EPURI KOTAIAH Vs. EPURI RAMAIAH

JUDGEMENT

(1.) The unsuccessful plaintiff is the appellant who filed the appeal against the judgment and decree dated 10-2-1992 passed by the learned II Additional Subordinate Judge, Vijayawada in O.S. No. 192 of 1983. He filed the suit for recovery of possession of the plaint schedule property or in the alternative for recovery of the value of Rs. 68,200.00 with profits.

(2.) The facts lie in a narrow compass: The plaintiff and the 1st defendant are the brothers. Defendants 2 and 3 are the sons of the 1st defendant. The plaintiff, 1st defendant, their another brother by name Epuri Yesu and their mother Sheshamma partitioned their family properties in the year 1952 under a registered partition deed dated 23-7-1952. The properties covered by 'C and 'A' schedules of the said partition deed fell to the shares of the plaintiff and the 1st defendant respectively. The fourth item of the 'C' schedule is popularly known as "Komati Venkaiah Gadda" covered by R.S.No. 22/2 measuring Ac. 0-72 cents. It is the case of the plaintiff that even after the partition, since the plaintiff was working in I.L.T.D. all the properties used to be managed by the 1st defendant. They both together acquired some other properties jointly. In the year 1966, there was again a partition of the subsequent acquisitions in between the plaintiff and the first defendant under a registered partition deed dated 9-8-1966 and shown as 'B' and 'A' schedules as having fallen to the shares of plaintiff and the first defendant respectively. However, the 1st defendant surreptitiously had shown Ac. 0-72 cents of land covered by R.S. No. 22/2, the fourth item of 'C' schedule of the first partition deed as item No. 1 of the 'B' schedule of the second partition deed again as having fallen to his share. The land covered by R.S.No. 466/4 was shown as Ac. 1-25 cents, although the property purchased was only in an extent of 1-00 acre known as "Polimera". Thus a fictitious extent of Ac. 0-25 cents in excess was shown as allotted to the share of the plaintiff. The plaintiff was informed by the 1st defendant that an equal share and adequate provision was made in the said partition. However, the plaintiff could discover in the month of September 1982, the fraud that was played upon him by the 1st defendant by taking away the AC. 0-72 cents of land covered by R.S.No. 22/2 which was originally allotted to the plaintiff in the first partition and showing an excess of Ac. 0-25 cents of land covered by R.S.No. 466/4, thereby depriving the plaintiff to an extent of Ac. 0-97 cents of land. When the plaintiff demanded for readjustment repeatedly, the 1st respondent did not agree and therefore, the plaintiff got a registered notice dated 18-10-1982 issued to the defendants and in reply thereto the defendants got a notice dated 2-11-1982 issued to the plaintiff with all false allegations. Hence the suit.

(3.) The defendants resisted the suit by filing a written statement by the 1st defendant, which was adopted by defendants 2 and 3. The case of the defendants inter alia in the written statement was that after the first partition in the year 1952, the plaintiff himself was managing the properties fell to his share and subsequent to the said partition, the plaintiff and the 1st defendant jointly purchased an extent of Ac. 43-02 cents of land under various sale deeds. Apart from that, the 1st defendant himself separately purchased an extent of Ac. 0-90 cents of land covered by S.No.118/3 which was his self-acquired property. There was a partition of the subsequent acquisition in the year 1966 in between the plaintiff and the 1st defendant. In the said partition item No. 1 measuring Ac. 0-72 cents covered by R.S.No. 22/2 was included with the knowledge and consent of the plaintiff and the defendant and it was agreed to allot it to the share of the 1st defendant as a measure of convenience inasmuch as the said land was adjacent to the land of the defendant covered by R.S. No. 22/1 in an extent of one acre. Similarly, an extent of Ac. 0-68 cents in R.S.No. 87/2 was allotted to the plaintiff, which is adjacent to the land covered by R.S.No.82/1 in an extent of Ac. 2-06 cents as a measure of convenience. The land in an extent Ac. 1-38 cents covered by R.S.No. 118/3 was assigned to the 1st defendant by the Government and he used to enjoy the same separately to the exclusion of all other members of the family. However, that was the subject matter of partition in the year 1952 due to mistake and without the knowledge of the parties. In the second partition all these things were discussed and both the parties settled the matter in the presence of the elders and whole-heartedly divided the properties. The land covered by R.S.No. 466/4 is only an extent of 1-00 acre as purchased by the plaintiff and 1st defendant together and that was only available for partition. However, the scribe of the document due to mistake mentioned it as Ac. 1-25 cents without the knowledge of the parties. It was agreed between the parties that the one acre of land which was available for partition should be allotted to the plaintiff's share. Thus a total extent of Ac. 7-30 cents which was allotted to the plaintiff's share taking into consideration the fertility, the value, the situation and convenience of both the parties. An extent of Ac. 8-13 cents was allotted to the 1st defendant's share including his self- acquired property of Ac. 0-99 cents and an extent of Ac. 0-15 cents covered by R.S. No. 119/2 and an extent of Ac. 0-18 cents covered by R.S.No. 115/2 which formed part of the irrigation canal bund. Therefore, those two extents were not in possession of the 1st defendant. Ultimately, the 1st defendant got only Ac. 6-21 cents. All these circumstances were discussed at the time of partition and since then the plaintiff and the 1st defendant have been enjoying their properties separately. No fraud or misrepresentation was played by the 1st defendant on the plaintiff Even otherwise since the defendants have been in continuous and uninterrupted possession of the disputed land, they acquired title and interest by adverse possession. The suit of the plaintiff was barred by limitation and therefore, liable to be dismissed.