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2020 DIGILAW 256 (AP)

R Geetha Vani v. N Rahul

2020-03-18

BATTU DEVANAND, C.PRAVEEN KUMAR

body2020
JUDGMENT : C.Praveen Kumar, J. 1. The present appeal is filed under Order 43 Rules 1 and 2 of C.P.C. assailing the order dated 5.12.2018 passed in I.A. No.165 of 2018 in O.S. No.82 of 2018 by the IX Additional District Judge, Chittoor, as improper and incorrect. 2. The appellants herein are the plaintiffs in the suit. They filed the above suit to declare the plaintiffs 1 and 2 as absolute owners and title holders of the plaint ‘B’ and ‘G’ properties respectively and to evict the defendants 2 and 5 from the plaint schedule ‘B’ and ‘G’ properties; consequently to cancel the registered deed of partition bearing document No.966 of 2003, dated 5.7.2003 registered before the Sub-Registrar Office, Pakal, Chittoor District and to direct defendant No.5 to produce the original of the same and send the same to the Sub-Registrar Office, Pakala, Chittoor District; and to direct the defendant Nos.2 and 5 to pay future mesne profits of Rs.1,00,000/-per year to the plaintiffs. 3. The present I.A. is filed by the plaintiffs seeking to grant temporary injunction restraining the respondents – D2 and D5 in any way alienating the petition schedule properties to any third parties pending disposal of the suit and also to grant an ad-interim injunction to the like effect till the disposal of this petition. 4. A Counter came to be filed by the 1st respondent 2nd – defendant denying the averments in the petition filed. It is stated that in recognition of title and exclusive possession of the properties allotted to the share of the father of the 1st respondent vide ‘B’ schedule of the registered partition deed No.966 of 2003, dated 5.7.2003, the then M.R.O. of Pakala issued ROR pattadar passbook under patta No.1828 in the name of the father of 1st respondent. The father of the 1st respondent died intestate leaving him, the 1st defendant N.Saradamma, the 1st respondent and mother of this respondent by name N.Jyothi as his legal heirs to succeed his estate including the properties covered under ‘B’ schedule of the partition deed and hence the above suit as well as the petition are bad for non-joinder of the mother of the 1st respondent as necessary party in the above suit. It is further averred that on 12.6.2013, the 1st defendant, the 2nd defendant and mother of 2nd defendant, being legal heirs of the father of 1st respondent, partitioned the properties covered under ‘B’ schedule of partition deed and as per the said partition ‘A’ schedule properties were jointly allotted to the share of 2nd defendant and his mother. Further, ‘B’ schedule properties were allotted to the share of 1st defendant herein and later the 1st defendant’ out of love and affection towards 2nd defendant’ has settled her allotted properties and delivered possession to the 1st respondent herein under registered settlement deed dated 31.5.2017. Since then the 1st respondent herein is in exclusive possession and enjoyment of the properties and in recognition of his title and possession, the Tahsildar of Pakala issued pattadar passbook and title deeds in the name of the mother of 1st respondent; hence, seeks to dismiss the petition. 5. The 5th defendant filed separate counter denying the allegations in the petition. It is stated that one of the brothers N.Srinivasulu Naidu filed a partition suit in O.S.No.58 of 1956 against N.Chengama Naidu, Narayanaswamy Chowdhary and his brother N.Chinna Venkatrama Naidu before Subordinate Judge, Chittoor. In the said suit, the shares of the plaintiffs and defendants were declared and as per the decree in the said suit, the plaintiff N.Srinivasulu Naidu got 1/5th undivided share. The 1st defendant N.Chengma Naidu got 2/5th undivided share and the 2nd and 3rd defendants in the said suit viz., Narayanaswamy Chowdhary and his brother N.Chinna Venkatrama Naidu have got remaining 1/5th undivided share in their joint family properties. N.Narayanaswamy Naidu, who got undivided 1/5th share, had three sons and four daughters, namely, N.Sreenadh Chowdhary, N.Lakshminarayana Chowdhary (father of 2nd defendant), the 2nd respondent herein (D5) and plaintiffs 1, 2 and defendants 3 and 4. The 3rd defendant in the above suit by name N.Chinna Venkatrama Naidu had gifted his 1/5th undivided share to the elder brother of 2nd respondent i.e., N.Sreenadh Chowdhary and delivered possession of the same to him under registered gift settlement deed dated 24.9.1957. Thus, the said N.Sreenadh Chowdhary has got right over 1/5th share in the entire joint family properties. The 3rd defendant in the above suit by name N.Chinna Venkatrama Naidu had gifted his 1/5th undivided share to the elder brother of 2nd respondent i.e., N.Sreenadh Chowdhary and delivered possession of the same to him under registered gift settlement deed dated 24.9.1957. Thus, the said N.Sreenadh Chowdhary has got right over 1/5th share in the entire joint family properties. The said N.Srinivasulu Naidu died intestate without any children leaving behind his two wives, namely, Pedda Munemma and Chinna Munemma as his legal heirs to succeed his estate and after that, the first wife Pedda Munemma bequeathed her undivided half share out of 1/5th share in favour of Lakshminarayana Chowdhary under registered Will dated 15.3.1979 and the 2nd wife Chinna Munemma also bequeathed her remaining half share in 1/5th share in favour of 2nd respondent herein under registered Will dated 22.4.1983. Thus, after the death of both the testators, Pedda Munemma and Chinna Munemma, by virtue of the said Will, the legatees namely the father of 1st respondent and 2nd respondent herein, became the absolute joint owners of 1/5th share out of total five shares in the Hindu undivided composite joint family properties. 