GANGINENI DAMODAR NAIDU Vs. KURAPATI KONDAIAH NAIDU

JUDGEMENT

(1.) Defendants in O.S.No.12 of 1990, on the file of.fhe Senior Civil Judge, Kavali, filed this Second Appeal, aggrieved by the judgment and decree dated 20-05-2003 rendered by the Court of IV Additional District Judge, Nellore, in A.S.No. 10 of 1999. The respondent filed the suit for the relief of declaration of his title over the suit schedule property, comprising of three items of agricultural lands, and for consequential injunction against the appellants herein, from interfering with his possession and enjoyment. The case of the respondent herein, as presented in the plaint, is, as under: Respondent, his brother - Malakondaiah Naidu, and their father Seshaiah Naidu constituted a joint family. It possessed of several items of agricultural lands, and other properties. A partition took place in the year 1980, in the presence of well-wishers and close relations. The plaint schedule property and a cattle shed, fell to the share of the respondent. About 13 acres of wet land and 20 acres of dry land fell to the share of his brother, in the partition. The father was also allotted some items of property. Ever since the date of partition, they are in exclusive possession and enjoyment of their respective shares.

(2.) The 1st appellant is the transferee of a decree in O.S.No.32 of 1972 on the file ot the Senior Civil Judge, Kavali, in which, the elder brother of the respondent figured as the sole judgment-debtor. The suit schedule property was sought to be proceeded against, in E.P.No.12 of 1984. Respondent filed E.A.No.173 of 1985, under Rule 58 of Order 21 C.P.C., and, since the sale of the property was held, by the time the application was filed, he had to file the present suit, for the relief, referred to above.

(3.) The 1st appellant filed a written-statement and the same was adopted by the 2nd appellant. The plea of the respondent, that a family partition tood place in the year 1980 was denied. It was asserted that the suit schedule lands are the exclusive property of the judgment-debtor, i.e. Malakondaiah Naidu. It was alleged that one Syama Sundara Naidu obtained decree in O.S.No.32 of 1972 against Malakondaiah Naidu, on 06-11-1973, and after making some efforts, to execute the decree, he transferred it, in favour of the 1st appellant. The sale of tine property was said to have been held, on 23-04-1985, and that it was confirmed on 05-06-1987. E.A.No.501 of 1987, filed for delivery of possession; was pending, by the time the suit was filed. It was pleaded that the suit was filed in collusion with the judgment-debtor. The trial Court dismissed the suit, through judgment dated 23- 06-1998. A.S.No.10 of 1999 preferred by the respondent, was allowed. Hence, this Second Appeal.