Smt.Kurella Nagamani And 6 Others v. Kavuru Rama Krishna And 7 Others

HON'BLE Dr.JUSTICE B.SIVA SANKARA RAO Second Appeal No.1280 of 2013

ORDER

The Second Appeal No.1280 of 2013 is filed by the 6 unsuccessful appellants in A.S.No.237 of 2012 impugning the concurrent findings in the order of lower appellate Court (Addl. District Judge, Narsapur), dt.23.08.2013, confirming the order of the trial Court (Senior Civil judge, Narsapur), dt.06.11.2012 passed in the partition final decree proceedings in FDIA No.681 of 1999.

2. The above referred Second Appeal appellants are the defendants 6 to 12, out of 12 defendants(hereinafter referred to as D.1 to D.12) of the partition suit O.S.No.27 of 1992 supra. The Second Appeal respondents R.4 to 8, from out of the 8 respondents are endorsed as not necessary parties. The respondents 1 to 3 herein are the plaintiffs in the partition suit O.S.No.27 of 1992 supra that was filed by them against D.1 to D.5 originally.

3. The above suit O.S.No.27 of was filed on 19.02.1992 by the three plaintiffs for partition of the plaint schedule property of Ac.2.00cents in T.S.No.788/ 8 of 14th ward in Palakollu Municipality area into four equal shares (in the alternative if entitled by D.2 also into 5 equal shares) and to allot one such share each to D.1,3,4 and 5 and in turn to allot an extent of 450 sq.yards of site from out of the share of D.1 to the plaintiffs 1 to 3, with the claim that they purchased each 150 sq. yards from D.1 under Ex.A.2 to A.4 registered sale deeds, dt.03.11.1989, which was pursuant to the sale agreement dt.25.11.1974 with part payment endorsements and

acknowledgments later thereon and despite demands for not cooperating for partition by said D.1 to 5. The suit was originally decreed exparte by preliminary decree dt.03.08.1992 as prayed for against said D.1 to 5 and later the exparte decree was set aside and the suit was on contest by D.5 was again decreed as prayed for on 30.03.1999.

4. Subsequent to the said preliminary decree dt.30.03.1999, the plaintiffs filed final decree petition in I.A.No.681 of 1999 supra U/ O.20 Rule 18 and Section 151CPC, with the averments that subsequent to the preliminary decree, in spite of demands by the plaintiffs, as the defendants did not come forward for compliance of the preliminary decree, they seek for appointment of AdvocateCommissioner to divide the plaint schedule property into four equal shares and to allot one such share to D.1 and to divide an extent of 450sq.yards of site as per Ex.A.2 toA.4 registered sale deeds from out of the share allotted to the share of the D.1 and to put the plaintiffs into separate possession of their 450sq.yards of site and for costs.

5. During pendency of the final decree petition in I.A.No.681 of 1999 supra, one K.Nageshwar Rao, a third party claiming purchased one of the items of the suit property from the D.5, filed implead petition in I.A.No.313 of 2001 and before disposal of the petition he passed away and later his wife and children filed implead petition in I.A.No.610 of 2003 to implead them as respondents 6 to 12 and as D.6 to D.12 in the final decree proceedings and the same was on contest allowed on 06.02.2006 and aggrieved thereby the plaintiffs filed C.R.P.No.1208 of 2006, that was disposed of on 23.06.2006 with

observation that the question of undertaking any discussion in the final decree proceedings, as to the claim or entitlement of the respondents 1 to 7-implead petitioners in I.A.No.610 of 2003 does not arise. D.5 among respondents 8 to 12 are D.1 to D.5. The purpose of impleading them in the suit shall be restricted and confined, only to the extent of insisting that t he it em said t o have been purchased by t hem be allot t ed t o t he share of 12t h respondent (D.5), if it is ot herwise possible. Beyond that, they cannot be permitted to agitate their claim, either against the petitioners (plaintiffs) in the Revision or even against respondent No.12(D.5) if any necessity arises as to adjudication of the claim of respondents 1 to 7 vis-à-vis respondent No.12, the same has to be worked out in a separate set of proceedings and not in this. With the said clarification, the revision petition is disposed of.

