APHC010304482005 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI [3397]

(Special Original Jurisdiction)

WEDNESDAY, THE EIGHTH DAY OF JANUARY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE VENUTHURUMALLI GOPALA KRISHNA RAO FIRST APPEAL NO: 615/2005 Between:

Tunuguntla Bharathudu and 2 others ...APPELLANTS/DEFENDANTS 1, 3 AND 4 AND Tunukuntla Nagendra Laxaman Kumar ...RESPONDENT/PLAINTIFF Counsel for the Appellants:

1. N SRIRAM MURTHY Counsel for the Respondent:

1. GANESH PALADUGU The Court made the following:

Judgment

The appeal is filed against the judgment and decree dated 14-3-2005 in O.S.No.44 of 1995 passed by the learned I Additional Senior Civil Judge, Guntur, Guntur District. The suit is filed for preliminary decree for partition of plaint-A and B schedule properties into two equal shares and delivery of vacant possession of one such share to the plaintiff and for mesne profits from the date of suit till the date of delivery of vacant possession of the schedule properties and for costs.

2. The case of the plaintiff as narrated in the plaint, in brief, is as follows:

(a) It is pleaded that the plaintiff and the 1^st defendant are children of late Tunuguntla Viswanadham and late Swarjya Laxmi. Plaint-A schedule property was purchased by his mother under a registered sale deed dated 06-11-1965 from one Dupaguntla Venkata Krishna Murthy and others. Whereas the plaintiff’s father purchased plaint-B schedule property from one Muppirisetty Sivarama Prasad and others in his name under a registered sale deed, dated 26-7-1962. Since then, they have been in possession and enjoyment of the plaint-A and B schedule properties as a single unit as absolute owners.

(b) It is further pleaded that the 2^nd defendant is running a hotel in the name and style of Gowri Sankar to the south-west of the plaint-B schedule property by taking the building premises on lease from one Mallisetty Perumalli Naidu etc. While so, the 2^nd defendant had taken on lease the site along with zinc sheet shed in or about the year 1961 for the purpose of his hotel business from the plaintiff’s father. During the life time of his father Viswanadham, the 2^nd defendant herein fell in arrears of rent and became willful defaulter in payment of rents and that his father filed an eviction petition on the file of the Rent Controller, Guntur in R.C.C.No.6 of 1987 against the 2^nd defendant for eviction from the leased portion of the plaint-B schedule property and pending R.C.C., his father died and that the plaintiff and the 1^st defendant herein were brought on record as his legal representatives by virtue of a Will dated 15-11-1989 executed by late T. Viswanadham. Similarly, the mother Swarajya Laxmi also executed a registered Will dated 15-11-1989 bequeathing her plaint-A schedule property to the plaintiff and 1^st defendant. The plaint-A and B schedule properties were devolved upon the plaintiff and

1^st defendant with legal rights.

(c) It is further pleaded that the 1^st defendant, in collusion with other brothers, conspired and brought into existence a sale deed dated 12-12-1994 in favour of the 2^nd defendant with false allegations alleging that there was an oral partition in between him and the plaintiff and in order to defraud the share of the plaintiff in the schedule property, he constrained to file the suit for partition of the plaint-A and B schedule properties into two equal shares and to allot one such share to the plaintiff and deliver vacant possession of the same to him and for mesne profits of the said share from the date of suit till the date of realization with suit costs. Hence, the suit.

3. Brief averments in the written statement filed by the 1^st defendant are as follows:

The 1^st defendant admitted the relationship between him and the plaintiff and about the execution of registered Wills by their father Viswanadham and mother Swarajya Laxmi in favour of him and plaintiff in respect of the plaint-A and B schedule properties equally and also the proceed