Research › Search › Judgment

Andhra High Court · body

2006 DIGILAW 1236 (AP)

Sivareddi Subba Rao v. Sivareddy Ganemma

2006-10-10

P.S.NARAYANA

body2006
JUDGMENT :-Heard Sri M.N. Narasimha Reddy, the learned Counsel representing appellants and Sri K. Sarvabhouma Rao, the learned Counsel representing respondent. 2. This Court on 9-8-1996 made the following order :- "in view of the substantial questions of law raised in ground No.5, the second appeal is admitted." 3. The substantial questions of law raised in ground No.5 are as hereunder :- (1) Whether the suit is barred under Section 47 of C.P.C. in view of the earlier compromise decree in O.S. No.469/48? (2) Whether the defendants have not perfected their title by adverse possession, in view of the fact that the plaintiff failed to execute the decree in a.S.No.469/48 within 12 years and obtained possession of the suit property? 4. Sri MN. Narasimha Reddy, the learned Counsel representing the appellants would maintain that the remedy if any available to the respondent is only to put the compromise decree into execution and a separate suit for partition of this nature cannot be maintained. The learned Counsel also would maintain that without putting the decree into execution within time, the present suit for partition is thought of only to get over the period of limitation and hence both the Courts erred m decreeing the suit. 5. On the contrary, Sri K Sarvabhouma Rao, the learned Counsel representing the respondent would submit that the suit is filed for recovery of possession of a room r and vacant site appurtenant to it in the plaint schedule property virtually claiming the same as a share and further stating that the registered sale deed would not be binding on her. The Counsel also would submit that the prior suit was a suit for maintenance and a compromise decree was passed. The applicability or otherwise of Section 14(1) of the Hindu Succession Act 1956 can be gone into only in a regularly instituted suit and not in an application of this nature and hence the stand taken by the appellants relating to the applicability of Section 47 of C.P.C., cannot be a sustainable ground. 6. Heard the Counsel. 7. The unsuccessful defendants in both the Courts below had preferred the present second appeal. 6. Heard the Counsel. 7. The unsuccessful defendants in both the Courts below had preferred the present second appeal. Respondent herein/plaintiff in the suit instituted O.S. No.20/ 1983 on the file of Principal District Munsif, Kovvur praying for the reliefs referred to supra and the Court of first instance on the strength of the respective pleadings of the parties, having settled the issues, recorded the evidence of P.W.1, D. W.1 and D. W.2, marked EX.A.1 and EX.A.2 and ultimately decreed the suit granting a preliminary decree in favour of the plaintiff and against the defendants for partition and separate possession of one room and vacant site appurtenant to it. Aggrieved by the same, the defendants preferred A.S. No.39/89 on the file of Subordinate Judge, Kovvur, and the learned Judge having framed the points for consideration at Para 13, further proceeded to discuss all the aspects at Paras 14 to 20 and ultimately dismissed the appeal with costs. Aggrieved by the same, the present second appeal is preferred. 8. For the purpose of convenience, the parties hereinafter would be referred to as plaintiff and defendants. 9. It was pleaded in the plaint as hereunder : "The suit schedule property originally belonged to the joint family of plaintiffs husband late Sambayya and defendants 1 to 5. Sambayya died thirty years ago intestate leaving behind him the plaintiff to succeed his estate. The plaintiff filed O.S.No.469/48 against the defendants 1 to 5 for maintenance and it ultimately ended in a compromise. As per the compromise she was given an extent of Ac.0-97 cents of agricultural land in R.S.No.132 of Unagatla Village and a room and site for her residence, with a direction that she should enjoy that property for her life after her death it should revert to defendants 1 to 5. Since then she is in possession of the plaint schedule property. By virtue of Section 14 of Hindu Succession Act she became the absolute owner of the property given to her. In the meanwhile, defendants 1 to 5 sold away the suit schedule property to the 6th defendant under a registered sale deed dated 16-9-1980 ignoring the plaintiffs right. The said same sale deed is not binding on the plaintiff. After learning about the said sale transaction, she issued a notice dated 19-12-1980 to the defendants for which they gave a reply. The said same sale deed is not binding on the plaintiff. After learning about the said sale transaction, she issued a notice dated 19-12-1980 to the defendants for which they gave a reply. Hence, the suit for possession of the room and the vacant site which is shown in the plaint schedule." 10. The first defendant filed written statement virtually admitting the relationship between the parties and the compromise decree made in O.S. No.469/48. It was further pleaded that in or about January 1950 on behalf of the plaintiff her father and defendants 1 to 5 entered into an agreement before elders as per which the plaintiff was given Ac.0-97 cents in R.S. No.132 with limited rights. She was also given possession· of the property. With regard to the room and vacant site, the plaintiffs father and the plaintiff did not like to live in the house of the defendants and in view of that they wanted monies and the elders fixed an amount of Rs. 100/- in full settlement of the residence. The said amount was also paid to her. As such she is not entitled to claim any right on the basis of Section 14 of Hindu Succession Act over the suit property. She was not in possession of the house property as on the date of commencement of Hindu Succession Act. She does not get absolute right even on the agricultural land of Ac.0-97 cents given to her. The defendants 1 to 5 migrated to Vutlapali, hamlet of Aswaraopet, so they sold away their house and site to the sixth defendant for consideration on 19-6-1980. Recently the plaintiff appears to have put up her lands for sale and persons interested in the suit land got this frivolous suit filed through her as a counter-blast for the dispute raised by the defendants about that land. The defendants alone have been the continuous possession and enjoyment of the suit property in their own right for more than forty years and they perfected their title to it. The decree in O.S.No.469/48 became barred by time and the plaintiff cannot enforce it by filing the suit. The sixth defendant is a bona fide purchaser for value. 