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1999 Supreme(AP) 7
Andhra Pradesh High Court
Judges : A.HANUMANTHU
NEERUKATHU ANKANNA - Appellant
Versus
YADAGIMATHUM NAGARAJU - Respondent
Decided On : 01-18-99
Headnote:
Hindu succession Act 1956 - Sections 14(1) and 14(2) - CHALLENGE -Suit for Partition - Suit seeking reliefs of declaration of plaintiffs title to suit site for permanent injunction restraining defendants and their men from trespassing into suit site and making any constructions thereon or in any manner interfering with plaintiffs peaceful possession and enjoyment of said site and for mandatory injunction directing defendants to remove walls and other superstructures made on suit site - Open site marked as A, B, C, D and X in plaint plan situated in village within specific boundaries and it is an house site - As per averments in plaint suit site is ancestral property of plaintiff and his father - There used to be a dilapidated house previously on said site and it fell down in due course of time and said site is now lying vacant - Plaintiff and his father divided their joint family properties under a registered partition deed and in said partition suit site along with other properties fell to share of plaintiff - Substantial questions of law involved are Whether limited right of over suit property got enlarged into absolute right under sub-section of Section 14 of hindu Succession Act, 1956 and thus plaintiff or his father have no right to get back said property as per the terms of compromise in decree in O. S - Whether defendants have perfected their title by adverse possession - QUESTION It is not disputed that defendants are legal heirs of deceased - Held, Court held that plaintiff failed to establish that he is absolute owner of suit site and that he is in possession and enjoyment of same - Trial Court also held that defendants have also perfected their title by adverse possession - Hence plaintiffs suit was dismissed With costs - Held that an alignee even if she is a female hindu from a limited owner is not entitled for benefit of enlargement of limited estate into absolute right under Section 14 of Hindu Succession art and alignee does not become limited owner - It has come in evidence that defendants applied for permission for construction of house over suit site and as seen from and Gram had sanctioned permission for construction of house - These documents go to show that defendants were in possession and enjoyment of same on date of filing of suit and as such plaintiff is not entitled for injunction as prayed for - Registered partition deed in between plaintiff and his father also does not in any way help plaintiffs case - Further it is only a self-serving document brought into existence between plaintiff and his fattier - Date or year in which died is not mentioned in plaint - On other hand it is suggested to Court in his cross-examination that died in year categorically stated in examination-in-chief that died about more than years ago - It is their case that subsequent to death of they are in possession and enjoyment of suit property as her heirs and that plaintiff or his father never took back delivery of suit property under compromise decree and they were never in possession and enjoyment of suit property subsequent to death of - Court hold that plaintiff failed to establish his title to suit property and defendants have perfected their title to suit property by adverse possession - Hence plaintiff is not entitled for reliefs as prayed for in his suit and Appeal Allowed
( 1 ) THIS is a defendants appeal against the reversing judgment of the lower appellate Court i. e. , Subordinate Judge, Nandyal, in A. S. No. 28 of 1983, dated 22-1-1990.
( 2 ) FOR the sake of convenience, the parties are being referred herein as they are arrayed in the suit O. S. No. 444 of 1980 on the file of the Principal District munsif, Nandyal in Kurnool District.
( 3 ) THE respondent-plaintiff filed the said suit seeking the reliefs of (i) declaration of plaintiff s title to the suit site; (ii) for permanent injunction restraining the defendants and their men from trespassing into the suit site and making any constructions thereon or in any manner interfering with the plaintiff s peaceful possession and enjoyment of the said site; and (iii) for mandatory injunction directing the defendants to remove the walls and other superstructures made on the suit site.
( 4 ) THE suit site consists of the open site marked as A, B, C, D and X in the plaint plan situated in Panyam village within specific boundaries and it is an house site. As per the averments in the plaint the suit site is the ancestral property of the plaintiff and his father. There used to be a dilapidated house previously on the said site and it fell down in due course of time and the said site is now lying vacant. The plaintiff and his father (P. W. 2) divided their joint family properties under a registered partition deed dated 8-10-1979 (Ex. A-1) and in the said partition the suit site along with other properties fell to the share of the plaintiff. Thus the plaintiff became the absolute owner and possessor of the suit site. Alleging that about ten days prior to the filing of the suit, during the absence of the plaintiff from the village, the defendants high-handedly trespassed into the suit site and raised some constructions on the suit site the plaintiff filed the said suit for the reliefs stated supra.
( 5 ) THE first defendant is the father and the defendants 2 and 3 are his sons. During the pendency of the suit, the first defendant died and his wife has been brought on record as his legal representative. The case of the defendants as put forth in their written statement is that the plaint plan is incorrect; that it does not show the correct topographical features of the subject matter of the dispute; that the disputed site is not the ancestral property of the plaintiff; that X marked site is the mutts property and is meant for public at large. The rest of the disputed site belongs to the defendants. Originally on the suit site there existed a house for the residence of one Uppara Nagamma who was the paternal grandmother of the defendants 2 and 3. She used to reside in that house. It was also assessed in the name of Uppara Nagamma and its door number was 12/60. She died about 18 years ago. After her death, the defendants have been in possession and enjoyment of the said house and they were using it for their sundry purposes. As the house has become very old, the defendants obtained permission from the Panchayat for constructing a new house in place of that old house. They also obtained permission for construction of the house. The plaintiff who is jealous of the prosperity of the defendants filed the suit with false allegations. The defendants have also pleaded that they have been in possession and enjoyment of the old house and the suit site since 1962 exclusively and as such they have perfected their title by adverse possession.
( 6 ) BASED on those pleadings, the trial Court settled the relevant issues fortrial. P. Ws. l to 3 were examined and Exs. A-1 to A-3 were marked on behalf of the plaintiff and D. Ws. 1 and 2 were examined and Exs. B-1 to B-6 were marked on behalf of the defendants. The plaintiff got himself examined as p. W. I. P. W. 2 is the father of the plaintiff. P. W. 3 is a villager and adjacent house owner and he deposed that the plaintiff has been in possession and enjoyment of the suit site. The third defendant got hims
