N SARASWATHAMMA Vs. T NARAYANA RAO

JUDGEMENT

(1.) The defendants are the appellants. This appeal arises out of asuit filed for Possession of the plaint schedule property after ejecting the defendant therefrom and for a mandatory injunction directing the defendant to remove the shed in the schedule site and for past and future profits. The averments in the plaint may be-stated.

(2.) The plaintiff is the owner of the suit schedule property and alsothe shop situated to the east of it and during his father's time the defendant's brother one Rangarao, took the shop bearing door No. 12/210 on lease. The said Rangarao obtained permission to construct a god own in the middle portion of the suit site with the express condition that it would be vacated as. and when required. In the partition between the plaintiff his father and brethers, the said sehedule property along with the shop bearing No. 12/210 fell to the share of the plaintiff. With the express permission of the sons of Rangarao, Jagapathi to whom the site is leased, removed the godown on the site and thereupon the defendant filed O.S. 210/66 on the file of the District Munsif's court, Gudivada, for permanent injunction against Jagapati and the same was decreed and an appeal against the same is pending. The defendant's brother Raggarao is only a licensee and the sons of Rangarao vacated, the premises and the plaintiff took possession of the same. After obtaining injunction in O.S. 210/66, the defendant constructed a pucca shed on the suit site and has been in occupation of the same. As Jagapathi did not pursue the matter diligently the present suit is filed. The solr defendant, who was impleaded initially died and his legal representatives D-2. to D-9 were brought on record.

(3.) The plea of defendants 2 to 4 is that the suit property fell to theshare of the plaintiff in partition, that Rangarao was the eldest of the three brothers consisting of himself and D-1 and one Venkateswara Rao and they. were members of thejoint Hindu family, than on behalf of the joint family the 1st defendant has taken the shop building and the entire vacant, site, behind the shop which is an annexure to the main shop, that on behalf of the joint family the 1st defendant himself has taken the shop and the site on lease and that in a partition between the defendant and his brothers the main shop fell to the share of Rangarao and the vacant site including the suit and the shed therein remained in possession of the 1st defendant and thus the 1st defendant has been in exclusive possession and enjoyment. It is also stated the 1st, defendant is not a tresspasser and the suit is barred under the provisions of the A.P.Buldings (Lease, Rent and Eviction) Control Act of, 1960.