DAKARAPU LAKSHMANA SWAMY Vs. MADDULA NARASIMHA RAO

JUDGEMENT

(1.) This appeal is filed by the 1st defendant in O.S.No.138 of 1988 on the file of the Principal Senior Civil Judge, Eluru, having been aggrieved by the judgment and decree dated 02.03.1998 in said suit filed by the respondent Nos.1 to 3 herein as plaintiff Nos.1 to 3 against him and their father Maddula Gangaraju-2nd defendant to the suit who is no other than 4th respondent to the appeal since died pending appeal and his other legal heirs(besides R.1 to R.3(plaintiffs) on record not claimed so) brought on record as R.5 to R.9 of the appeal by order dated 23.07.2012 in A.S.M.P.No.2400 of 2006. 1(a). In fact, as per the decision in Kotha Seshamma Vs. Pittela Venkayya, 1957 AIR(AP) 386 after born sons also got right by birth in the joint family property, even to challenge the alienation made by father or other manager as improper to seek for setting aside. Here, the claim of plaintiffs (the benefit of which the respondents 5 to 8 also entitled) is in the joint family property to question the alienation made by their father-2nd defendant under Ex.B.2 to 1st defendant after Ex.A.1 relinquishment deed and as such there is a conflict of interest between them and 2nd defendant, to say they cannot be legal representatives of 2nd defendant, but for necessary parties to the appeal along with plaintiffs(respondents 1 to 3) to have benefit of suit and it is only the 1st defendant, that is assignee under Order 22 Rule 10 of CPC of the rights 2nd defendant under Ex.B.2 sale agreement. The suit filed by the three plaintiffs dated 11.01.1987 was for possession of plaint A-schedule property of the Ac.5-35 cents with past and future profits against the two defendants by claiming they got only plaint B-schedule movables exempt from consideration of means as indigent persons pursuant to the permission accorded by order of the trial Court in pauper O.P.No.66 of 1987.

(2.) Before coming to the grounds of appeal attacking legality and correctness of said decree and judgment allowing the suit claim by the trial Court and what are the points that required for determination on being formulated from rival contentions in this first appeal and its scope, for better appreciation, the factual matrix of the case before trial Court is the following:-

(3.) (a). It is said findings of the trial Court impugned in the appeal filed by 1st defendant on as many as 15 grounds with the sum and substance that, the trial Court's judgment and decree are contrary to law and weight of evidence, that 1st defendant is in possession of the property under an agreement of sale and entitled to protection under Section 53-A of Transfer of Property Act, that trial Court ought to have seen that plaintiffs have no title to claim recovery of possession from 1st defendant, that and the suit is a collusive one at the instance of the father, between father and sons(2nd defendant and plaintiffs), that trial Court failed to appreciate the evidence on Ex.A.1 is a sham and nominal document and also failed to see that 2nd defendant dealt with the property as that of his own even after execution of Ex.A.1 document, that the trial Court should have gone into genuineness of Ex.A.1 and failed to appreciate the proposition laid down in Thanubuddi Venkatappareddi and Rangabadi, and thereby sought for setting aside the decree and judgment of trial Court dismissing the plaintiffs' suit claim. In the Course of hearing the learned counsel for the appellants reiterated said contentions raised in the grounds of appeal attacking the correctness of trial Court's decree and judgment in seeking to set aside the same.