Dismissed

Kona Satyanarayana v. konka Srinivasa Rao

Andhra Pradesh HC4 Sept 2023CRP/1313/2022

Case brief

AI extract

What is this about?

High Court disposed of three civil revision petitions challenging Trial Court orders denying amendment to plead partition relief and refusing to de-exhibit a document. Held amendment not permitted due to delay and no need to grant relief differently; de-exhibition application dismissed.

What did the court decide?

Petitioners granted liberty to argue before trial court at law; de-exhibition application dismissed.

Kona Satyanarayana Vs konka Srinivasa Rao — Property and Title | Andhra Pradesh HC (2023)

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THE HON’BLE Ms. JUSTICE B.S.BHANUMATHI Civil Revision Petitions No.1313, 1314 and 1315 of 2022 COMMON ORDER:

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All the Civil Revision Petitions are filed under Article 227 of Constitution of India against the orders dated 02.05.2022 dismissing the petitions in I.A.Nos.39 of 2020, I.A.No.38 of 2020 and 37 of 2020 in O.S.No.7 of 2013 on the file of the Court of Senior Civil Judge, Kandukur. Since all the revision petitions have the common grounds and one is connected to the other, this Court is proceeding to pass a common order.

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2. Inspite of service of notice on the respondent, no appearance has been made.

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3. I.A.No.39 of 2020 was filed under Order VI Rule 17 CPC r/w Rule 28 of Civil Rules of Practice to permit the amendment of the relief by adding the following prayer after the end of the Clause(a) as follows :-

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“or in alternate to partition the properties as shown in the body of plait (sic plaint) i.e., vacant site to an extent of 469 square yards in survey No.865/1A2A1, of Kandukur Town, to an extent of Ac.3.72 cents in survey No.427 of Kovur village and to an extent of Ac.5.14 cents in survey No.51/2, of Vippagunta

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village, into two equal shares, by taking into consideration of Ex.B2 sale deed dated 27.02.1980, executed by the defendant”

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CRP No.1313 of 2022 is filed against the order therein.

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4. I.A.No.38 of 2020 is filed by the plaintiff/petitioner under Section 151 CPC to reopen the suit. CRP No.1314 of 2022 is filed against the order therein.

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5. I.A.No.37 of 2020 is filed by the plaintiff/petitioner under Order XIII Rules 3 and 4 CPC to De-exhibit the document Ex.B.1 from the suit record. CRP No.1315 of 2022 is filed against the order therein.

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6. The petitioner is the plaintiff who filed the suit against the respondent seeking declaration that the plaintiff is the real owner of the plaint schedule properties having right, title and possession over the properties and for consequently permanent injunction restraining the defendant and his associates from interfering with the plaintiff’s peaceful possession and enjoyment of the plaint schedule properties in any manner.

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7. The case of plaintiff is briefly as follows:-

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The plaintiff and defendant are brothers. They divided their ancestral properties and other properties which include the properties purchased with the income derived from the ancestral

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property. In the division, ‘A’ schedule properties fell to the share of the plaintiff and B schedule properties fell to the share of the defendant. Thereafter, they have been enjoying the properties separately. By suppressing these facts, the defendant is trying to alienate the properties belonged to the plaintiff i.e., an extent of Ac.1.22 cents out of Ac.3.72 cents in survey No.427 of Kovur village shown as item No.2 of the plaint schedule and the defendant is acting detrimental to the interest of the plaintiff with regard to the property of the plaintiff to an extent of Ac.2.57 cents in survey No.51/2 Vippagunta village shown as item No.3 of the plaint schedule properties. Further, the defendant is also propagating that the plaintiff does not have any site in item No.1 of the plaint schedule and moreover, he is trying to alienate the properties by creating spurious documents. The plaintiff got issued registered legal notice to the defendant on 11.08.2011. The defendant purposefully refused to receive the notice. He remained silent all these days, but now again he started propagating as said above and is trying to alienate the properties shows as items No.1 and 2 of the plaint schedule. Hence, the suit is filed.

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8. The defendant filed written statement opposing the suit and denying the averments in the plaint and further stating briefly as follows:-

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The relationship is true. It is also true that both of them divided their ancestral properties. It is false that the properties include the properties purchased out of the income derived from the ancestral property and that A schedule properties fell to the share of the plaintiff and B schedule properties fell to the share of the defendant. It is true that the defendant sold properties mentioned in serial Nos.1 to 7 in the plaint, to various persons. It is false that suppressing the facts, the defendant is trying to alienate the properties of the plaintiff and that the defendant is acting detrimental to the interest of the plaintiff or that the defendant is propagating as said by the plaintiff. The defendant is not aware that the plaintiff got issued the legal notice on 11.8.2011. It is false that the defendant purposefully refused the notice and that the defendant kept quiet, but again is resorting to propagate and alienate the properties as alleged. It is also false that the defendant is creating spurious documents. Items No.1, 5, 15 and 16 mentioned in ‘A’ schedule in the plaint at page 2 of the plaint did not fall to the share of the plaintiff in the family partition. In the said partition, the items No.2 to 4, 6 to14 only fell to the share of the plaintiff. The total extent of item No.1 of plaint schedule is 1469 square yards. 32 square feet was purchased by Konka Venkata Subbaiah who is the father of plaintiff and the defendant

