NEELAM CHITTEMMA Vs. TIRLANGI APPA RAO

JUDGEMENT

(1.) This second appeal is preferred by the respondent Nos.7 and 9 to 11 challenging the decree and judgment dated 03.09.2004 passed in A.S.No.45 of 2002 on the file of the I Additional District Judge, West Godavari, Eluru, confirming the final decree and order dated 30.04.2001 passed in I.A.No.2754 of 1994 in O.S.No.475 of 1981 on the file of the Principal Junior Civil Judge, Eluru. The parties are hereinafter referred to as they are arrayed in the final decree proceedings, for the sake of convenience.

(2.) The case of the petitioner in I.A.No.2754 of 1994 filed for grant of final decree is as follows. He filed O.S.No.475 of 1981 against respondent Nos.1 to 4 for partition of the suit schedule property into two equal shares and allotment of one such share to him and for future profits. The first respondent is his father; second respondent is the purchaser of item No.1 and respondent Nos.3 and 4 are the purchasers of item No.2 of the suit schedule property. The suit was dismissed on 07.07.1983. Aggrieved thereby, the petitioner preferred A.S.No.109 of 1983 on the file of the Additional District Judge, Eluru. The appeal was allowed by decree and judgment dated 19.08.1986 and consequently the suit was decreed. Being not satisfied with the decree and judgment in A.S.No.109 of 1983, the second respondent preferred S.A.No.86 of 1987 whereas one P.Appalanarasamma, who is alienee of respondent Nos.3 & 4, preferred S.A.No.119 of 1987. During the pendency of those two second appeals, first respondent/first defendant died and respondent Nos.5 and 6 were brought on record as his legal representatives. Both the second appeals were dismissed by common judgment dated 18.02.1994. Thereby the preliminary decree granted in the suit filed by the petitioner for partition of Items 1 and 2 of suit schedule properties was affirmed. As a result, the petitioner is entitled to half of suit schedule properties and for future profits. The petitioner filed I.A.No.2754 of 1994 to appoint a Commissioner for partition of suit schedule properties into two equal shares, delivery of one such share to him and for passing final decree in terms of preliminary decree.

(3.) The second respondent filed counter inter alia contending that he purchased item-1 of suit schedule properties under registered sale deed dated 11.09.1955 for a valuable consideration of Rs.300/- from the first respondent and ever since, he has been in exclusive possession and enjoyment of the same by constructing a pucca house therein. The petitioner filed the suit in collusion with his father i.e., the first respondent to cause loss to the second respondent. Bona fides of second respondent in purchasing the item-1 of suit schedule property were upheld by the Court. In A.S.No.109 of 1983, the first appellate court while granting preliminary decree categorically mentioned to allot item-1 of suit schedule properties to the first respondent by working out equities. By the time of sale of item-1 in his favour, it is vacant site and of no value, and item-2 is house property and of more valuable. In view of the preliminary decree and as item-1 is indivisible, it may be allotted to the share of deceased of first respondent. The existing structures on item-1 were constructed by the second respondent. The petitioner is not entitled to make any claim against the second respondent. Hence the petition is liable to be dismissed.