is the background, it is very difficult to infer or assume
that the suit schedule property was purchased by the 2nd defendant with his own
funds and without any benefit or aid of the joint family nucleus or the
ancestral properties.

19.  The suit schedule property was sold in favour of the
1st respondent on 27-06-1973, for a consideration of Rs.20,000/-.
Hardly within one month, the mother of the plaintiffs swung into action and got
issued a notice.  Taking advantage of the fact that the plaintiffs were minors
and the 2nd defendant colluded with the
1st defendant and the plaintiffs were denied of the benefits thereof.
The trial Court has examined the oral and documentary evidence in detail and
arrived at the conclusion that the suit schedule property was acquired by
utilizing the joint family nucleus and accordingly passed a decree.  
We are
convinced that the findings recorded by the trial Court as to the nature of the
property is based on evidence and the appellants were entitled to seek partition
thereof.  We answered the point accordingly.

20.   Basically, the learned single Judge did not frame any point for
consideration in the appeal as required under Rule - 31 of Order - XLI of the
Code of Civil Procedure, 1908.  Though the Hon'ble Supreme Court, in certain
precedents held that failure to frame point is fatal to the judgment in an
appeal, we do not propose to rest over on that proposition.  The discussion by
framing of points had its own advantage, wherein the relevant facts and
provisions of law can be analysed objectively.  Be that as it may, the learned
single Judge did not take into account, the fact that long before the suit
schedule property was acquired; the 2nd defendant purchased a large extent of
Acs.14-00 of land under Ex.A-10 by utilizing the sale proceeds under Exs.A-6 to
A-8.  In addition to that, he had the benefit of his share of consideration
under Ex.A-12.  Therefore, the finding recorded by the learned single Judge that
the 2nd respondent did not have the benefit of any jointly family properties or
nucleus cannot be sustainable in law.  The point is accordingly answered.

POINT No.2:


21.  The second point is, in a way dependant upon the answer to the 1st point.
In view of our answer to the 1st point, we answer the second point also in
favour of the plaintiffs.

22.  There is some uncertainty as to the nature of relief claimed in relation to
the mesne profits.  As the litigation started almost four decades ago, we do not
want to keep it pending any longer.  We clinch the issue by directing that the
legal representatives of the 1st defendant shall be under the obligation to pay
Rs.50,000/- (Rupees fifty thousand only) to the plaintiffs towards past mesne
profits and damages.

23.  Hence, the appeal is allowed.  The preliminary decree passed by the trial
Court is upheld subject to the direction as to payment of Rs.50,000/- to the
plaintiffs.  There shall be no order as to costs.

_______________________  
L. NARASIMHA REDDY, J  
______________________  
M.S.K. JAISWAL, J
November 11, 2013.

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