BOGESWARA RAO P Vs. P VENKATA RAO DIED

JUDGEMENT

(1.) (At the stage Admission) Defendant No. 11 in O.S.No. 139 of 1961 on the file of the Court of II Additional Subordinate Judge, Vijayawada filed these two Letters Patent Appeals aggrieved by the judgment of a learned single judge of this Court in A.S.NOS. 1558 and 1569 of 1981.

(2.) The facts of the case, are that the plaintiffs 1 and 2 and defendants 2 and 3 are the sons of the first defendant. The plaintiffs filed the suit in O.S.No. 139 of 1961 for partition and separate possession of their 2/sth share in plaint 'A' and 'B' schedule properties and for mesne profits till recovery of possession. The said suit was dismissed by the Subordinate Judge, Vijayawada on 19-12-1963. Against the said judgment, the plaintiff referred A.S.No. 6 of 1965 to this Court. During the pendency of the appeal, the first defendant by a registered sale deed dated 4-7-1964 alienated plaint 'A' schedule property in favour of the appellant herein. The first defendant died on 27-11-1964. Thereafter, the appellant herein filed CM.P.No. 11837 of 1968 in A.S.No. 6 of 1965 for impleading him as a party in the appeal. This Court heard the C.M.P. and the appeal and set aside the judgment and decree of the lower Court and decreed the suit holding that the plaintiffs 1 and 2 and defendants 1 to 3 are entitled to one share each and ordered the impleading petition of the appellant herein and further observed that the appellant, being the alienee pendente lite, is bound by the judgment in A.S.No. 6 of 1965 and whatever his rights may be, he is entitled to enforce them in proper proceedings. The matter was carried to the Supreme Court of India in Civil Appeal No. 1847 of 1990 and the Supreme Court dismissed the appeal directing the trial Court to inquire and investigate the rights and equities of the appellant herein in final decree proceedings. The trial Court allowed the petitions filed by the plaintiffs for passing final decree and for determination of mesne profits holding that the appellant herein is not entitled to any share in the property and reimbursement of the mortgage amount. Against the said order in the petitions, the appellant herein filed A.S.NOS. 1558 and 1569 of 1981 in this Court. A learned single Judge of this Court set aside the decree passed by the lower Court holding that the appellant is entitled to 1/5 th share in plaint 'A' schedule property and to divide the rest of plaint 'A' schedule property and plaint 'B' schedule property among the other sharers. Against the said judgment, the present appeals.

(3.) The learned Counsel for the appellant contended that the appellant purchased the entire plaint 'A' schedule property, which is a joint family property, and that the appellant being the purchaser enters into the shoes of the first defendant and is therefore entitled to the share allotted to the first. defendant. He further contended that the learned single Judge erred in allotting 1/5 th share in plaint 'A' schedule property instead of 1/3 rd share to the. appellant.