HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY CMSA.No.1 of 2014 Date:08.08.2014 Between:
Kandibanda Susheela, W/o Late Satyanarayana and two others.
. Appellants And:
Motamarri Srinivasa Rao, S/o Ramakrishna and another.
. Respondents Counsel for the appellants: Sri N.V.Anantha Krishna Counsel for Respondent No.1: Sri P.Ravi Shankar For Sri K.Mahipathi Rao The Court made the following:
JUDGMENT:
At the interlocutory stage, this Civil Miscellaneous Second Appeal is heard and being disposed of with the consent of the learned counsel for the parties.
This Civil Miscellaneous Second Appeal is filed against judgment and decree, dated 27.12.2013, in AS.No.12 of 2013 on the file of the learned II Additional District Judge, Nalgonda at Suryapet.
Respondent No.1 filed O.S.No.15 of 2003 against respondent No.2 on the file of the learned Senior Civil Judge, Suryapet for recovery of money based on a promissory note. By order, dated 06.03.2003, he has got the properties, which is the subject matter of the dispute, attached before judgment. Eventually, the suit was decreed on 29.11.2006 for a sum of Rs.7,22,500/- with interest and costs. Feeling aggrieved by the said judgment and decree, respondent No.2 filed A.S.No.30 of 2007 in this Court and obtained interim order. As he has failed to comply with the conditional interim order, respondent No.1 filed E.P.No.13 of 2007 for execution of decree. In the said E.P., the appellants herein filed EA.No.21 of 2011 claiming that the suit schedule property is a joint family property and they have 3/4th share therein. By order, dated 25.03.2013, the learned Senior Civil Judge, Suryapet dismissed E.A.No.21 of 2011. A.S.No12 of 2013 filed by the appellants against the said order was dismissed by the learned II Additional District Judge, Suryapet by judgment, dated 27.12.2013. Against both these orders, the claim petitioners filed this CMSA.
It is the pleaded case of the appellants that late Kandibanda Satyanarayana was the original owner of the subject property; that appellant No.1 is the widow and appellant Nos.2 and 3 and respondent No.2-judgment debtor are the children of the said late K.Satyanarayana; and that as the suit property has devolved upon all the legal heirs of K.Satyanarayana, the shares of the appellants herein cannot be sold.
Respondent No.1 filed a counter-affidavit denying the claim of the appellants that the subject property is a joint family property. It is further stated that the father of respondent No.2-judgment-debtor was poor, not doing anything during his lifetime and that after his death, respondent No.2 has constructed the schedule house with his own money and hence, the same is not a joint family property.
On behalf of the appellants, P.Ws.1 to 3 were examined and Exs.A-1 to A-3 were marked. On behalf of respondent No.1-decree holder, RW-1 was examined and Exs.B-1 to B-3 were marked.
Appellant No.1 as P.W-1 has deposed that late K.Satyanarayana has purchased an extent of 250 square yards under registered sale deed, dated 17.03.1988 (marked as Ex.A-1) and constructed the house with the joint family funds; that appellant No.1 is residing in one portion of the said building, shown as Item No.1 in the EP schedule; and that therefore, the schedule property is an undivided joint family property to which all the legal heirs of the deceased K.Satyanarayana are entitled to shares in equal proportions.
Appellant No.2, who is examined as P.W-2, corroborated the evidence of P.W-1. P.W-3 is a third party who supported the case of the appellants.
Respondent No.1 as RW-1 has deposed that the subject property was purchased by respondent No.2 in the name of his father and that Ex.B-3-ownership certificate, dated 03.11.2012, issued by the Kodad Gram Panchayat shows that the building is assessed in the name of respondent No.2-judgment-debtor.
T h e Execution Court accepted the version of respondent No.1-decree holder and held that the appellants failed to establish that the subject property is a joint family property. The said order has been confirmed in appeal by the lower appellate Court.
I have heard Sri N.V.Anantha Krishna, learned counsel for the appellants and Sri P.Ravi Shankar, learned counsel for respondent No.1.
The fact that an extent of 250 square yards of land, over which the schedule building has been constructed, was purchased in the name of K.Satyanarayana under Ex.A-1-regisrtered sale deed, dated 17.03.1988, is not in dispute and also the fact that K.Satyanarayana died leaving behind the appellants as well as respondent No.2 as his legal representatives is also not in dispute.
From the findings of both the Courts below, it is evident that no building permission was obtained for construction of the schedule building. The only document on which both the Courts below placed heavy reliance in coming to the conclusion that the building was constructed by respondent No.2 was Ex.B-3 ownership certificate, dated 03.11.2012, issued by the Kodad Gram Panchayat. A Gram Panchayat is the not the competent authority to determine the ownership as it is only vested with the power to grant permission for construction of buildings and to recover property tax. No one connected with the Kodad Gram Panchayat, which has issued the purported ownership certificate, was examined to speak about the said ownership certificate. In the absence of letting in oral evidence of the witness connected with Ex.B-3, the same cannot be given due weight. On the contrary, so long as the vacant site stood in the name of K.Satyanarayana, it must be held that the site belongs to the joint family. No evidence was adduced by respondent No.1-decree-holder to show that the schedule building was constructed by respondent No.2 with his exclusive personal money. Even assuming that the building was constructed with the money of respondent No.2, the entire building including the site over which it was constructed cannot be treated as his exclusive property as, the appellants, being the legal heirs of K.Satyanarayana, are entitled to 2/3rd share in the site over which the schedule building was constructed.
In this context, I have examined the reasons given by both the Courts below which border on perversity. While rendering a finding that the subject property must have been purchased by respondent No.2 in the name of K.Satyanarayana as he had no income, the Court below has ignored the provisions of the Benami Transactions (Prohibition) Act, 1988 (for short ‘the Act’). Such a finding is in the teeth of the prohibition contained in the Act. While there is no dispute relating to existence of the joint family, in the face of the admitted fact that the site was purchased in the name of K.Satyanarayana, it is proved that there is a joint family nucleus in the form of the vacant site. Therefore, it cannot be said that the subject property, which comprises not only the building but also the site, exclusively belongs to respondent No.2.
For the above-mentioned reasons, the judgments of both the Courts below cannot be sustained and they are, accordingly, set aside. However, this judgment will not preclude respondent No.1 from recovering the EP amount from out of the share of respondent No.2 over the subject property by following due process of law.
The CMSA is, accordingly, allowed.
As a sequel to disposal of the CMSA, interim order, dated 20.02.2014 in CMSAMP.No.2 of 2014 is vacated and CMSAMP.No.2 of 2014 shall stand disposed of as infructuous.
JUSTICE C.V. NAGARJUNA REDDY 08th August, 2014 DR