6. The impleaded D.6 to D.12 filed counter in the final decree petition in I.A.No.681 of 1992 stating that the husband of D.6 and father of D.7 to D.12-by name Nageswara Rao, entered into registered agreement of sale in February, 1986 with D.1 and D.4, who are sons of D.2 (since died) for an extent of 1,300 sq.yards site out of their share in the joint family properties. Subsequently, said Nageswara Rao, purchased another extent of 333 1/ 3sq.yards of site on 24.02.1987 in the T.S.No.788/ 5 for Rs.40,000/ - from D.1. He also purchased another extent of 180sq.yards of site in the same T.S.Number from D.4 for a valuable consideration of Rs.21,600/ - under a registered sale deed. Said Nageswara Rao also purchased another extent of 400sq.Yards of site in the same T.S.Number for a valuable consideration of

Rs.48,000/ - under a registered sale deed and also another extent of 180sq.yards of site in the same T.S.Number under a registered sale deed,dt.29.05.1991 for a valuable consideration of Rs.36,000/ -. Thus, said Nageswara Rao purchased total extent of 1,093 1/ 3sq.yards of site and his vendors handed over possession of said property. Subsequently, late K.Nageswara Rao raised two thatched huts in the said site and resided with his family members till his death. Said houses were mutated in municipal records in the name of K.Nageswara Rao and he alone paid taxes to the same and power supply connection is also stood in his name. Subsequently, he died intestate and said 1,093 1/ 3rd sq.yards of site in T.S.No.788/ 5 devolved upon D.6 to D.12 as absolute owners of said property. D.5Bangaru Venkateswara Rao, filed a suit O.S.

239 of 1989 on the file the Court of Junior Civil Judge, Palakollu against late K.Nageswara Rao and D.1-Bangaru Gopala Krishna, for injunction not to interfere with his possession and enjoyment of an extent of Ac.500sq.yards of site in T.S.No.788/ 5, which is part of the property, purchased by late K.Nageshwara Rao. The said suit was decreed on 29.04.1999. Against the said decree and judgment, said Nageswara Rao preferred an appeal in A.S.No.32 of 1999 on the file of the Court of Senior Civil Judge, Narsapur and same was allowed on 28.02.2002. Prior to the above suit, O.S.No.298 of 1988 was filed by D.2 and D.3 and one Bangaru Venkata Satya Seshu Kumar against late K.Nageswara Rao, D.1 and D.

4 and two others for mandatory injunction, directing the defendants therein for removal of wooden polls and hut raised by them in part of the schedule property in T.S.No.788/ 5, for an extent of Ac.0.251⁄2 cents. Said suit was dismissed on 15.04.1988.

plaintiffs therein preferred A.S.No.48 of 1996 and same was dismissed on 14.06.2000 confirming Judgment and decree in O.S.No.298 of 1988. Both the two judgments clearly show that K.Nageswara Rao is absolute owner of an extent of 1,093 1/ 3sq.yards of site and houses therein in T.S.No.788/ 5. The D.1 to D.5 having failed in the above suits in order to grab the property, brought into existence of the alleged sale deeds,dt.03.11.1989 in the name of the plaintiffs and obtained collusive decree. The D.6 to D.12 further submits that they are in possession and enjoyment of an extent of 1,093 1/ 3 cents of site and houses therein. The plaintiffs were alleged to be purchasers of the petition schedule property in the year 1989, will not get any right over the same because, late K.

Nageswara Rao already purchased said property in the year 1986 itself. As part of the schedule property purchased by late K.Nageswara Rao even prior to the date of purchase of the plaintiffs, any share in the property of these respondents of 1,093 1/ 3sq.yards cannot be allotted to the plaintiffs in seeking to allot 1,093 1/ 3sq.yards of site to the share of the D.1 and D.4 and ultimately to the respondents-D.6 to D.12.

