Non-alienating coparceners are not bound by the alienation of the other co-owners.

JUDGMENT :

BANDARU SYAMSUNDER, J.

1. The appellant is the plaintiff in O.S. No. 236 of 1998 filed in the Court of Junior Civil Judge, Gooty. He pleaded that he purchased the plaint schedule property on 20.11.1997 bearing Ward No. 9, D. No. 5-13, Dabada street, measuring East-West 66/2 feet and North-South 13 feet with specific boundaries in Pamidi Town of Ananthapur District from R.2 to R.4/D.1 to D.3 for a consideration of Rs. 60,000/-. The appellant has pleaded that his vendors got the plaint schedule property under Registered Will dated 20.02.1959 executed by Smt. Bala Subbamma, who is said to be foster mother of one Smt. Saradamma mother of vendors of appellant herein. The plaint schedule property is said to be shown as item No. 1 in Ex.A.2 Will dated 20.02.1959. The appellant also stated that R.1/D.4 filed suit against R.4/D.3 Mr. K. Chandra Sekhar, for specific performance of contract on the basis of alleged agreement of sale dated 02.10.1983 in O.S. No. 39 of 1986 on the file of Subordinate Judge’s Court, Gooty and obtained ex-parte decree of specific performance of agreement of sale. The appellant has pleaded that he was not aware of alleged agreement of sale said to have been executed by R.4/D.3 in favour of R.1/D.4 and even otherwise, the said agreement of sale dated 02.10.1983 is not binding on joint 2/3rd share of R.2, R.3/D.1, D.2, it may bind 1/3rd share of R.4/D.3. The appellant submits that he stepped into the shoes of his vendors and as R.1/D.4 said to be taken possession of plaint schedule property recently when it was vacant, he filed suit by adding necessary parties seeking relief of declaration of his right, title to the plaint schedule property and sought for possession and he prayed for alternative relief of partition and separate possession of 2/3rd share in the plaint schedule property and for costs. The vendors of appellant/plaintiff shown as D.1 to D.3 in the suit remained ex-parte and they have not chosen to contest the case. The 1st respondent/D.4 alone contested the case and filed written statement denying claim of appellant. He submits that R.4/D.3 Mr. Chandra Sekhar having exclusive right and title over the plaint schedule property executed agreement of sale on 02.10.1983 in his favour and thereafter he filed O.S. No. 39 of 1986 obtained decree and filed E.P. No. 71 of 1997 and got registered sale deed in his favour. He submits that he has been in possession and enjoyment of the plaint schedule property since long prayer to agreement of sale dated 02.10.1983, which also known to the appellant/plaintiff and other defendants thereby he perfected his right, title to the property by adverse possession and suit is barred by limitation. It is the contention of R.1/D.4 that he has been paying house tax to the plaint schedule property and attempt made by R.2/D.1 to come on record in O.S. No. 39 of 1986 filed by him against R.4/D.3 but failed as petition filed by him in I.A. No. 106 of 1988 was dismissed and thereafter R.1 to R.3 colluded with appellant created sale deed to defeat the decree passed in his favour in O.S. No. 39 of 1986. He further submit that the appellant is not entitled to seek partition of the property as he is bona fide purchaser of the plaint schedule property, who has been in possession and enjoyment and his right also confirmed in a suit filed by him in O.S. No. 39 of 1986. He prays to dismiss the suit.

2. Basing on above pleadings, the trial Court settled the following issues:

(1) Whether the plaintiff is entitled for declaration of his right and title over the suit property?

(2) Whether the plaintiff is entitled to claim the alternative relief of partition and separate possession of the plaint schedule property as prayed for?

(3) Whether the plaintiff is entitled for damages as claimed for?

(4) Whether the Court fee paid is correct?

(5) To what relief?

3. Trial Court framed following