THE HON’BLE SMT. JUSTICE RENUKA YARA APPEAL SUIT No.39 of 2019

JUDGMENT:

Aggrieved by the judgment and decree of the learned VII Additional District Judge, Khammam (for short ‘the learned Judge’) in O.S.No.128 of 2017 (O.S.No.291 of 2011 on the file of Senior Civil Judge, Khammam) dated 24.12.2018, the appellant/plaintiff filed the present appeal seeking partition and separate possession of her 1/5^th share in the suit schedule property.

2. Heard Sri S. Srinivas Reddy, learned counsel for the appellant/plaintiff and Sri Shaik Abdul Kalam Riyaz, learned counsel appearing on behalf of Sri S.A.Razak, learned counsel for respondent Nos.1 to 3/defendant Nos.1 to 3.

Facts of the case:

3. The appellant/plaintiff filed suit for partition and separate possession of suit schedule Item No.1 and Item No.2 properties consisting of irrigated dry land to an extent of Ac.10.20 Gts. in Sy.No.270/A and Ac.12.24 Gts. in Sy.No.360 of Konijerla Village and Mandal, Khammam District, within the boundaries detailed in the plaint schedule. The respondents/defendants are the mother (respondent No.1), brother (respondent No.2) and sisters (respondent Nos.3 and 4). The appellant is the daughter of respondent No.1 and Late Surampalli Narsaiah. The suit schedule properties are the ancestral properties of said Surampalli Narsaiah. He died about 50 years prior to filing of the suit while the appellant and respondent Nos.2 to 4 were minors. Thereafter, respondent No.1 became kartha of the family and managed the suit schedule properties. All the four children of respondent No.1 i.e. appellant and respondent Nos.2 to 4 are married. At the time of marriage, all the three daughters were given Ac.4.00 Gts. of land towards their share. The appellant was also allotted Ac.4.00 Gts. of land. Said land was cultivated by respondent No.2 and his son and usufruct was given for about 35 years. Thereafter, respondent Nos.1 and 2 developed greedy eye and denied to give yield for the year 2010 onwards. A panchayath was called for and in spite of advice of elders, respondent Nos.1 and 2 refused to give yield and therefore, the appellant filed suit for partition and separate possession of her 1/5^th share out of the suit schedule properties.

4. Respondent No.3 remained ex-parte before the learned trial Court. Respondent Nos.1, 2 and 4 filed common written statement admitting relationship between the parties. The case of the respondents is that the appellant had a love marriage, that she contacted second marriage with a married person without their consent and left the house. Subsequently, there was communication and cordial relationship between the respondents and appellant. The appellant was given Ac.3.00 Gts. of land towards her share by giving the yield as agreed. Subsequently, due to financial constraints, the appellant sold her share of Ac.3.00 Gts. to son of respondent No.2 and he is in possession of said land for about 18 years prior to filing of the suit. The respondents denied giving the yield of appellant’s share up to the year 2010 as the land was sold much prior to the year 2010. There are no lands with the boundaries mentioned in the plaint schedule according to the respondents since the shares of all the daughters were given by way of ‘Pasupu Kumkuma’ at the time of their marriages. According to the respondents, a suit for partition is not maintainable as the appellant is estopped from claiming partition as she was given her legitimate share and she has divested her rights by selling the land given to her. The land in question is not in possession of the respondents and therefore, the suit is liable to be dismissed.

5. On the basis of the above pleadings, the following issues have been settled for trial:

1) Whether the plaintiff is entitled for 1/5^th share in the suit schedule property?

2) Whether the plaintiff is entitled for preliminary decree for partition of suit schedule property?

3) To what relief?

6. During trial, the appellant got examined PW1 and PW2 and got marked