7. The D.1 to D.5 set exparte. On hearing both sides, the trial Court appointed Sri V.Venkatacharyulu, Advocate, as AdvocateCommissioner on 20.06.2000 with a direction to divide the plaint schedule property into four equal shares and to allot one such share of D.1 to the plaintiffs. Accordingly, the Advocate-Commissioner executed the warrant and divided the plaint schedule property into four equal shares as ABCD plots with the help of surveyor and filed his report on 26.12.2000. The advocate-Commissioner mentioned in para

No.4 of the 1st report stating that total extent including the eastern side cement road comes to an extent of Ac.1-34 1⁄2 cents of site though the extent is mentioned in the plaint schedule as an extent of Ac.2.00cents. in Exs.A.2 to A.4 registered sale deeds, the vendor of the plaintiffs i.e. D.1 might have wrongly stated that he got undivided right out of an extent of Ac.2.00 and that D.1 stated that they got property by virtue of settlement deed,dt.24.11.1945 which was executed by his father by name Bangaru Sesha Chalam. In the settlement deed, in para-9, Item No.12, the extent was mentioned by them as an extent of Ac.1.35cents in T.S.No.788/ 5. The D.1,3,4 and 5 got an extent of Ac.1-35cents of site only as per settlement deed,dt.24.11.1945. But, the D.6 to D.12 raised an objection regarding the standard point for the measurements.

There is no question of encroachment by others as it is situated in the middle of the permanent structures. The D.1 to D.5 did not file any document to show that they got an extent of Ac.2.00 in T.S.No.788/ 5. In the 1st report in para-5 an extent of Ac.0.40cents of site was allotted to the portion of 'A' and the said portion was allotted to the D.1. An extent of Ac.0.30cents of site is allotted to the portion of 'B', it was allotted to D.3 and 'C' portion was allotted to D.4 and 'D' portion was allotted to D.5. Further the Commissioner stated that excess of an extent of Ac.0.10cents of site was allotted to 'A' portion as near to said portion, there is a public lavatory, under the impression, the public lavatory causes some nuisance.

8.

The Advocate-Commissioner filed his 2nd report, dt.03.04.2007, stating he divided said property of an extent of

Ac.1-34 cents of site into four equal shares and 'A' marked portion may be allotted to the D.1. After filing the 2nd report,dt.03.04.2007, the learned Senior Civil Judge ordered casting of lots. Against the said orders, the final decree petitioners-plaintiffs preferred revision before the High Court in CRP No.2801 of 2007 which was allowed on 15.07.2008 by setting aside the casting of lots by the learned Senior Civil Judge and with a direction to re-entrust the warrant to the Advocate-commissioner for taking measurements of the land with help of surveyor and with notice to parties and file report proposing division of property by metes and bounds in a viable manner and then the Senior Civil Judge shall pass appropriate order on merits after giving opportunity to both sides to file their objections. The revision order speaks that out of the plots A to D of the Commissioner's report filed after measurements and demarcation with survey, plot-A found vacant, Plots-B to D are with constructions and therefrom plot-A allotted to the share of D.1 by the Commissioner in his said report.

9. Accordingly, the Advocate-Commissioner on re-entrustment, executed the warrant and filed 3rd report,dt.24.10.2008 stating divided the schedule property into four equal shares as A,B,C and D shares and each measurement is an extent of Ac.0.32 1⁄2 cents of site. In para No.3 of the 3rd report,dt.24.10.2008, the Commissioner stated that the entire schedule property is covered with houses, but in B & C marked portions, some thatched sheds are under construction. Except that, there is no vacant site. Against the 3rd report, the D.6 to D.12(impleaded parties) filed objections stating that the vacant site is situated in 'A' marked portion, but not B and C marked portions. Then

Commissioner filed answer stating it is a mistake and the vacant site is situated in 'A' marked portion and not in B & C marked portions. Again the warrant was re-entrusted to the Advocate-Commissioner who again executed the warrant and filed his 4th report with plan mentioning the schedule property is an extent of Ac.1.34 1⁄2 cents of site. Said property was divided into 4 shares as A,B,C and D. As per the 1st report 'A' was allotted to the D.1, in the 2nd report the Commissioner proposed plot 'A' to be allotted to the D.1. In the 3rd report, partitioned an extent of Ac.1-34 1⁄2 cents of site equally in a visible manner to the D.1,3,4 and 5. In the 4th report, the AdvocateCommissioner stated that earlier reports may be read as part of the 4th report.

10. The D.1 to D.5 not filed appeal against the preliminary decree, so also by D.6 to D.12 as third party appellants with leave if any but for impleaded to come on record to participate only in the final decree proceedings in I.A.No.681 of 1999 as referred supra that was ordered in I.A.No.610 of 2003. The rights of the D.6 to D.12 were decided by the High Court in C.R.p.No.1208 of 2006, that was filed against the orders in I.A.No.610 of 2003, in holding by the High Court as referred supra that the purpose of impleading the D.6 to D.12 in the suit shall be restricted and confined, only to the extent of working out the equities if it is otherwise possible and nothing beyond and they cannot be permitted to agitate their claim, either against the D.6 to D.12 or even against D.12.

