HON’BLE SRI JUSTICE B. CHANDRA KUMAR SECOND APPEAL No. 1108 of 2001 Dated: 22.04.2014 Between:
G. Chellaiah.
…..Appellant And Smt.Pulimi Sakunthalamma and three others.
....Respondents HON’BLE SRI JUSTICE B. CHANDRA KUMAR SECOND APPEAL No. 1108 of 2001 JUDGMENT :
This appeal is directed against the judgment dated 24.08.2011 made in A.S.No.33 of 1998 passed by the Senior Civil Judge, Srikalahasti, whereby and whereunder the learned Senior Civil Judge, confirmed the judgment and decree passed by the Junior Civil Judge, Satyavedu dated 19.03.1998 in O.S.No.20 of 1992.
2. The parties will be referred as they are arrayed in the original suit for the sake of convenience.
3. The brief facts of the case are as follows:
One Pulimi Chenga Reddy had three sons viz., Challappa Reddy, Poli Reddy and Krishna Reddy.
Chenga Reddy died in the year 1972. The joint family was having Ac.2.86 cents of land in different survey numbers. The 1st defendant - P. Narasaiah is the son of Challappa Reddy. It appears that Krishna Reddy executed a sale deed, alienating his 1/3rd share in favour of the 1st defendant under Ex.A-3 dated 26.12.1973. The 2nd defendant purchased the entire land of Ac.2.86 cents from the 1st defendant under Ex.B-1-registered sale deed dated 17.08.1983. The 1st plaintiff is the wife and the 2nd and 3rd plaintiffs are the daughters of Poli Reddy. It is not in dispute that Poli Reddy and Challappa Reddy are no more.
4. Aggrieved by the sale deed executed by the 1st defendant in favour of the 2nd defendant, the plaintiffs filed a suit for partition claiming 1/3rd share in the suit schedule properties. The 1st defendant did not contest the matter and remained ex parte. The 2nd defendant contested the matter. The specific case of the 2nd defendant is that he has purchased the property from the 1st defendant, who claimed that he was absolute owner of the property and therefore, he was a bonafide purchaser for consideration under registered sale deed. It is also his contention that prior to his purchase, the 1st defendant mortgaged the property on 03.09.1979 in favour the Chittoor Cooperative Central Bank, Sathyavedu and obtained a loan. Subsequently, the loan was cleared by the 1st defendant. It is also his contention that the plaintiffs have knowledge about the sale deed executed by the 1st defendant in his favour and therefore, the suit is barred by limitation.
5. The trial Court framed only two issues.
1. Whether the plaintiffs are entitled for partition of the suit properties as prayed for?
2. Whether the suit is barred by limitation?
6. On behalf of plaintiffs, PWs.1 to 3 were examined and Exs.A-1 to A-3 were marked. On behalf of defendants, DWs.1 to 4 were examined and Exs.B-1 to B- 17 were marked.
7. The trial Court on appreciation of oral and documentary evidence came to the conclusion that there was no partition between the brothers i.e., Challappa Reddy, Poli Reddy and Krishna Reddy, therefore, the plaintiffs have 1/3rd share in the suit schedule properties and that the sale to the extent made by the 1st defendant in favour of the 2nd defendant is void. Accordingly, the trial Court decreed the suit holding that the plaintiffs are entitled for 1/3rd share in ‘A’ schedule property. As far as ‘B’ schedule property is concerned, it appears that the plaintiffs have not added the other share holders and subsequently they did not press for the same and accordingly the suit was dismissed in respect of ‘B’ schedule properties. Admittedly, the 1st defendant was not examined and he was remained ex parte. Challenging the said judgment, the 2nd defendant filed an appeal in A.S.No.33 of 1998 before the Senior Civil Judge, Srikalahasti. However, the first appellate Court also dismissed the appeal.
8. Learned counsel for the appellant submits that the appellant is a bonafide purchaser for value and that the Courts below are not justified in reading Ex.B-1 in isolation. It is also his submission that the Courts below were not justified holding that the property was ancestral property without sufficient evidence.
9. Learned counsel for the respondents supported the judgments of the Courts below.
10. It is not in dispute that originally the property belongs to Chenga Reddy. Challappa Reddy, Poli Reddy and Krishna Reddy are the sons of Chenga Reddy. PW.1 categorically deposed that the suit schedule property is the joint family property and they were being paid their share out of the yield. On appreciation of evidence, the Courts below came to the conclusion that the suit schedule property is the joint family property and that there was no division of the said property. This finding of fact, unless it is shown that the said finding is perverse or based on no evidence, cannot be interfered with. Once it is held that the suit schedule property is a joint family property, the plaintiffs would automatically get 1/3rd share, the said finding is also gets support from the recitals of the Ex.A-3. Admittedly, the 1st defendant was not examined. So in the above circumstances, I do not see any perversity in the conclusions drawn by the Courts below. However, the fact remains that the 1st defendant was remained ex parte and Krishna Reddy has also sold his 1/3rd share in favour the 1st defendant. In the above circumstances, the 1st defendant could not have transferred more than 2/3rd share in the suit schedule property in favour of the 2nd defendant. Therefore, the sale deed executed by the 1st defendant in favour of the 2nd defendant to the extent of 1/3rd share to be allotted to the plaintiffs is void and has to be set aside. Since the sale deed executed by the 1st defendant in favour of the 2nd defendant, is not even challenged by the 1st defendant, therefore, there is no need to say that the 2nd defendant would get whatever right the 1st defendant was having on the date of execution of the sale deed Ex.B-1 on 17.08.1983 i.e., 2/3rd share. While executing the decree passed by the Courts below may take these facts and circumstances into consideration.
11. Subject to the observation made supra, the second appeal is dismissed. No order as to costs.
12. As a sequel, Miscellaneous Petitions, if any, pending in this second appeal shall stand closed.
B. CHANDRA KUMAR, J 22nd April 2014. mar