SATHRASALA NARSIMHULU Vs. B GEETA KUMAR

JUDGEMENT

(1.) This Second Appeal is preferred against the order of the III Additional District and Sessions Judge, Anantapur in A.S. No. 52 of 2007 dated 22.02.2011 dismissing the appeal preferred against the judgment and decree in O.S. No. 9 of 1998 dated 11.04.2007 on the file of the Senior Civil Judge, Kadiri. The Appellant herein is the first defendant in O.S. No. 9 of 1998, a suit filed by respondent - plaintiff Nos. 1 and 2 herein for declaration of title and recovery of possession, (parties shall hereinafter be referred to as they are arrayed in the Suit). The plaintiffs are the children of Sri B.L. Narayana Rao who died two years prior to the filing of the Suit. They had earlier filed O.S. No. 19 of 1995 seeking partition and separate possession of their 4/7th share in the joint family properties. During the pendency of the said Suit, and despite an order of injunction against the second defendant not to alienate the suit schedule property, defendant Nos. 2 and 3 executed a sale deed in favour of the first defendant which, according to the plaintiffs, is hit by Section 52 of the Transfer of Property Act, 1882 (for short, 'the Act'). Even during the pendency of the said suit, Defendant Nos. 2 and 3 had delivered possession of the suit schedule property to the first defendant. By virtue of a compromise decree, passed in O.S. No. 19 of 1995 dated 20.01.1997, the suit schedule property in O.S. No. 9 of 1998 fell to the share of the plaintiffs and, based thereupon, the plaintiffs acquired title over the suit schedule property. The plaintiffs also claimed damages at ' 2,000/- per month for use and occupation by the first defendant (appellant herein) of the suit schedule property ever since December, 1996.

(2.) The first defendant, in his written statement which was adopted by defendant Nos. 2 and 3, contended that the second defendant was the only son of Sri B.L. Narayana Rao, he was looking after his parents till their death; Sri B.L. Narayana Rao had relinquished his right over the suit schedule property during his life time in favour of the second defendant's son by receiving consideration of ' 50,000/-; since then, the second defendant was enjoying the suit schedule property by paying taxes to the Municipality; he had perfected his title by adverse possession; the second defendant had let out the suit schedule property to the family members of the first defendant in the year 1992; subsequently, in the year 1994, he had mortgaged the property to the first defendant's brother Sri Satrasala Subrahmanyam for ' 45,000/- in discharge of his debts; with a view to discharge the mortgage and other debts, the second defendant had not only sold the suit schedule property to the first defendant for ' 2,50,000/- under registered sale deed dated 20.12.1996, but had also delivered possession to the first defendant; the second defendant, and the other parties in O.S. No. 19 of 1995, had colluded to bring into existence the compromise decree dated 20.01.1997; as the first defendant was not a party to the Suit in O.S. No. 19 of 1995, the said decree was not binding on him; the first defendant was not even aware of the Suit in O.S. No. 19 of 1995; he is a bona fide purchaser of the suit schedule property for valuable consideration under registered sale deed dated 20.12.1996; and the sale deed dated 20.12.1996 executed in favour of the first defendant is not hit by Section 52 of the Act. In his additional written statement, the first defendant contended that the Suit itself was barred by limitation, and was beyond the pecuniary jurisdiction of the Court.

(3.) In his additional written statement the second defendant pleaded that, due to misunderstanding in the year 1981 between himself and his sister, partition was effected in which he was allotted house bearing Door No. 8/359 along with Ac. 3-00 of land; the said landed property was sold away by his father; his father bequeathed his property in favour of his son Jayasimha under a registered Will dated 11.02.1993; the Will came into force on the death of his father i.e., on 15.06.1993; the compromise decree was never acted upon as a substantial portion of the property was already alienated, by the second defendant and his father, much before the compromise decree; the plaintiffs were provided with substantial movable properties at the time of their marriage; by the date of filing of the Suit neither was any joint family property in existence nor were the plaintiffs in joint possession of any property.