11. Defendants 2 to 6 filed a memo of adoption. 12. The decree in O.S.No.469/48 became barred by time and the plaintiff cannot enforce it by filing the suit. The sixth defendant is a bona fide purchaser for value. 11. Defendants 2 to 6 filed a memo of adoption. 12. During the pendency of the suit, the plaintiff amended the plaint praying for the relief of partition and separate possession and defendants filed additional written statement taking a stand that the decree became unenforceable and they had perfected their title to the property by adverse possession. On the strength of the pleadings before the Court of first instance, the following issues Were settled :- (1) Whether the plaintiff has became absolute owner of the property, given to her under the compromise decree and she is entitled for the same under Section 14 of the Hindu Succession Act 1956 ? (2) Whether the arrangement after compromise decree pleaded by the defendants is true, valid and binding on the plaintiff? (3) Whether the plaintiffs claim is barred by limitation ? (4) Whether the plaintiff is entitled to the possession of the plaint schedule property ? (5) Whether the plaint schedule is not correct? (6) To what relief? 13. On behalf of the plaintiff P.W.1 was examined, Ex.A.1-Registered Notice issued by the Advocate for plaintiff to the defendants dated 18-12-1980 and Ex.A.2 Certified copy of the suit register extract in 0.S.No.469/48 on the file of District Munsifs Court, Kovvur were marked. D.W.1 and D.W.2 also were examined. The appellate Court framed the following points for consideration :- (1) Whether the plaintiff became the absolute owner of the suit property by operation of Section 14(1) of the Hindu Succession Act, 1956 and is entitled to recover the same from the defendants ? (2) Whether the plaintiffs claim is barred by time ? (3) Whether the judgment and Decree passed by the trial Court are sustainable in law and on facts? and ultimately, as already referred to supra, dismissed the appeal. 14. (2) Whether the plaintiffs claim is barred by time ? (3) Whether the judgment and Decree passed by the trial Court are sustainable in law and on facts? and ultimately, as already referred to supra, dismissed the appeal. 14. The principal substantial question which had been argued in elaboration is that when the plaintiff is claiming under a compromise decree, her remedy is to put the decree into execution and a separate suit of this nature is not maintainable in view of the bar under Section 47 of the C.P.c. It is needless to say that the second substantial question of law is only an incidental or ancillary question to the principal question canvassed before this Court. The plaintiffs husband Sambayya, the brother of defendants 1 to 5 died intestate and issueless about 30 years prior to the filing of the suit and the plaintiff succeeded to his estate and on his death the plaintiff filed O.S.No.469/48 against defendants 1 to 5 and their father for the relief of maintenance which was compromised in the year 1949. The compromise decree - EX.A.2 specifies that she should be given the extent of 0.97 cents of land in R.S.No.132 of Unagatla Village and a room and appurtenant vacant site for her separate residence from out of the joint family house and that she should enjoy those properties with limited rights without power of alienation and on her death, those properties should revert back to defendants 1 to 5. It is not in serious controversy that after the said compromise decree, the plaintiff had been in possession of the said Ac.0-97 cents of land but however she was not given the room and the vacant site. It appears from record and the evidence that she had been living with her parents who are also the residents of the same village. Evidently, this appears to be the reason that she was very particular of claiming right relating to this portion of the property covered by the compromise decree. It is also not in serious controversy that defendants I to 5 sold away the plaint schedule property which is family house and vacant site to 6th defendant under registered sale deed dated 16-9-1980 and the plaintiff is not a party to the said transaction. It is also not in serious controversy that defendants I to 5 sold away the plaint schedule property which is family house and vacant site to 6th defendant under registered sale deed dated 16-9-1980 and the plaintiff is not a party to the said transaction. The plaintiff had issued EX.A.I notice to the defendants calling upon them to divide and deliver separate possession of her room and vacant site to her and they had not given any reply and hence the suit was filed. The earlier suit by the plaintiff was filed for the relief of maintenance and a compromise was arrived at by the parties and accordingly a compromise decree was made. The present suit is for the relief of partition, that too claiming absolute right over the property on the ground that her limited right under the compromise decree is enlarged into an absolute estate by virtue of the operation of Section 14(1) of the Hindu Succession Act 1956. It is needless to say that the same view was expressed by the apex Court in V. Tulasamma v. V. Sesha Reddi, AIR 1977 SC 1944 . When the nature of relief prayed for and the nature of the suit filed, when these are different from the prior decree, it cannot be said that Section 47 of the Code of Civil Procedure would operate as a bar, especially in the light of the fact that the plaintiff is claiming an enlarged estate or an absolute estate by virtue of operation of law - the applicability of Section 14(1) of the Hindu Succession Act 1956. Apart from this aspect of the matter, both the Courts recorded concurrent findings and arrived at a conclusion that the plaintiff is entitled to the relief prayed for in the suit. Except this question, no other contentions had been advanced by the Counsel representing the respective parties. In the light of the legal position referred to supra, this Court is of the considered opinion that the second appeal is devoid of merit and the same shall stand dismissed but however in view of the relationship between the parties, the parties are directed to bear their own costs.