RAMGOPAL PATWARI Vs. BHARATILAL PATWARI (DIED)

JUDGEMENT

(1.) The revision petitioner Ram Gopal Patwari S/o. Mohan Lal Patwari is no other than sole defendant of O.S.No.516 of 2006 on the file of XIV Additional Chief Judge, City Civil Court, Hyderabad. It is the suit filed against him by his brother Bharatlal Patwari since died represented by his LRs i.e., plaintiff Nos.2 to 7 viz., wife, 4 sons and married daughter. It is the suit for partition and separate possession of jointly purchased property in plot No.87/B, survey No.403 (old 120/12) covered by municipal Nos.8-2- 120/115/14, Shaikpet Village, Jubliee Hills, Hyderabad under registered document No.71/81 dated 12.01.1981 admeasuring 1611 square yards bounded by North: land of Sri V. Narayan Das, West : open land plot No.86 and East and South road. The plaint averments show in nutshell that 1st plaintiff supra and sole defendant purchased the property supra for consideration on 12.01.1981 and rectification deed No.388/20.02.1981 of Sub Registrar Khairthabad, Hyderabad, rectify the extent of land since wrongly mentioned in the original document No.71/12-1-81 and after purchase while they are in joint peaceful possession and enjoyment, as plaintiff had to frequently for his business purposes stay at Tamilnadu and defendant used to maintain the accounts including profits in the affairs of the suit property and to settle the same including for amicable mutual partition and accounting of profits; the plaintiff despite demanding the defendant, for his half share in the property, defendant is prolonging on one pretext or the other with delaying tactics in dubious mode, plaintiff cause issued telephonic notice dated 22.09.2006 and also sent by registered post acknowledgement due on 27.09.2006, reiterating the demands that was received by the defendant and replied on 30.09.2006 with untenable grounds while admitting the joint purchase of the property under the document supra. The plaintiff cause issued rejoinder by clarification for said notice and reply on 10.10.2006, denying the reply for there is no family partition as alleged in the reply and to send any documents in proof if at all for which no documents or proof received. It is since making a false claim and by setting up the exclusive rights by the defendant over the property including in the caveat lodged and since trying to demolish the structures and make constructions of the commercial complex including by covering the plot of his 2 sons, which he cannot, particularly in relation to the suit property which is still joint of defendant and 1st plaintiff for not entitled to exclusively deal with, the plaintiff with no option is constrained to file the suit from the cause of action for the suit reliefs by valuing as per the Sub Registrar basic value for the property mentioned Rs.8,10,25,000.00 in seeking partition preliminary decree and separate possession after division by demarcation of the half share.

(2.) The written statement filed by the defendant against said suit claim is while denying the plaint averments with contentions of suit claim is barred by limitation and there was oral family partition in the year, 1982 in the lifetime of father of 1st plaintiff and defendant allotting the plaintiff's half share in favour of the defendant by making sole owner for entire suit property covered by registered sale deed No.71/12-1-81 and defendant obtained relaxation for construction of building vide G.O.Ms. No.260 (MA) dated 201983 and the municipal permission No.67/73 dated 11.01.1985 and the oral partition of 1982 reduced to writing on 21.11.1985 describing as release deed as per earlier oral partition and defendant having constructed house in the suit plot performed gruhapravesham on 28.11.1987 and the photos and videos evidence presence of plaintiff, the defendant's eldest son Sanjay Patwari's marriage was also performed in that constructed house in the suit plot on 15.01989 and plaintiff attended the same with family members also evidenced by photo and vediographs which all establish exclusion of plaintiff from any right or enjoyment over suit property for the past 12 years to the date of suit. It is also contended in the written statement that plaintiff has no cause of action and the suit claim is barred by law and it is not properly valued and Court fees not properly paid, the plaint is thereby liable to be rejected otherwise. It is also contended that as on the date of suit filed in 2006, the defendant already constructed commercial complex on the 2 plots of 2480 square yards which include the suit plot ad-measuring 1111 square yards out of 1611 square yards for remaining 500 square yards was acquired by the GHMC for road widening and the remaining 1369 square yards is the adjacent plot to the suit plot that belongs to the defendant's sons and Advocate Commissioner's report dated 18.12006 also substantiates the same of the building in the suit plot and the caveat also refers the same and the value made is as if open plot, whereas it is a commercial plot with constructions by the date of suit after demolishing old residential house in the year 2003 itself. It is also contested saying plaintiff is elder to the defendant being the 2 brothers and defendant purchased the suit plot out of his own earnings and got the registered sale deed in joint names bearing No.71/12-1-81 and in the lifetime of their father which was in the year, 1982 itself there was oral partition and the entire suit plot thereunder allotted to the defendant and thereby original title deed and rectification deed are in the custody of the defendant to the knowledge of plaintiff as link documents for the oral partition and defendant in the year 1983 obtained construction relaxation by G.O.Ms. No.260 supra on condition of leaving the land required for widening of Banjara Hills road No.2 and on 11.01.1985 permission for construction of the residential building No.67/73 dated 11.01.1985 obtained as per G.O. supra by payment of the amount exclusively by the defendant having surrendered 500 square yards of the land in the suit plot for road widening and having constructed the residential building No.1985-87 with own earnings and on 21.11.1985 it was reduced to writing of the oral partition by referring a release deed pursuant to the earlier oral partition supra and gruhapravesham was performed in Nov. 1987 by the defendant therein and having lived for 15 years till 2003 with evidence of wealth tax assessment order 1986-87 and 1987-88 in 1989 for the schedule property showing in the defendant's account and in the year 1994 GHMC addressed notice for the property tax for the house in the suit site and there was also additional LPG cylinder with that address obtained by the defendant in the year, 1997 and water charges demanded from defendant for the house in the suit site in the year, 1997 and telephone and electricity bills also issued in the year, 1997 and the Secunderabad Club also issued bill with that address in the year, 1997 apart from letter received from Ramkarandas Jawalasahai, Delhi in the year 1997. Further in the year 2003, the defendant obtained permission to construct multistoried commercial complex in the remaining suit site and adjacent suit site of his sons and IT return of the year, 2004 for the assessment year 2005-06 shows the residential converted into commercial complex by development agreement with Mr. Zulfi Ravdjee by obtained bank loan; all establish the suit claim as false.

