SRINIVASALU NAIDU Vs. DORAISWAMY NAIDU

JUDGEMENT

(1.) This appeal has been admitted to consider the following substantial question of law:

(2.) Brief BACKGROUND OF THE CASE:- Appellant is defendant No.1 in O.S. No.334/1989 and respondent No.1 is the plaintiff and respondent Nos.2 to 5 were defendants 2 to 5 in the said suit. Plaintiff instituted the suit for partition and separate possession claiming 1/3rd share in the suit schedule properties described as 'B' and 'C' schedules, and for appointment of Court Commissioner. The plaintiff has also prayed for division of movables and if same is not available, the value of the movables to the extent of his 1/3rd share and for mesne profit and other reliefs contending interalia that suit schedule properties are ancestral and joint family properties of Sri Chengaiah Naidu, father of plaintiff and defendant Nos.1 and Being the sons of Chengaiah Naidu, they constituted Members of the Hindu Undivided Joint Family, and on the demise of their father, mother of plaintiff and defendants No.1 and 2 were managing the properties and on her demise in the year 1989, plaintiff and defendant Nos.1 and 2 were in joint possession and enjoyment of all the suit schedule properties. It was further contended that there was no division in the family and defendant No.1 was looking after cultivation works in the suit lands. So also there being no independent right to sell the lands bearing Sy. No.37 and Sy. No.38 of Tatareddy Halli and there being no legal necessity to sell the same, it has been sold by 1st defendant in respect of which property plaintiff is entitled to 1/3rd share. Hence, partition and separate possession was sought for by the plaintiff.

(3.) Defendants on service of suit summons, appeared and defendant No.1 filed written statement and admitted that suit schedule properties are the ancestral joint family properties of plaintiff and defendant Nos.1 and 2 and their father Chengaiah Naidu constituted members of Hindu Undivided Coparcenary and they were in joint possession of the same. Except to the extent of expressly denying the plaint averments, all other averments made in the plaint were admitted. Based on the pleadings, defendant No.2 also filed his written statement. Defendant Nos.3 to 5, who are subsequent purchasers of the portions of the suit schedule properties, also filed their written statements denying the averments made in the plaint. On the basis of the pleadings, trial Court formulated the issues for its determination. Plaintiff got himself examined as P.W.1 and 54 documents were got marked as Exs.P.1 to 54. Defendant Nos.1 to 8 got themselves examined as D.W.1 to 8 and in all they got marked 10 documents as per Exs.D.1 to 10.