11. The total extent is not Ac.2-00cents, but an extent of Ac.1-34 cents of site as per the settlement deed,dt.24.11.1945 is

crystal clear so also from the reports of the Advocate-Commissioner who divided the property into four equal shares i.e. an extent of Ac.0.32 1⁄2 cents of site, if the same converts into square yards i.e. Ac.0.32 1⁄2 cents x 48sq.yards=1550sq.yards. The plot-A is vacant also clear from the Commissioner's reports referred supra.

12. The order of the learned Senior Civil Judge in the above factual background, in the final decree petition FDIA No.681 of 1999 dt.06.11.2012 referring to the above facts upto para-22 of the order speaks further that plaintiffs are entitled only 450 sq.yards of site as per Exs.A.2 to A.4 registered sale deeds out of 1,550 sq.yards of site, if the Court allots 450sq.yards of vacant site, there is surplus of 1100sq.yards of site be given to the D.1. As per the orders of the High Court in C.R.P.No.1208 of 2006, the D.6 to D.12 have no right equal that of these plaintiffs, the rights of the D.6 to D.12 were minimized. They cannot agitate as like that of the petitioners in these proceedings. Now, this Court can give 1st priority to the plaintiffs and later priority can be given to the D.6 to D.12.

As per the Commissioner's reports, 'A' plot is vacant site and the remaining sites are covered with constructions. In case this Court order the casting of lots and then if the construction area allotted to the petitioners, the constructed portions will be demolished that will cause hardship to the D.6 to D.12 and gives scope for multiplicity of proceedings. The High Court also considered the same and set aside casting of lots. Any how, as per Commissioner reports, there is vacant site in 'A' portion of schedule property and the Advocate-Commissioner also proposed in 1st and 2nd reports allotment of vacant site i.e. plot 'A' to the D.1.

per the 3rd report also the Commissioner filed answers preparing allotment of 'A' plot to the D.1. Considering the pleas raised by the plaintiffs and the D.6 to D.12 and it is made convenient to both parties that allotment of plot 'A' to the D.1 better way, because, there is vacant site in 'A' plot. Further the petitioners-plaintiffs filed a memo to appoint an Advocate-commissioner to divide 450 sq.yards of site out of 'A' plot allotted to the D.1. Now, 'A' plot is 1550sq.yards of site and out of that, an extent of 450sq.yards of site can be divided and allotted the same to the plaintiffs by metes and bounds and accordingly allowed the petition.

13. Impugning the same, the D.6 to D.12 preferred A.S.No.237 of 2012 before the lower appellate Court and the lower appellate Court after hearing both sides, dismissed the appeal by its judgment dt.06.11.2012 confirming the order of the lower Court. The appeal judgment reads on the relevancy out of the 44 paras, that as per orders in C.R.P.No.1208 of 2006, the High Court observed the purpose of impleading the parties (R.1 to R.7 of the revision) is confined to work out equities if possible and nothing beyond. The second Advocate-Commissioner's report dt.03.04.2007 speaks scheme of partition pursuant to which lots were drawn and plaintiffs preferred CRP No.2801 of 2007 where it is observed that notice to the impleaded parties supra not given by Commissioner before division and in showing the excess 10cents after allotment of ABCD shares, to A share with no reason thereby set aside the casting of lots with a direction to re-entrust the warrant to measure after notice to the parties and to file report in a viable manner. The next

Commissioner's report after notice since filed and on objections regarding mistaken mention of vacant site as if in plots-B&C instead in plot-A was clarified and C.R.P.No.3192 of 2010 filed against the docket order,dt.03.06.2010 of the trial Judge and same was set aside by High Court by remanding for fresh and expeditious disposal (with observation of the order speaks compromise talks failed and in casting of lots made, without reasons to say decision on merits). The lower appellate Court's Judgment (subject matter of the second appeal impugnment) from para-34 speaks further of the fact that the D.7 to D.12 were not parties to preliminary decree much less for 1093 1/ 3rd sq.

