JUDGMENT

1. Sri. K. Sheshashayi @ Babu Rao and his son, Sri.K.Sathish Krishna Rao, the defendants are in appeal.

2. Sri. K. Chandrashekar Rao, the brother of Sri.K.Sheshashayi instituted a suit seeking for a declaration that he was the owner of properties bearing Sy.No.93/2 measuring 2 cents and Sy.No.9/7 measuring 17.5 cents and to direct his brother and his nephew to surrender peaceful possession.

3. He also sought for direction to direct his brother and his nephew to pay mesne profits at the rate of Rs.1,000/- per month from 20.11.2002 to 10.12.2002 and also sought for a direction to them to pay future mesne profits till the date of surrender of possession. A consequential decree of injunction is also sought for.

4. It was the case of Sri. K. Chandrashekar Rao that the suit properties had been allotted to him under the registered Partition Deed dated 09.04.1976 executed between him, his brother and his sister. It was stated that in the ‘A’ schedule properties, there was a house. It was also stated that he had sold the other properties that were allotted to him and that he was working in Vijaya Bank at various places and as a consequence, he had kept the house under lock and key for two years.

5. He stated that subsequently, he gave possession of the house which had been allotted to him to his elder brother Sri. K. Sheshashayi. Since he was advised by his brother that it would be improper to keep the house under lock and key, he accepted the suggestion of his elder brother that he be permitted to use the house existing in the plaint ‘A’ schedule properties and accordingly he agreed and his elder brother thus came into possession of the house and his possession was a permissive one.

6. It was also stated that pursuant to the registered Partition Deed, his name had not been mutated since his brother had actually given a proposal to purchase the same, but he however, went on postponing the purchase. It was also stated that he had given an offer to sell the plaint ‘A’ schedule properties for a sum of Rs.2,33,000/- after getting the same valued and after giving depreciation. It was however stated that the said offer was not concluded and in the meantime, he came to know that the entries in the revenue records were changed in the name of his nephew on the basis of the registered Partition Deed entered into between his brother and his nephew. He stated that it was therefore clear that there was an attempt to usurp his properties and left with no other alternative, he was constrained to issue a legal notice, which was also duly served on his brother and his nephew. He submitted that instead of complying with a demand to surrender possession, a frivolous reply was given denying his title and therefore, it had become necessary to institute the suit.

7. Sri. K. Sheshashayi and his son entered appearance and contested the suit by filing a written statement. They admitted the partition that had been effected between Sri.K.Chandrashekar Rao, Sri. K. Sheshashayi and his sister on 09.04.1976. They also admitted that the suit properties comprised a portion of the original family house. It was however stated that despite the partition, the suit properties were not separated from the remaining portion of the family house and remained as a single unit and the reason for this was that the family house was required to be kept as a single unit and the occupant of the house was required to perform family customs and viniyogas. It was therefore stated that from several generations, the family house was kept as a single unit and the alleged partition was only on paper and did not result in the severance or in separation of the suit properties.

8. It was stated that Sri. K. Chandrashekar Rao had not taken actual possession of the suit properties as the entire house was impartible and could not be separated. It was stated that since Sri. K. Sheshashayi was required to perform all the viniyogas and functions, he was enjoying the entire building as a single unit