K BHASKAR RAO Vs. K A RAMA RAO

JUDGEMENT

(1.) Unsuccessful plaintiff in OS No.408 of 1988 has filed this appeal. Plaintiff, who is the younger brother of the defendant, filed the above suit for partition OS No.408 of 1988 on the file of the II Additional Senior Civil Judge, Ranga Reddy District, alleging as follows: (a) that the father of the parties i.e. Nagabhushanam died on 22/5/1972 and the mother of the parties later died on 2/2/1985. Originally the suit was filed seeking partition and separate possession of A and B schedule properties on the ground that they belong to joint family. Later, the suit schedule was amended by including C and D schedule properties also. The suit was, primarily, filed on the basis of the declaration by the defendant before the Urban Land Ceiling (ULC) Authorities that the plaint schedule properties belong to the joint family, but the defendant had given the name of one K. Venkateswara Rao, as his brother instead of that of plaintiff. The plaintiff, therefore, alleges that the said Venkateswara Rao has nothing to do with the joint family and though the defendant admitted that the plaint schedule properties are joint family properties, he intended to exclude the plaintiff and therefore, he filed the present suit. (b) While A schedule property is vacant land admeasuring 2374.52 sq. meters in Sy.No.102/1 situated at Nagole Village, Hayathnagar Mandal, Ranga Reddy District; B schedule property is another vacant land admeasuring 2023.43 sq. meters in Sy.No.101/1 situated at Nagole Village, Hayathnagar Mandal, Ranga Reddy District; C schedule property is another extent of land admeasuring 2420 sq. yards in Sy.No.101 situated at Nagole Village, Hayathnagar Mandal, Ranga Reddy District and D schedule land property is another extent of land admeasuring 2820 sq. yards in Sy.No. 101 situated at Nagole Village, Hayathnagar Mandal, Ranga Reddy District. (c) The defendant filed a written statement denying the plaint allegations that there is any joint family in existence. It is stated that the plaintiff and the defendant were both employees and working in and around Hyderabad and hardly ever stayed at their native village Padagadalavaru, Guntur District. It is also stated that the plaintiff and the defendant owned an extent of Ac. 13.22 cents of agricultural land in their native village. A and B schedule properties are claimed by the defendant as his own as having been purchased out of his savings and income from the lands gifted to his wife at the time of marriage for a consideration of Rs.5,953.60 ps. in the years 1965 and 1967. Just like the defendant, the plaintiff also purchased C schedule property in his own name in 1967-68. The defendant states that the plaintiff is fully aware that while A and B schedule properties are individual properties of defendant, C schedule property is the individual property of the plaintiff and there is no joint family property, except the agricultural land in the village, which alone is treated as joint family property; A, B and C schedule properties are not joint family properties. (d) The defendant asserts that he has not used a pie also from the agricultural income for purchasing A and B schedule properties. It is further alleged that the father of the parties purchased D schedule property but later after the death of the father, the parties had partitioned the properties under deed of partition dated 10/3/1975 and the said partition did not include any of the plaint schedule properties, as they are never treated as joint family properties. The defendant, further, explains that his cousin brother K. Venkateswara Rao was living jointly with the defendant when the Urban Land Ceiling Act (for short 'the Act') came into force and it is for that reason that in the declaration filed before the ULC authorities, the defendant included his name. In any case, the competent authority under the Act rejected the defendant's contention that A and B schedule properties are joint family properties and held that the said properties are self- acquired properties of defendant. The defendant also pleaded that plaintiff has intentionally suppressed his own house property bearing No. 16-2-751/80 admeasuring 160 sq. yards situated at State Bank Colony, Saidabad standing in the name of the wife and that of the plaintiff. Similarly, the plaintiff also suppressed another house property bearing No.16-2-751/80 admeasuring 150 sq. yards situated at State Bank Colony, Saidabad standing in his name and a plot bearing No.3 admeasuring 400 sq. yards in Sy.Nos.53 and 54 of Kothapet Village. The defendant claimed that all the aforesaid properties are purchased by his father from the agricultural income and as such, they are liable for partition. The objection of non-joinder was also raised on the ground that two daughters of late Nagabushanam are not impleaded. It is also alleged that the plaintiff, defendant and their mother have separately sold A, B, C and D schedule properties even before filing of the suit and as such, none of the properties are available for partition. (e) The defendant filed additional written statement stating that the plaintiff never mentioned A and B schedule properties as joint family properties in his own declaration and as such, cannot now contend that they are joint family properties. So far as C schedule property is concerned that was purchased by the father of the parties and was sold by the mother of the parties during her lifetime in the year 1984 and the sale proceeds were distributed. C schedule property, therefore, is not available for partition. So far as D schedule property is concerned the plaintiff himself has sold it to third parties but suppressing the same included it in the plaint schedule. (f) The plaintiff filed a rejoinder explaining that the house property standing in the name of his wife at Saidabad, as pointed out by the defendant was purchased by his wife through agricultural income of her lands and with financial assistance of her parents and the other house standing in the name of plaintiff himself was purchased by plaintiff through his own savings. So far as plot of 400 sq. yards at Kothapet is concerned, the plaintiff claims to have purchased it out of his own savings with the assistance of his wife and the said plot is already sold away. So far as non-impleading sisters is concerned the plaintiff claims that sisters were already married and were given sufficient share in the form of cash and articles and as such, they are not necessary parties. The plaintiff denied that their mother sold individually A to D schedule properties but claims that the defendant had executed gift deeds hurriedly within a week before the injunction orders in this suit were served on him.

(2.) On the basis of the aforesaid pleadings, the trial Court framed the following issues and additional issues: 1. Whether the plaint schedule properties are joint family properties? 2. Whether plaintiff is entitled for half share in suit schedule properties as prayed? 3. Whether there was proper partition between plaintiff and defendant under document dated 10.3.1975? 4. To what relief? Addl. Issues : 1. Whether the suit is bad for nonjoinder of daughters of late Nagabhushanam ? 2. Whether 'A', 'B', 'C, 'D' schedule properties are not available on the site?

(3.) The plaintiff adduced oral evidence of his own as PW1 and another witness PW2, who speaks of the plaintiff and defendant separately enjoying their agricultural lands. The plaintiff also marked Exs.A1 to A9, which are primarily copies of documents before the ULC authorities viz., affidavit of defendant as Ex.A1; affidavit of his cousin as Ex. A2; letter of the deceased mother of the parties seeking exemption under the Act as Ex.A3; Exs.A4 and A5 are certified copies of sale deeds under which the defendant purchased A and B schedule properties and Ex.A6 is the certified copy of the sale deed under which the father of the parties purchased D schedule properties and Ex.A7 is the certified copy of the sale deed in favour of the plaintiff for C schedule property; Ex.A8 is the certified copy of the sale deed executed in favour of plaintiff's cousin K. Venkateswara Rao and Ex.A9 is the order of the Land Reforms Tribunal, Guntur under the Agricultural Ceilings Act.