yards site to allot to them pursuant to several purchasers from some of the defendants respectively, leave apart the scope of their impleadment and participation in the final decree proceedings is narrowed by the order in C.R.P.No.1208 of 2006 supra and as such their rights are restricted and they have no right to claim beyond preliminary decree or on the correctness of the preliminary decree from preliminary decree made final as per the expression of the High Court in Rukiya Bi Vs. Syed Afzal1 and also referred the expression of the Apex Court in this regard in Smt. R. Seethamma @ Seetha ... vs M.

cannot claim better rights to the original parties over the property covered by the preliminary decree relief but for any further remedy of them is to file a separate suit to work out any remedies against the so called vendors and not herein to agitate in the final decree proceedings that are to be passed only pursuant to the preliminary decree and as such there is no illegality or irregularity in the impugned order of the trial Court in the final decree proceedings.

14. Impugning the same, the D.6 to D.12 preferred the present Second Appeal with the grounds that the Courts below erred in passing of final decree as sought by the plaintiffs without appreciating their claim in a proper perspective. There is no dispute with regard to their claim that they have purchased an extent of 1093 1/ 3 sq.yards of site from out of the joint family property of the defendants and they were in possession since the date of purchase. Therefore, the claim of the appellants cannot be ignored while dividing the property as per the decree in O.S.No.27 of 1992.

The Courts below should have seen that the appellants have purchased the property much prior to the purchase of the plaintiffs and much prior to the filing of the suit for partition and they were in possession and enjoyment of the property to an extent of 1093 1/ 3 sq.yrds and their possession cannot be disturbed while executing the decree in O.S.No.27 of 1992 as the appellants are not parties to the said suit. The Courts below misread and misunderstood the purport of the order in C.R.P.No.1208 of 2006 and further erred in interpreting said order adverse to the interest of them though said order specifically protects their interest insofar as the property purchased by them.

that the earlier litigation in O.S.No.239 of 1989 and A.S.No.32 of 1999 and also in O.S.No.298/ 88 and A.S.No.48 of 96 itself is an evident of their continuous possession over the property purchased in T.S.No.788/ 5 and protected their interest while passing the final decree in O.S.No.27 of 1982. The Courts below failed to consider the evidence of one of them as R.W.1 and Exs.B.1 to B.4, thereby committed error while passing the final decree. The extent of land in T.S.No.788/ 5 as per the decree is Ac.2.00cts. Whereas, as per the report of the Commissioner it is only Ac.1.34 1⁄2 cents and the allotment of shares suggested by the Advocate-Commissioner was also varied and uneven. Therefore, passing of the final decree without verifying said aspects in a proper perspective cannot be sustained.

The Courts below gravely erred in directing the AdvocateCommissioner to divide 450sq.yards as claimed by the plaintiffs from plot-A without adjusting the equities among the parties and ignoring their claim that they are in possession and enjoyment of said property for the last 25years. The Courts below should have seen that they are in possession and enjoyment of an extent of 1093 1/ 3 sq.yards of site having purchased same under Exs.B.1 to B.4 for the last 25 years which is identified as plot-A by the Advocate-Commissioner and should have seen that the plot-A consisting of only 110 sq.yards and should have protected their interest. The other reasons given by the Courts below in passing final decree without giving consideration to their objections are not sound and tenable.

The following substantial questions of law arise for consideration by the High Court.

1) Whether the Courts below are justified in passing of final decree in O.S.No.27 of 1992 by directing the

Advocate-Commissioner to divide 450 sq.yards of site out of the site in Plot-A and allot the same to the plaintiffs without considering the case of the appellants that they were in possession and enjoyment of 1093 1/ 3sq.yards in plot-A for the last 25 years on the basis of the Exs.B.1 to B.4 registered sale deeds particularly when the appellants were not parties to the suit in O.S.No.27 of 1992 and when no land is available over and above 1093 1/ 3 sq.yards in plot-A?.

2) Whether the Courts below can dispossess or disturb the possession of the appellants from an extent of 1093 1/ 3sq.yards in T.S.No.788/ 5 while passing final decree in O.S.No.27/ 92 when the appellants were not parties to the said decree?

3) Whether the observation of the Courts below is not perverse insofar as understanding the purport of the order in C.R.P.No.1208 of 2006, C.R.p.No.2801 of 2007 and C.R.P.No.3192/ 2010?