6. It is further stated that plaintiffs 1 and 2, defendants 3 and 4 have knowledge with regard to the division of immovable properties after the death of the father of the 2nd respondent and they have knowledge about the recitals mentioned in the unregistered partition list dated 10.11.1998 and registered partition deed dated 5.7.2003. The Lok Adalat Award passed in Appeal No.37 of 2006 dated 4.2.2006 and all the subsequent sale transactions by the 2nd respondent and father of 1st respondent as reflected in the Encumbrance Certificates are filed along with the counter. The petitioners by suppressing all the facts, falsely pleaded and prayed for declaration of title, eviction and delivery of possession over petition ‘B’ and ‘G’ schedule properties to overcome the limitation. The petitioners have approached this court with unclean hands and that the equitable relief of temporary injunction cannot be granted. The petitioners have colluded together and created the litigations over the properties of the 2nd and 1st respondents and the above suit is vague without any merits. 7. After considering the rival submissions made, the trial court by a detailed order dismissed the petition. Challenging the same, the present appeal came to be filed. 8. Heard both sides and perused the record. 7. After considering the rival submissions made, the trial court by a detailed order dismissed the petition. Challenging the same, the present appeal came to be filed. 8. Heard both sides and perused the record. 9. The main dispute in the case is the registered partition deed dated 5.7.2003 executed in the office of Sub-Registrar, to which all the parties are signatories. The plea of appellants is that on the previous date i.e., on 4.7.2003, the appellants were shown one document which contains distribution of properties equally to all. Believing the contents of the said document to be true and that the said document alone would be registered, the appellants herein blindly signed on the document on the very next day without looking into or going through the said document. It is urged that long thereafter i.e., nearly 15 years later, the appellants came to know about the fraud played by the respondents, which lead to filing of the suit. 10. The same is opposed by the counsel appearing for the respondents stating that it is very difficult to believe that appellants are not aware about the issue, since number of transactions took place in respect of land covered under the said partition deed after the document was executed and the appellants herein cannot plead ignorance of the same. 11. As seen from the record, a registered partition deed dated 5.7.2003 came to be executed in the office of the Sub-Registrar to which all the parties have signed. No objection came to be raised about the contents of the documents for more than 12 years. It is very difficult to believe that having signed the document, the appellants would have kept quiet without obtaining copy of the same. Be that as it may, three years after the document is executed, L.A. Application No.37 of 2006 (P.L.P. No.15 of 2006) came to be filed by the respondents herein in which the appellants were asked to appear and sign the documents. The appellants, as well as the respondents herein, appeared before the District Legal Services Authority, Chittoor and singed the necessary documents, which lead to passing of an order in the year 2006 itself. The appellants, as well as the respondents herein, appeared before the District Legal Services Authority, Chittoor and singed the necessary documents, which lead to passing of an order in the year 2006 itself. Though the order came to be passed in the year 2006, the Writ Petition came to be filed in the year 2018 vide Writ Petition No.25720 of 2018 challenging the order passed in L.A. Application No.37 of 2006, but, however, the said writ petition was withdrawn on 02.08.2018 with liberty to avail the remedies available under law. 12. It is now alleged that subsequent to withdrawal of the Writ Petition, the present suit is filed questioning the fraud played and for the consequential reliefs. The plea that the appellants were not aware about the contents of the documents cannot be accepted for more that one reason. Firstly, it is very difficult to believe the claim of appellants that they were unaware of the transactions which took place in the village after the execution of the partition deed in the year 2003. Apart from that, in the L.A. Application filed, they have appeared before the District Legal Services Authority and signed the documents. Hence, this Court is of the opinion that as the balance of convenience is in favour of respondents, the order impugned warrants no interference. 13. Accordingly, C.M.A. is dismissed. However, the trial court shall dispose of the main suit itself as early as possible, preferably within a period of six months to one year. It is needless to mention, any transactions taking place pending suit are always subject to result of the suit and the provisions of Section 52 of the Transfer of Property Act. There shall be no order as to costs. Consequently, Miscellaneous Petitions pending, if any, shall stand closed.