PATRI SEETHARAMA RAO Vs. KASTUFI VIJNANA BHASKARAM

JUDGEMENT

(1.) D-1 in OS 249/78, Sub Court. Guntur is the appellant herein. R-1 herein filed suit for partition f plalat-A aad B schedule properties iate five equal shares and for allotment of three such shares for separate possession of the same and for recovery of Rs. 2.000/- from D-1 and D-2 as damages, future profits interest at the rate of 6% p.a. and costs. The trial court passed a preliminary decree for partition of plaint-A schedule properties into five equal shares and foi allataeat ef three such shares to plaintiff and for possession of the same aad it was confirmed by the first appellate court. Being aggrieved D-l preferred this appeal.

(2.) D-2 aad D-4 to D-6 are sons of D-l. D-4 herein for himself and as next friend of D-5 and D-6 herein filed OS 71/55 against D-l herein and others for partition of plaiat schedule properties therein whioh include plaint-A schedule house herein. That suit was dismissed for default on 26-2-57. Sri RMV Bhujangasayana Rao advocate appeared for the plaintiffs ia the above suit. He filed SC 209/60, Additional District Munsif's Court. Guntur against D 4 to D 6 herein for Rs 475/- being his fee in OS 71/55 and for interest at 15.% p.a. from 26-2-60. Even by the date of said small cause case, D 5 and D 6 herein were aaiaors and as per order in IA 979/60, D 4 herein was appointed as guardiaa ad-litem for D 5 and D 6 herein who are D 2 aad D3 in the said suit sc 209/60 was received on 23-8-60. The said decree was transferred to Additional Sub Court, Guntur for execution. The decree holder therein filed EP 187/72 and got attached 3/5th share of D 4 to D 6 herein in the plaint schedule properties herein In the auction held on 20th March 1978, the same was purchased by plaintiff for Rs. 9,200/- the sale was duly confirmed and the sale certificate dated 12-6-78 was issued in his favour. He filed EA 1094/78 for posse ssion of the same. Though the purchase was for only 3/5th share, when the estern portion of the plaint-A schedule house was under lock and key, the same was broken open and plaintiff was put in possession of that estern portion by the Amin of the court on 2-8-78. Then he filed this suit.

(3.) D 3 is a tenant in the western side of plaint A schedule house. D 1 contended that plaint-A schedule property is his self acquired property and hence the plaintiff could not get any iitle under the sale certificate issued to him. It was also pleaded that an ex-parte decree was obtained against minors ie. D 5 and D 6 herein in SC 209/60 and it is void.