4) Whether the order in FDIA No.681 of 1999 and the judgment in A.S.No.237 of 2012 are sustainable for nonconsideration of the evidence of R.W.1 and Exs.B.1 to B.4?

5) Whether the order of passing of final decree is sustainable without casting of lots simply directing the Commissioner to divide 450sq.yards from Plot-A and allot the same to the plaintiff when the same was in possession of the appellants for the last 25 years pursuant to Exs.B.1 to B.4 sale deeds?

6) Whether the Courts below are right in travelling beyond the scope of the decree in O.S.No.27 of 1992 by taking the extent of the suit schedule property as Ac.1.34 1/ 3 cts. when it is Ac.2.00cts. As per the pleading in the plaint and decree, without seeking necessary amendment to that effect?

15. This Court from above grounds raised in the Second Appeal before admission on 24.01.2014 ordered status quo existing as of now to be maintained and the interim order is extending from time to time.

16. It is now from hearing of both parties before admission taken up to admit or not the Second Appeal from any substantial question of law involved in deciding or not, which is a pre-requisite to admit the appeal.

17. Heard before admission from the above material in deciding to admit or not the Second Appeal and perused the material on record in this regard and within the scope to decide any substantial question of law involved or not.

18. Undisputedly, the original exparte decree passed on 03.08.1992 in the suit against the original defendants 1 to 5 was set aside on the application of D.5 and on contest the preliminary decree dt.30.03.1999 between plaintiffs and D.1 to D.5 as parties to it was passed and where under defined the rights for partition of the plaint schedule property into four equal shares and to allot one such share to D.1 and out of it for the 450sq.yards in favour of the plaintiffs as they purchased the same from D.1 under Exs.A.2 to A.4 registered sale deeds. The very plaint averments that also in gist incorporated in the preliminary decree dated 30.03.1999 supra as to the suit claim is crystal clear of the Ex.A.2 to A.4 registered sale deeds purchased from D.1 by plaintiffs for 450sq.yards is not the purchase only on 03.11.

1989 but under original sale agreement prior to that on dt.25.11.1974. once such is the case, even coming to the contention of the Second Appeal appellants/ defendants 6 to 12 in claiming through some of the defendants 1 to 5 of respective purchasers one of which allegedly in 1986 only and not before and as such on that there is no any substantial question of law involved even raised as if one of the grounds of substantial question of law. The commissioner's reports are clear of vacant site in plot-A and even the objections filed by the Second Appeal appellants/ defendants 6 to 12, on 03.04.

and not in shares B to D and for sake of convenience and to give effect to the preliminary decree passed by the Court, the share-A may be allotted to the D.1. Once such is the case and from the above of the plaintiffs purchased traced back to 1974 sale agreement, which is prior in point of time even to the purchase even any extent from D.1 also along with D.4 or D.2 by D.6 to D.12 from or after 1986, that too, out of the total and available extent of Ac.1.34 cents referring to the original source of title by registered settlement of 1945 and of which four shares to be divided for each Ac.0.

341⁄2 cents or so from the land available on ground including on survey through the surveyor conducted by the commissioner including after their participation and their presence pursuant to the earlier order of remand supra in revision, and from no independent rights D.6 to D.12 are claiming but for through D.1 to D.5 or any of them respectively and once they were parties to the preliminary decree in O.S.No.27 of 1992, the D.6 to D.12 in the final decree proceedings cannot ask for reopening of the preliminary decree and what are the rights to be worked out even under equity including from the observations in the order under revision in CRP No.1208 of 2006 is to claim their rights in equity pursuant to the preliminary decree, for their 1093 1/ 3 sq.

yards if possible and it does not mean they have to be given preference to the defined right of the plaintiffs for 450 sq.yards out of D.1's share of about 1550 sq.yards worked out by the Commissioner's reports consistently from what is discussed supra and as such there is no any substantial question of law involved to interfere with the impugned concurrent findings of the Courts below to admit the Second Appeal.

19. Accordingly and in the result, the Second Appeal is dismissed before admission for no substantial question of law involved to admit.

Consequently, miscellaneous petitions if any pending in this Second Appeal shall stand closed.

_______________________ Dr. B. SIVA SANKARA RAO, J Date:22.01.2018.

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