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2006 Supreme(AP) 1200
2007 (1) ALD 106
IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD L. NARASIMHA REDDY, J.
Gangineni Oamodar Naidu and another - Appellant
versus
Kurapati Kondaiah Naidu - Respondent
SA No.696 of 2003
Decided on 16th October, 2006
Advocate appeared: Y. Visweswara Rao,
Counsel for the Appellants; K.G. Krishna Murthy,
Counsel for the Respondent.
Headnote:
Civil Procedure Code, 1908 – Rules 97, 58 - Section 47, 106, 101, 89, 90, 58 –Order 21 – Suit Schedule Property - Relief Of Declaration of Title - Defendants filed this second appeal, aggrieved by the judgment and decree rendered by the Court of IV Additional District Judge respondent filed the suit for the relief of declaration of his title over the suit schedule property, comprising of three items of agricultural lands, and for consequential injunction against the appellants herein, from interfering with his possession and enjoyment case of the respondent herein, as presented in the plaint respondent, his brother and their father constituted a joint family. It possessed of several items of agricultural lands, and other properties. A partition took place in the presence of well-wishers and close relations plaint schedule property and a cattle shed, fell to the share of the respondent wet land and 20 acres of dry land fell to the share of his brother, in the partition father was also allotted some items of property. Ever since the date of partition, they are in exclusive possession and enjoyment of their respective shares 1st appellant is the transferee of a decree in file of the Senior Civil Judge which, the elder brother of the respondent figured as the sole judgment-debtor suit schedule property was sought to be proceeded against, Respondent under Rule 58 of Order 21 C.P.C, sale of the property was held, by the time the application was filed, he had to file the present suit, for the relief, referred to above –Held, respondent specifically pleaded that partition took place between himself, his brother and father participated in the partition, and had clearly deposed the manner in which the partition took place, and the notes of partition was prepared trial Court disbelieved the same on the sole ground that it was not registered, and expressed the view that such unregistered document can be brought about, at any point of time. If EX.A8 were to have been considered in isolation, the view expressed by the trial Court can be approved, to a larger extent executed by the father of the respondent trial Court did not entertain any doubt, about the genuinity other hand, took it as a valid and genuine document of Ex.A8, the notes of family partition, which is executed almost after two years after Ex.A8; there is a clear recital to the effect that a family partition has taken place, and that the executant intends to bequeath his share of properties to the legatees, mentioned therein. By the time the suit was filed, the father of the respondent died, and EX.A 7 became enforceable. One does not need more clinching evidence than this, to prove the factum of partition. The entries in the revenue records, relating to the contemporaneous period, marked as clearly demonstrated that the respondent started exercising rights of exclusive ownership over the suit schedule properties, soon after the partition lower Appellate Court proceeded on an hyper technical manner, while recording its finding on this aspect, as is evident from the following observation – Appeal is bereft of any merits, and the same is accordingly dismissed.
2. The respondent filed the suit for the relief of declaration of his title over the suit schedule property, comprising of three items of agricultural lands, and for consequential injunction against the appellants herein, from interfering with his possession and enjoyment. The case of the respondent herein, as presented in the plaint, is, as under:
3. Respondent, his brother-Malakondaiah Naidu, and their father Seshaiah Naidu constituted a joint family. It possessed of several items of agricultural lands, and other properties. A partition took place in the year 1980, in the presence of well-wishers and close relations. The plaint schedule property and a cattle shed, fell to the share of the respondent. About 13 acres of wet land and 20 acres of dry land fell to the share of his brother, in the partition. The father was also allotted some items of property. Ever since the date of partition, they are in exclusive possession and enjoyment of their respective shares.
4. The 1st appellant is the transferee of a decree in O.S. No.32 of 1972 on the file of the Senior Civil Judge, Kavali, in which, the elder brother of the respondent figured as the sole judgment-debtor. The suit schedule property was sought to be proceeded against, in E.P.No.12 of 1984. Respondent filed E.A. No.173 of 1985, under Rule 58 of Order 21 C.P.C, and, since the sale of the property was held, by the time the application was filed, he had to file the present suit, for the relief, referred to above.
5. The 1st appellant filed a written statement and the same was adopted by the 2nd appellant. The plea of the respondent, that a family partition took place in the year 1980; was denied. It was asserted that the suit schedule lands are the exclusive property of the judgment-debtor, i.e. Malakondaiah Naidu. It was alleged that one Syama Sundara Naidu obtained decree in OS.No.32 of 1972 against Malakondaiah Naidu, on 6.11.1973, and after making some efforts, to execute the decree, he transferred it, in favour of the 1st appellant.
The sale of the property was said to have been held, on 23.4.1985, and that it was confirmed on 5.6.1987. E.A.No.501 of 1987, filed for delivery of possession; was pending, by the time the suit was filed. It was pleaded that the suit was filed in collusion with the judgment-debtor.
6. The trial Court dismissed the suit, through judgment dated 23.6.1998. A.S. No.1 0 of 1999 preferred by the respondent, was allowed. Hence, this second appeal.
7. Sri. Y. Visweswara Rao, learned Counsel for the appellants submits that the suit was not maintainable, inasmuch as the respondent filed an application under Rule 58 of Order XXI CPC., and while getting it dismissed as not pressed, permission of the Executing Court was not obtained, to file the present suit. He contends that the finding recorded by the trial Court that the respondent herein failed to prove the partition; was reversed by the lower appellate Court, without any basis. He further submits that, all disputes, arising out of the execution of a decree, are required to be decided in the same proceedings, and not by way of a separate suit. He made extensive submissions, touching on the merits of the matter and Section 47 of Rule 89 of Order 21 CPC. He urged that the present suit, without the relief for declaration, vis-a-vis, the sale of the properties in execution; is not maintainable. Learned Counsel cited precedents, in support of the points urged by him.
8. Sri. KG. Krishna Murthy, learned Counsel for the respondent, on the other hand, submits that 1st appellant is behind the prolonged litigation, spread over the last three-and-half decades. He contends that the so-called promissory note was obtained by the 1st appellant, and he transferred the s