(3.) The additional written statement of the defendant to the amended plaint is also with same version saying the plaintiff's application in I.A. No.4018 of 2006 for interim relief that was obtained, the defendant filed CMA. No.1061 of 2006 in High Court where while setting aside the injunction orders it was observed that plaintiff is resident of Chennai and according to the defendant, plaintiff given up all his claims and defendant is in possession all along and also referred to the municipal permission, development agreement showing not entitled to injunction. The additional written statement further speaks that one of the other brothers of plaintiff and defendant late Sri Iswarlal Patwari and his family resides at Bombay. It is after the brothers separated in the year, 1989 by family settlement in sharing the properties for the 3 branches; plaintiff resides at Chennai, defendant at Hyderabad and the other brother's branch at Bombay. Said Iswarlal Patwari and his son Sushil Kumar Patwari also filed O.S.No.460 of 2007 on the file of III Additional Chief Judge, City Civil Court, Hyderabad for possession of suit property with other reliefs, which is part of the property that was given for development with this suit property to one Zulfi Ravdjee of Hyderabad supra who was also impleaded as one of the defendants to that suit and against the interim applications in I.A.Nos.3115 & 3849 of 2007, CMA.Nos.933 & 934 of 2007 were filed in High Court covered by common order dated 21.08.2008 against which said plaintiffs Iswarlal Patwari and his son Sushil Kumar Patwari of O.S.No.460 of 2007 filed civil appeal Nos.7181 & 7182 of 2010 in Supreme Court and on 28.04.2010 the Supreme Court by considering the disputes among the parties who are the brothers appointed Honourable Sri Justice M. Jagannadha Rao, Former Judge of Supreme Court to mediate the matter and try to resolve the disputes between the parties and plaintiffs are called as Chennai Group who participated in the mediation at free will and Iswarlal since died his LRs were brought on record in the civil appeals before the Supreme Court and during pendency of the appeals before the Supreme Court in relation to the suit lis of O.S.No.460 of 2007 and the present suit lis of O.S.No.516 of 2006 Justice Jagannadha Rao called on 3 branches and also the developer Zulfi for mediation and on 21.07.2010 a memo of understanding was executed between late Iswarlal's family branch, plaintiffs' family branch and the defendant's family and the same was signed by 1st plaintiff in the suit and Ravi Patwari one of his sons, for themselves and on behalf of other members of the family and in the mediation proceedings they represented through Sri N. Naveen Kumar Advocate Hyderabad in arriving a compromise/settlement of all disputes between the 3 branches, that Sri Justice Jagannadha Rao submitted his report to the Supreme Court and pursuant to it the Honourable Supreme Court on 30.08.2010 passed order accepting the MOU and the recommendations by the Honourable Mediator, and directed all parties to act as per the terms agreed before the Honourable Mediator in terms of the said MOU. Said MOU clause (5) which is signed on 25.07.2010 by the defendant, 1st plaintiff since died and Ravi Patwari and on behalf of Ganesh, Mahesh, Naresh, Kesav Patwari in the presence of their common advocate Sri Naveen Kumar where-under the defendant has to pay Rs.5 crores to plaintiff's branch and plaintiffs have to transfer the shares held by them in M/s. Telangana Spinning & Weaving Mills Limited which is now named as M/s. Starlite Global Enterprises (India) Limited in favour of the Hyderabad Branch along with affirmation of pre-existing title of the Hyderabad branch in respect of the suit schedule property.