P SATYANARAYANA Vs. P LAKSHMANASWAMY

JUDGEMENT

(1.) The unsuccessful plaintiff has preferred this appeal questioning the judgment and decree dated 30-6-1982 of the learned II Additional Subordinate Judge at Kakinada dismissing OS.No. 252 of 1978. The said suit was originally instituted on 12-6-1978 inO.P - No. 165 of 1978 seeking leave to sue as an in digent person. The O.P. was allowed on 8-11-1978 and the suit was numbered on 18-11-1978. Therefore, for limitation purposes the suit must be treated as laid on 12-6-1978 by the appellant herein.

(2.) The main reliefs sought in the suit are; (a) to grant possession of plaint 'A to C' schedule properties of the plaintiff and the second defendant after ejecting therefrom defendants 3 to 7; (b) to grant relief of accounting by defendants 3 to 7 to the plaintiff and the second defendant in respect of plaint 'A to C' schedule properties from 11-11-1963 till date of delivery of possession of the said properties to the plaintiff and the second defendant. The second defendant is the younger brother of the plaintiff. The first defendant was their father. He died in 1979. The plaintiff has also a sister by name Gopinandanamba. The case of the plaintiff is that he was born on 10-6-1957. During his and the second defendant's minority, as his father was addicted to bad ways, a registered partition deed was got executed on 11-11-1963 (Ex. A-2 is the registration extract of the said partition deed) whereunder plaint 'A to C' schedule properties fell to the joint share of the plaintiff and his brother, 2nd defendant. The debts owed by the joint family were allotted to the first defendant as he undertook to discharge them at the time of partition. The first defendant and Gopinandanamba were also allotted properties under Ex.A-2 partition, but that is not in issue in the present suit It is alleged in the plaint that defendants 3 and 4 trespassed into plaint 'A to C' schedule properties and had been in possession of the same ever since Ex. A-2 partition deed with the full knowledge that the said properties belonged to the plaintiff and the second defendant and, therefore they are liable to be evicted and they are also liable to account for the past profits from 11-11-1963. Defendant No. 4 was the natural brother of the first defendant and was given in adoption to Naganna, the paternal uncle of the first defendant. The plaintiff and the second defendant got issued registered notice, dated 28-6-1977 to their father and defendants 3 and 4 (Ex. A-3). The suit was originally against defendants 1 to 4: Subsequent to the filing of the suit, the plaintiff found that the 5th defendant got into possession of items 1,2 and 4 of plaint 'A' schedule properties; that the 6th defendant got into possession of item 3 of plaint 'A' schedule properties, and that the 7th defendant got into possession of items 1 and 2 of plaint 'B' schedule properties. Therefore, they were impleaded as per orders of the learned Subordinate Judge dated 26-9-1981 in I.A.No. 228 of 1981. Defendants 2 and 7 remained ex parte in the suit. Defendants 2 to 7 are respectively respondents 1 to 6 in the present appeal.

(3.) In his written statement, the third defendant denies that the first defendant was addicted to bad ways and because of that his joint family properties were partitioned under partition deed dated 11-11-1963, He also denies that he trespassed into the plaint 'A' schedule properties on 11-11-1963 and that he had full knowledge that the said properties were allotted to the plaintiff and his brother the 2nd defendant. He states that his father filed a suit for recovery of debt against the plaintiff and the first and second defendants and that the suit was decreed.against all of them, and that subsequently his father died and thereafter the first defendant his wife Lakshmi Tulasamma and his daughter Gopinandanamba and his sons-the plaintiff and the second defendant-represented by their mother as guardian sold under registered sale deed dated 7-6-1966 (the correct date is 7-2-1966 and the said document is marked as Ex. 13-1 in the suit) part of items 1 and 2 and item 4 of the plaint 'A' schedule properties to the third defendant and his minor four brothers represented by him as guardian. They also sold the remaining portion in items 1 and 2 of the plaint 'A' schedule under registered sale deed dated 29-9-1967 (marked as Ex. B-2) to the four minor brothers of the third defendant represented by him as guardian. He contends that the said sales were effected for family necessity and for the benefit of the minors. He further contends that he and his brothers are in possession of the said plaint 'A' schedule properties as rightful owners and not as trespassers. He also states that in the said sale deeds it was mentioned that the partition deed dated 11-11-1963 was only a nominal one and that the first defendant and his sons were continuing as joint family. The third defendant also disputes the age of the plaintiff and contends that by the date of the suit he was more than 21 years and that the suit was barred by time.