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Andhra Pradesh High Court
Judges : B.K.SOMASEKHARA
R.B.Bharatha Charyulu - Appellant
Versus
R.B.Alivelu Manga Thayaru - Respondent
Decided On : 07-03-95
B. K. SOMASEKHARA, J. ( 1 ) THE defendant is the appellant. He suffered the judgment and decree at the hands of the learned VI Additional Judge, City Civil Court, Hyderabad in O. S. No. 827 of 1980 dated 31-8-1982. The suit has been decreed for possession of the suit property in favour of the plaintiff along with the relief of maintenance amount at the rate of Rs. 400/- per mensem with costs.
Fact of the Case:
The plaintiff and the defendant are the legally wedded wife and husband. They married on 11-5-1966. They lived together a few months and did not pull on well together for certain reasons and the defendant took the plaintiff to her parents house at Peddavuta palli in Krishna District for Sankranti festival in the year 1968, visited her once in the year 1968 and thereafter, did not take her back. Since then they are not living together. Then plaintiff alleges that she was not treated well by the defendant and deserted her without any justification. She also alleges that the defendant has contracted a second wife and has children through her.
Finding of the Court:
The learned trial Judge has considered the evidence before him, both oral and documentary, and has come to the conclusion that the plaintiff is entitled to separate maintenance, that the defendant is capable of providing the maintenance to her and that the plaintiff is entitled to recover Rs. 400/- (per mensem by way of maintenance from -the defendant from the date of the suit. This Court is in full agreement with such conclusions and the findings of the learned trial Judge on such points.
Issues: Whether the plaintiff is entitled to recover the possession of the suit house? Whether the plaintiff is entitled to the maintenance past and future and if so at what rate?
Ratio Decidendi: The law appears to be settled that such a person improving the property on eviction be compensated in two ways, either (1) by being paid the value of the improvements, or (2) by buying out the better title at a valuation of the property irrespective of the improvements. It is settled that the option as to the mode of compensation is that of the evictor, who can either pay the value of the improvement and take the land or sell the land instead of evicting him.
Final Decision: The appeal partly succeeds and the judgment and decree of the trial Court are partly set aside. The decree directing the defendant to pay maintenance at the rate of Rs. 400/- per mensem to the plaintiff from the date of the suit is confirmed. The decree directing the defendant to put the plaintiff into possession of the suit property is also confirmed subject to the condition that the plaintiff shall pay the estimated value of the building or the structure put up by the defendant on the site.
( 1 ) THE defendant is the appellant. He suffered the judgment and decree at the hands of the learned VI Additional Judge, City Civil Court, Hyderabad in O. S. No. 827 of 1980 dated 31-8-1982. The suit has been decreed for possession of the suit property in favour of the plaintiff along with the relief of maintenance amount at the rate of Rs. 400/- per mensem with costs.
( 2 ) THE plaintiff is the respondent. The parties would be referred to as the plaintiff and the defendant. The suit property is described as a house in the plaint. The respondent has resisted the appeal.
( 3 ) THE plaintiff and the defendant are the legally wedded wife, and husband. They married on 11-5-1966. They lived together a few months and did not pull on well together for certain reasons and the defendant took the plaintiff to her parents house at Peddavuta palli in Krishna District for Sankranti festival in the year 1968, visited her once in the year 1968 and thereafter, did not take her back. Since then they are not living together. Then plaintiff alleges that she was not treated well by the defendant and deserted her without any justification. She also alleges that the defendant has contracted a second wife and has children through her.
( 4 ) THE plaintiff has alleged that the site upon which a house is built, as described in the plaint, was purchased with her gold jewellery by pledging them by the defendant, that he constructed the house on her site by selling her gold jewellery, that she is the owner of the suit property, that she is entitled to possession of the same, that in spite of notice, the defendant neither delivered possession of the suit property to her nor paid the maintenance and therefore, she filed the suit for possession of the suit property and also maintenance at the rate of Rs. 750/- per mensem. She pleaded that the defendant has got sufficient income as an Engineer and also agricultural lands in the village, her requirement as claimed is necessary and that the suit may be decreed as prayed for. The defendant denied the allegation of desertion, and the right of the plaintiff to claim the maintenance at the rate of Rs. 750/- per mensem. He asserted that he purchased the suit site by selling his family land in the village for a consideration of Rs. 4,000/- out of which Rs. 2,500/- were paid as part consideration and the remaining, out of his own income, that he built the house on the site out of his own money by several ways which he gathered by raising loans, by getting advances from his Provident Fund and LIC policy and from out of his savings from the salary etc. He pleaded that the site was purchased in the name of the plaintiff benami with his own money as detailed above. The defendant contended that the plaintiff is not entitled to the relief claimed and that the suit is not maintainable and it is liable to be dismissed. The following issues were framed : (1) Whether the plaintiff is entitled to recover the possession of the suit house? (2) Whether the plaintiff is entitled to the maintenance past and future and if so at what rate? And (3) To what relief?1
( 5 ) THE parties went to trial on the issues whereby the plaintiff herself examined as P. W. 1, her father as P. W. 2 and two other witnesses as per P. Ws. 2 and 3 (sic) respectively and got marked seven documents as per Exs. A1 to A7 and the defendant examined himself as DW 1 and a witness as per DW 2 and got marked six documents as per Exs. B. 1 to B. 6 respectively. After both sides submitted their arguments and on the basis of the material produced before him, the learned trial Judge recorded the issues 1 and 2 in favour of the plaintiff and consequently decreed the suit.
( 6 ) THE defendant-appellant has raised number of grounds in the memorandum of appeal which are mostly in the arguments form and after having heard the learned Advocates for the parties, this Court feels that the grounds of appeal in the form of contentions can be subject to the
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