RAMJI PATEL Vs. IRUKULLA NARENDER

JUDGEMENT

(1.) This is a typical unfortunate long drawn litigation wherein the successful plaintiff Irukulla Narender, 1st respondent in this Appeal, petitioner in I.A.No.592/85 in O.S.No.7/71 on the file of District Judge, Warangal is unable to obtain a final decree in pursuance of the preliminary decree.

(2.) Heard Sri Ganshyam Das Mandani, Counsel representing the appellants and Sri Vilas Afzulpurkar and Sri Bhanu Prasad, Counsel representing the 1st respondent/ petitioner/plaintiff.

(3.) The facts in nut-shell are has hereunder: The present Appeal is preferred by the appellants/defendants 2 and 3 in the suit, aggrieved by an order dated 5-12-2003 made in I.A.No.592/85 in O.S.No.7/71 on the file of District Judge, Warangal. The parties herein would be referred to as plaintiff, 1st defendant, 2nd defendant and 3rd defendant, who are appellants herein, for the purpose of convenience. The plaintiff filed a suit for partition and separate possession on 9-8-1971 for his 3/4th share as heir of Irukulla Shankaraiah who died on 3-10-1969 claiming to be the adopted son. The 1st defendant entered into an agreement of sale relating to item No.2 of the plaint A schedule on 3-6-1971 and it is stated that no sale deed had been obtained by defendants 2 and 3/appellants herein, till now. There appears to be no controversy between defendants 1, 2 and 3 in respect of the agreement of sale. Defendants 2 and 3 filed written statement pleading about the agreement of sale referred to supra and also for working out equities, but however remained exparte. Initially, the suit was dismissed on 18-9-1976 but the same was reversed by this Court in A.S.No. 148/77 wherein defendants 2 and 3 also were parties who did not contest the matter at least raising the ground of equity. The 1st defendant carried the matter to the Apex Court in C.A.No.4208/86 and in the said Civil Appeal in view of the pitiable condition of the 1st defendant, the plaintiff had abandoned all claims relating to movables and mesne profits and thus the right of the plaintiff to have the relief of partition was upheld by the Apex Court by Judgment dated 10-11-1986. In pursuance of the same, the plaintiff moved an application I.A.No.592/85 in O.S.No.7/71 on the file of District Court, Warangal for passing of final decree. The plaintiff had examined himself as P.W.1 and on behalf of defendants 2 and 3, R.W.1 and R.W.2 were examined and Exs.B-1 to B-16 were marked. On 11-6-1987, an Advocate Commissioner was appointed to assess the valuation of the buildings and the same is as hereunder: <FRM>JUDGEMENT_165_ALT6_2004Html1.htm</FRM> On appreciation of the oral and documentary evidence, the learned District Judge at para-25 made the following order: