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1 O.S.No. 127/2010 dt.

18-7-2016

IN THE COURT OF THE PRINCIPAL SENIOR CIVIL JUDGE, NELLORE

Monday, the Eighteenth(18th) day of July, 2016.

Present:- Sri T.V.Subba Rao,


Principal Senior Civil Judge,
Nellore

Original Suit No. 127/2010

Kolluru Arunamma … Plaintiff.

Vs.

1. Podili Radhakrishnaiah
2. Podili Amarnadh
3. Momidi Sreenivasulu
4. Thatiparthi Gopala Krishnaiah
5. Momidi Masthanamma
6. Cherukupalli Mallikarjuna ... Defendants

This suit coming on 8-7-2016 before me for final hearing in the


presence of Sri V. Sankar Narayana, Advocate for the Plaintiff and of
Sri T.Srihari, Advocate for D-1 and D-2; and D-3 to D-6 having remained
exparte and arguments of both side counsels were treated as heard and
having stood over for consideration till this day, this court delivered the
following:-
JUDGMENT

This suit is filed by the plaintiff against the defendants for partition

praying the court to direct the defendants 1 and 2 to divide the plaint

schedule two items of properties into 3 equal shares and to allot 1/3rd

share to the plaintiff within the time fixed by the court and for mesne profits

by passing Preliminary decree.

2. The case of the plaintiff as per the plaint averments is as

follows:

(I) The plaintiff and defendants 1 and 2 are the members of


2 O.S.No. 127/2010 dt. 18-7-2016

undivided joint family for which, the 1 st defendant has been acting as

Kartha with the incomes derived from the 1 st item of the plaint schedule

property. The 1st defendant purchased the 2nd item of property in his name

from kadiveti Purushotham bearing document No.825/1967 for the benefit

of joint family and has been managing after the death of 1 st defendant's

father. Thus, both the items of plaint schedule property belongs to joint

family, for which, the plaintiff and defendants 1 and 2 are equally entitled.

Except the incomes derived from the plaint schedule properties, there is no

other incomes for the joint family.

(ii) It is further stated that in the year 1990 her marriage was

performed and at the time of marriage, D-1 orally promissed that he will

give the shares in the entire joint family properties within one or two years

and as such, no amounts or not articles were presented to her and the

marriage alone was performed by D-1 nominally below Rs.10,000/-.

(iii) It is further stated that as D-1 and D-2 continuously postponing the

settlement of the share of plaintiff, the plaintiff along with her husband in

the month of July, 2009 demanded the defendants 1 and 2 to settle her

1/3rd share. For which, the defendants 1 and 2 told that the 1 st item of

property was already sold to defendants 3 to 5 and mother of D-6 in

separately and the 2nd item of property was already settled in favour of 2 nd

defendant and that the plaintiff has no share at all . Then, the plaintiff and

her husband came to know that as long back as in the year 1998 itself, 1 st

item was sold to defendants 3 to 5 and mother of defendant No.6 and 2 nd

item was settled recently on 4-5-2009 in favour of 2 nd defendant by 1st

defendant.
3 O.S.No. 127/2010 dt. 18-7-2016

(iv) It is further stated that all the defendants colluded with each

other and appropriated the entire joint family properties with a view to

evade the legitimate share of the plaintiff. The defendants 3 to 6 are not the

bonafide purchasers who have not made any formal enquiries before their

purchase of 1st item of plaint schedule property. Hence, all the alienations

made by 1st defendant more than his share is not binding on the plaintiff

and hence, she need not sought for the relief of their cancellation. D-1 is

not entitled to make those alienations. D-1 and D-2 have pretended that

they are enjoying the plaint schedule properties and as such, postponing

the partition. The plaintiff came to know the mis-deeds of the defendants in

the month of July, 2009.

(v) It is further stated that by birth itself, the plaintiff has very poor ,

eye sight for left eye and that an operation was conducted by Aravind

Nethralayam at Madurai for her left eye and that the child welfare and

labour department have issued Medical Certificate on 28-4-2009 through

District Head quarters hospital, Nellore mentioning that there is 100% blind

to plaintiff's eye sight. Taking advantage and innocent of plaintiff, D-1

colluded with other defendants did all the above misdeeds against the

interest of plaintiff. AS such, D-3 to D-5 and mother of D-6 are not bonafide

purchasers and they purchased item No.1 of plaint schedule property with

the collusion of D-1. As the mother of D-6 died recently and hence D-6 was

added in the suit as her legal heir . Hence the suit.

3. D-3 to D-6 remained exparte.

4. (I) On appearance, the defendants 1 and 2 filed written

statement denying most of the plaint averments and contended inter alia

that the D-1 is professionally having “Sannayee Malem” and used to earn
4 O.S.No. 127/2010 dt. 18-7-2016

income out of his profession in and attending the marriage functions and

other functions and also having art of making statues of religious idols and

used to have income out of it. Thus, out of his self-earnings, he purchased

a land of Ac.0-50 cents from Podili Krishnamma under Registered Sale

deed dated 7-8-1996 and he sold the said property to Momidi

Masthanamma in the year 1998 which is his self-acquired property.

Similarly, D-1 has purchased an extent of ac.1-34 cents of land from

Kadivati Purushotham under registered sale deed dated 15-7-1967 which is

part of item No.2 of plaint schedule property . The wife of 1 st defendant

Podili Lakshmamma had purchased Ac.0-50 cents of property in item No.2

under Registered sale deed dated 10-7-1969 from Survepalli Venkata

Subbaiah and Mahadevaiah out of the Sridhanam given by her parents.

So, the 1st defendant and his wife which are their self-acquired properties

have settled in favour of 2nd defendant by way of two separate Registered

Settlement deeds dated 4-5-2009 . So D-2 is the absolute owner of the

Ac.1-84 cents which is originally owned and possessed by his father and

mother.

(ii) It is further stated that the plaintiff marriage was performed with

K.Venkateswarlu on 1-8-1990 and at the time of marriage, D-1 gave

Rs.10,000/- as dowry and also 20 sovereigns of gold and other articles.

Even after marriage, the husband of plaintiff was threatening the 1 st

defendant and sent out the plaintiff from the house to get more dowry and

property. So that the 1st defendant and his wife had given the house

property worth Rs.10,00,000/- situated at Nawabpet of Narukuru Road by

way of Settlement deed dated 13-6-1996. Now, the husband of the plaintiff

has not satisfied with those properties and harassing the plaintiff and got
5 O.S.No. 127/2010 dt. 18-7-2016

filed the suit with a malafide intention to have wrongful gain as if she got a

share in the property and this suit is engineered by her husband and it is

frivolous and vexatious one.

(iii) It is further stated that D-3 to D-6 have not purchased the

property from 1st defendant and they are unnecessarily impleaded as

parties in the suit. The husband of the plaintiff is trying to extract more

money from 1st defendant and got filed this suit with an ulterior motive and

there is no cause of action for filing the suit.

(iv) It is further stated that there is no joint family and joint

possession of the property between the plaintiff and defendants 1 and 2

and the court fee paid by the plaintiff is incorrect, as such, the plaintiff has

to pay Advolerum court fee . D-2 is in exclusive possession of item No.2 of

plaint schedule property and prays to dismiss the suit with costs.

5. Basing on the above pleadings, the court framed the following

issues:

1. Whether the plaintiff is entitled to 1/3rd share in suit property


and for the partition of the same?
2. To what relief?

6. During the course of trial, the husband of plaintiff was examined

as Pw.1 and Exs.A-1 to A-5 were got marked on behalf of the plaintiff. The

cross-examination of Pw.1 is treated as Nil by the defendant after giving

ample time and opportunity. No witnesses are examined and no documents

are marked on behalf of the defendant. After giving ample time and

opportunity, the defendant side evidence is closed and the defendant is not

evincing any any interest to let in either side evidence.

7. Heard the plaintiff counsel arguments and defendants


6 O.S.No. 127/2010 dt. 18-7-2016

arguments are treated as heard.

8. Pw.1 is the husband of plaintiff. Ex.A-1 is the True copy of No.3

Adangal dated 26-8-2009 issued by Deputy Tahsildar, Venkatachalam

Mandal for item No.1 of plaint schedule property. Ex.A-2 is the True copy

of No.3 Adangal dated 27-7-2009 issued by Tahsildar, Muthukur Mandal

for item No.2 of plaint schedule property. Ex.A-3 is the Encumbrance

Certificate for item No.1 of plaint schedule property. Ex.A-4 is the

Encumbrance Certificate for item No.2 of plaint schedule property and

Ex.A-5 is the Notarized copy of case record of plaintiff issued by Lalitha

Eye Hospital, Nellore dated 21-7-2006.

9. ISSUE NO.1 :

Pw.1 in his chief-examination on affidavit, reiterated the plaint

averments.

10. It is the case of the plaintiff that the plaintiff and defendants 1

and 2 are the Hindu joint family members and co-parceners . D-1

purchased item No.2 of the property on the income of Item No.1. Though,

the plaintiff demanded for partition, they did not divide it. Hence, the plaintiff

was constrained to file the suit for partition of her 1/3rd share.

11. Pw.1 who is the husband of plaintiff, reiterated the plaint

averments in his chief-examination on affidavit and his cross-examination

was treated as nil. No witness is examined and no documents are marked

on behalf fo the defendant. On this point , the relevant Judgment in a case

between Vidyadhara Rao //vs.// Manikya Reported in 1999(3) ALT

page No.1, wherein in it is held --

“Where a party to the suit does not appear into the


witness box and state his own case on oath and
does not offer himself to be cross-examined by
7 O.S.No. 127/2010 dt. 18-7-2016

the other side, a presumption would arise that the


case set up by him is incorrect”.

Further Sec.114 Illustration (g) of Indian evidence Act that “evidence

which could be and is not produced would if produced to be unfavourable

to the person who withhold it”.

12. As per the principal laid down by the Hon'ble Supreme Court of

India in the above referred Judgment, since the defendants did not turn up

into the witness box to state their own case on oath and did not offer

themselves to be cross-examined by the other side, a presumption would

arise that the pleas taken by them in the written statement are incorrect.

Accordingly, the case of plaintiff by relying upon the evidence of Pw.1 and

Exs.A-1 to A-5 can be relied upon. Accordingly, the plaintiff proved and

established that she is entitled for partition of plaint schedule property and

allotment of 1/3rd share to her as per law. The defendants failed to prove

contra to it.

13. In view of the above discussion, the plaint schedule property is

liable to be divided into three equal shares by metes and bounds and for

allotment of one such share to the plaintiff and one such share each to

defendants 1 and 2. The defendants are directed to divide the plaint

schedule property into three equal shares and allot one such share to the

plaintiff within two months from the date of decree and Judgment.

Issue No.1 is decided accordingly in favour of the plaintiff and

against the defendants.

14. ISSUE NO.2:

In the result, a preliminary decree is granted with costs ordering

division of plaint schedule property schedule properties into three equal


8 O.S.No. 127/2010 dt. 18-7-2016

shares by metes and bounds and to allot one such share to the plaintiff

within two months from the date of decree and Judgment. Failing which,

the plaintiff is at liberty to file an application at the appropriate time to pass

final decree. The plaintiff is at liberty to file separate application at the

appropriate time for granting of mesne profits over the plaint schedule

properties relating to her share.

Dictated to the Personal Assistant, after transcribed by her, corrected


and pronounced by me in Open Court, this the 18 th day of July, 2016.

PRINCIPAL SENIOR CIVIL JUDGE,


NELLORE

APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For Plaintiff:-

PW.1: K.Venkateswarlu(husband of plaintiff).

For Defendants: - None-

DOCUMENTS MARKED
For Plaintiff:-

Ex.A-1: True copy of No.3 Adangal dated 26-8-2009 issued by Deputy


Tahsildar, Venkatachalam Mandal for item No.1 of plaint schedule
property.
Ex.A-2: True copy of No.3 Adangal dated 27-7-2009 issued by Tahsildar,
Muthukur Mandal for item No.2 of plaint schedule property
Ex.A-3: Encumbrance Certificate for item No.1 of plaint schedule property.
Ex.A-4: Encumbrance Certificate for item No.2 of plaint schedule property.
Ex.A-5: Notarized copy of case record of plaintiff issued by Lalitha Eye
Hospital, Nellore dated 21-7-2006.

For Defendants: -NIL-

Principal Senior Civil Judge,


Nellore.
9 O.S.No. 127/2010 dt. 18-7-2016

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