GADIYARAM LAKSHMLNARAYANA MURTHY Vs. GADIYARAM VENKATA RATHNAM

JUDGEMENT

(1.) The plaintiff filed this Second Appeal against the judgment and decree in A. S. No. 101/1987 dated 27-03-1995 on the file of the Additional District, Judge, Tirupathi confirming the judgment and decree in O.S.No. 695/1980 dated 15-06-1987 on the file of the Principal District Munsif, Tirupathi in dismissing the suit. For the sake of clarity, the parties herein are referred to as they are arrayed in the original suit.

(2.) The 1st defendant - Gadiyaram Venkata Ratnam is the father of the plaintiff, defendants 2 to 5 are the brothers of the plaintiff and all are sons of the 1st defendant. The 6th defendant Rayadurgam Sambiah is the decreeholder of O.S.No. 646/1971. During the pendency of the suit, the 2nd defendant died and his legal representatives were brought on record as defendants 7 to 10. The 11th defendant namely, Smt. Parameswaramma is the sister of the 6th defendant. During the pendency of the First Appeal, the 6th defendant died and , his legal representatives were brought on record as defendants 14 to 18. The 1st defendant - Gadiyaram Venkata Ratnam also died during the pendency of the First Appeal and his legal heir was brought on record as defendant No. 19.

(3.) The plaintiff filed the suit for declaration that the judgment and decree in O.S.No. 646/1971 on the file of the I Additional District Munsif, Tirupathi, as decreed in A.S.No. 35/1975 on the file of the Subordinate Judge, Tirupathi as confirmed in S. A. No. 389/1978 on the file of this Court is collusive, fraudulent and not binding on the plaintiff and to consequently restrain the defendant No. 6 from in any way interfering with the peaceful possession and enjoyment of the plaint schedule property by the plaintiff as a Manager of the joint family and accord the relief of partition and separate possession of the plaintiff's 1/6th share in the plaint schedule property. The plaint schedule property is situated at Chittoor District, Chandragiri Taluk, Thondavada village accounts, Thambakalva Sy.No. 237/4-A an extent of 0.89, Sy.No. 239/4-A - dry an extent of Ac. 1-84 cents, Sy.No. 241/4-B-dry an extent of 0-47 cents, total extent Ac. 3-20 cents in this only an extent of Ac. 1-96 cents. The plaintiff's case is that the plaint schedule properties are the ancestral joint family properties of the plaintiff and defendant Nos. 1 to 5 and the 1st defendant cultivated the habit of leading a wayward life and was not taking care of family welfare and neglected the family and the 1st defendant was living with the 2nd defendant in their native village and the plaintiff alone was managing the affairs as a Manager of the joint family and he is in possession of the plaint schedule properties and while so on 02-12-1980 the plaintiff came to know that the 6th defendant obtained a collusive and fraudulent decree against the first defendant and others in O.S.No. 646/1971 (Ex. A-9) which was confirmed in A.S. No. 35/1975 and also in S.A.No. 389/1978 and though the plaintiff is the manager of the joint family he was not impleaded as a party to Ex. A-9 suit proceedings and the 1st defendant colluded with the plaintiff in 0-S.No. 646/1971 as the 6th defendant is a very close associate of the 2nd defendant. The 6th defendant filed O.S.No. 646/1971 on the ground that Smt. Parameswaramma -11th defendant alleged to be the wife of A. Ramachandraiah executed a settlement deed on 21-06-1971 (Ex. A-2) in respect of the suit schedule properties of Ex. A-9 in favour of her brother - 6th defendant. The plaintiff stated that Paramaeswramma is not the wife of A. Ramachandraiah, and therefore, Parameswaramma can convey nothing under Settlement Deed (Ex. A-2) in favour of the 6th defendant. Defendant Nos. 1 and 2 in collusion with the said Parameswaramma and the 6th defendant got the decree (Ex. A-9). The plaint schedule properties originally belonged to Gadiyaram's family. 'Ex. A-9 suit schedule properties were nominally transferred in favour of A. Ramachandraiah, but the said Ramachandraiah or any of his legal heirs were never in possession of the plaint schedule properties at any point of time and the plaintiff alone is in possession and Smt. Parameswaramma without any right, title and interest transferred the properties of A. Ramachandraiah in favour of 6th defendant and the 6th defendant filed the suit against the father of the plaintiff and obtained a collusive decree (Ex. A-9) which was confirmed in the First Appeal and also by the High Court in the Second Appeal. Ex. A-9 schedule properties are only to an extent of Ac. 1-69 cents and the said extent along with other ancestral properties was allotted to the plaintiff and he is in exclusive possession of the same from 1971.