ENNALA BALARAM Vs. E BALA KRISHNA

JUDGEMENT

(1.) This appeal is filed by defendants 1 to 5 and arises out of a suit O. S. No. 17 of 1961 filed by the Respondents in the Court of the Chief Judge, City Civil Court, Hyderabad, at Secunderabad, under the following circumstances : The relationship between the parties is shown in the pedigree given here below: <IMG>JUDGEMENT_35_ANDHWR1_1970Image1.jpg</IMG>

(2.) There are three brothers Ennala Balaram, Ennals Ramadas and Ennala Narayanadas. Balaram (first defendant) has four sons, Rangadass, Ram Bhushan, Ram Mohan and Ramachandran (defendants 2 to 5). Ramadas has two sons, Balakrishna and Prahlad (Plaintiffs 1 and 2). Narayanadas has an only son by name Bhagwandas. They were members of a Hindu joint family who owned considerable properties. Nayanadas and his son Bhagwandas filed a suit O. S. No. 24 of 1943 in the Court of the District Judge, Secunderabad for partition of the Joint family properties impleading the present defendants 1 to 5 as defendants 1 to 5 therein and the present plaintiffs 1 and 2 as defendants 6 and 7. All the properties described in the schedules attached to the plaint in the said suit were situate in Secunderabad, except Item 14 of the plaint A Schedule there in an extent of A-c. 34-00 of vacant land which was situate in the limits of Hyderabad The plaintiffs therein claimed all the properties including the said item 14 as the joint family properties while the present plaintiff No.1 as 6th defendant there in filed a written statement contending that the said property described as Item 14 of the plaint A Schedule in the said suit was not the joint family property but that it was, his own separate property purchased by his father in his name. In view of the close relationship between the parties, the said suit ended in a compromise on the intervention of mediators. A compromise petition dated 28th January, 1946, marked as Exhibit B-7 in this suit was filed in and by which the present plaintiff as defendants 6 and 7 gave up their individual claims to item 14 mentioned above and agreed to treat the property as the joint family property. In the scheme of partition envisaged in the compromise, all the properties including the said Item 14 were allotted to the first defendant Balaram on condition of paying (H. S.) Rs.1,75,000 to the plaintiffs and (H.S.) Rs. 87,500 to each of defendants 6 & 7 in four equal instalments. The compromise petition was signed on behalf of the present first plaintiff who was then a major by his general power of Attorney and on behalf of his younger brother, the second plaintiff herein, the guardian ad litem signed in the compromise. In pursuance of the said compromise.a preliminary decree was passed on 31st January, 1946 which is filed as Exhibit A-5 in this suit.

(3.) Subsequently the first defendant paid the monies to the present plaintiffs as stipulated in the said compromise and continued to be in possession of the properties. With respect to the said property described as Item 14 in the previous suit of which the first defendant took possession there was disturbance at the instance of a third party by name K. Lakshminarayana, resulting in proceedings under section 145, Criminal Procedure Code. As the first defendant's possession was upheld, a suit was filed by the third party Lakshminarayana, O. S. No. 401 of 1956 in the Court of the Second Additional Judge, City Civil Court, Hyderabad to establish his claim to the said property. The present first defendant who was originally impleadcd as the sole defendant in the suit, filed a written statement contending inter alia that the property was allotted to him by virtue of the compromise decree in O. S. No. 24 of 1943 and that he is entitled to the same. Subsequently, the present fit st plaintiff was impleaded as a party in the suit by the said Lakshminarayana. Thereafter the plaintiffs filed the present suit on and March, 1961 for a declaration that the property which was item 14 of the plaint A Schedule in the earlier partition suit O. S. No. 24 of 1943, belongs to them absolutely and for a peramnent injunction restraining the defendants frcm interfering with their possession, or in the alternative, for recovery of possession if it is found that they are not in possession. The main allegations in the present plaint are that in the previous compromise partition decree, the present suit property was included only nominally as if it was joint family property, that in any event the District Court at Secunderabad, which was part of British India, had no jurisdiction to deal with the property described in Item 14 of the A Schedule therein as it was situate in the Nizam's dominions, that the said decree is therefore a nullity that the first defendant did not obtain any registered relinquishmcnt deed with respect to the said property from these plaintiffs and that title to the property remained with the plaintiffs. It was further alleged that the suit was filed only when the first plaintiff came to know about the first defendant's assertion of his title as per the compromise decree in the written statement filed by him in the suit O. S. No. 401 of 1958 in which the first plaintiff was impleaded as a party-defendant.