SAKKI LAXMI Vs. GAINI GANGAMANI

JUDGEMENT

(1.) The revision petitioners, who are defendants 1 to 3, 5, and 6 in O.S. No. 281 of 2021, have filed this revision petition challenging the order dtd. 13/6/2024, passed in I.A. No. 1728 of 2021 in O.S. No. 281 of 2021 by the Principal Junior Civil Judge- cum-Judicial Magistrate of First Class, Nizamabad.

(2.) Briefly, the facts of the case are that the suit in O.S. No. 281 of 2021 has been instituted by the Respondents/Plaintiffs seeking partition and separate possession of joint family properties concerning the suit Schedule Properties detailed in Schedule A and B of the plaint. It has been stated that Begari Pochiga alias Begari Posheety, the father of Respondents/Plaintiffs Nos. 1 and 2, and Petitioners Nos. 4 and 5/Defendants Nos. 5 and 6, as well as the father-in-law of Petitioner No. 1/Defendant No. 1 and the paternal grandfather of Petitioners Nos. 2 and 3/Defendants Nos. 2 to 4, was the owner and possessor of the suit schedule properties described in Schedule A and B. The plaintiffs assert that following the death of Begari Posheety in 1998, Defendants Nos. 1 to 3, 5, and 6 managed to have the suit schedule properties mutated in their names by influencing the revenue authorities. The plaintiffs have presented the pahani records for specific periods as evidence of this claim. They argued that the plaintiffs and defendants have equal shares in the suit schedule properties and contend that mere entries in revenue records do not create any legal rights or titles. Furthermore, they allege that the Defendants had been providing paddy to the plaintiffs as per their respective shares. It is claimed that the suit schedule properties have not been legally partitioned among the plaintiffs and defendants. Although the plaintiffs reportedly demanded that the defendants divide the suit schedule properties into five equal parts, defendants Nos. 1 to 3, 5, and 6 allegedly avoided this on various pretexts. Finally, on 6/6/2021, when the plaintiffs made an oral demand for partition, the defendants refused and asserted that the properties had already been mutated in their names as their self-acquired properties. The plaintiffs claim that they only became aware of these mutation proceedings in April, 2021 and subsequently obtained certified copies from the office of the Tahsildar. The plaintiffs contend that the suit schedule properties constitute joint family properties and have not been legally partitioned. As such, the plaintiffs are entitled to a 2/5th share in the properties specified in Schedule A and B. They further contend that the suit is within the period of limitation, as the refusal to partition occurred on 6/6/2021, following their oral demand. According to the plaintiffs, the Court fee payable is Rs.200.00 under Sec. 34(2) of the Andhra Pradesh Court Fees and Suits Valuation Act, calculated based on their 2/5th share of the total value of the properties specified in Schedule A and B.

(3.) I.A. No. 1728 of 2021 in O.S. No. 281 of 2021 was filed by the petitioners/defendants under Order VII, Rule 11(a), (b), and (d) read with Sec. 151 of the CPC, seeking rejection of the plaint in O.S. No. 281 of 2021 due to lack of cause of action, undervaluation of the relief claimed and limitation. The main contention raised by the defendants is that the suit schedule properties became open for succession in 1998 upon the death of Begari Pochiga alias Begari Posheety. Since then, the plaintiffs have neither taken any steps to demand partition nor issued any legal or public notices concerning the properties. They have also not approached the Tahsildar or any other authority to record a Virasath for the suit schedule properties. After a lapse of 22 years, the plaintiffs have now filed a partition suit based on what the defendants claim is a fabricated cause of action. The defendants argued that since the plaintiffs have been out of possession of the suit schedule properties throughout this period, the suit raises the issue of whether a partition suit is maintainable and contend that it is barred by limitation under Order VII, Rule 11(d) of the CPC. Further, the defendants argued that the plaintiffs have failed to produce any material evidence demonstrating that, as of the date of filing, all parties were within the joint family nucleus or benefiting from the suit schedule properties. They submit that because the respondents have been out of possession of the suit schedule properties for 22 years, the court fee should be calculated under Sec. 34(1) of the APC and SV Act, rather than under Sec. 34(2) of the same Act, rendering the suit undervalued and therefore not maintainable.