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under a registered sale deed dated 29.08.1970 and after demise of their father, the defendant who is eldest son has been managing the joint family and its properties till the partition took place. After the death of the father, before the division of the joint family properties, 180 5/9 square yards in the above said site was sold to Sri Gandhavall Raja Lingam under the registered sale deed dated 27.02.1980 to the defendant for the benefit of the joint family. Later, the partition took place on 26.09.1991 in the presence of the village elders Sri Muppu Subba Rao and Sri K.Vasantha Rao and the partition was reduced into writing and scribed by Sri.I.Narasimha Rao and attested by the said elders. The plaintiff and the defendant signed each page of the deed of partition. After leaving the site sold to Sri G.Rama Lingam, the rest 289 square yards of site fell to the share of the defendant in that partition. As such, item No.1 of plaint schedule, along with rest of the site under the same survey number, completely fell to the share of the defendant alone and the plaintiff has no right, title, possession or enjoyment of item No.1. Similarly, the total extent Ac.3.72 cents in survey No.427 shown in item No.2 of the plaint schedule fell to the share of the defendant and the plaintiff cannot claim any right, title, possession or enjoyment of the same. The defendant is a teacher and worked since 1966. He was married in the year 1968 and his wife is the

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only daughter of her parents who got 30 acres of land and cash of Rs.2,00,000/- which is a big amount in those days and his parentsin-law are rich. His father-in-law presented Rs.1,00,000/- to him at the time of marriage. Out of self earnings and the funds presented to him, the defendant purchased Ac.5-14 cents in survey No.51/2 under a registered sale deed dated 09.08.1971 from Thumati Chinnamma which is shown as item No.3 in the plaint schedule. As such, item No.3 is the self acquired property of the defendant and the plaintiff does not have any right, title, possession and enjoyment of the property. The revenue authorities also mutated the name of the defendant in the revenue records in respect of items No.2 and 3 of the plaint schedule property and the rest of the land in the same numbers. The defendant used to pay cists towards his share as and when demanded by the concerned authority. The documents filed by the plaintiff along with the plaint are all tampered with the active collusion and connivance of the revenue officials. The original partition deed dated 26.09.1991 was kept with the plaintiff, whereas its photostat copy was given to the defendant. Therefore, the said photostat copy, along with the certified copy of the registered sale deed dated 27.2.1980, the title deed and pass book of Kovur land, pattadar pass book of Ippagunta land, adangal for fasli 1407 in respect of the item No.2 of plaint

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schedule and certified copy of the registered sale deed dated 09.08.1971 are filed with the written statement.

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9. In the back drop of the averments in the written statement, the plaintiff filed the petition in I.A.No.39 of 2020 seeking the proposed amendment. He further stated that the pleadings of both parties and the evidence lead by them entitled the plaintiff to seek alternative relief of partition and that the court fee already paid is sufficient to the alternative relief for partition and the value of the suit would not change. The plaintiff further stated that no additional, oral or documentary, evidence or additional pleadings are required and that they are sufficient to grant the alternative relief prayed. As such, the plaintiff seeks the proposed amendment in the prayer of the plaint as an alternative relief.

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10 . The petition was opposed by filing counter denying the contents of the petition and further stating that the suit was filed in the year 2013 and the evidence on both sides was also closed long back and the suit was posted for arguments on several dates at the request of the plaintiff and at that juncture, the present petition was filed with a view to drag on the matter further. It is further stated that as per the amended provisions of CPC, no amendment be permitted without showing the reason for not taking the amendment before commencement of the trial and moreover the

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proposed amendment will change the nature of the case and the

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cause of action and, therefore, the petition is liable to be dismissed.

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11. After hearing both parties, the trial Court dismissed the petition observing that the suit is filed for declaration of title, whereas the proposed relief is for partition as though the suit schedule properties are joint properties which is contrary to the prayer already made in the suit and further more there is no dispute with regard to prior partition and, therefore, the proposed amendment would certainly change the cause of action and the nature of the case also. It is further observed that there is not only delay but also no merit in the petition. As such, the petition was dismissed. The trial Court distinguished the application of the decision of the Supreme Court in Pankaja and another v. Yellappa (died) by L.Rs .¹ with regard to the present case, stating that in that case the suit was originally filed for permanent injunction and for possession of the property and that as the written statement was filed pleading that the suit is not maintainable without the relief of declaration of title, the petition was allowed; whereas in the case on hand, the situation is different as noted above.

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1 (2004) 6 SCC 415, the Supreme Court

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12. The learned counsel for the petitioner contended that as

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per Order VI Rule 17 CPC, a Court can grant a relief which has not been asked for and that when such a relief is lesser than the relief already claimed, the Court has jurisdiction to grant such relief and therefore, the Division Bench of this High Court in Kusam Satyanarayana Reddy and others v. Kusam Sambrajyamma (died per L.Rs. and others² held that granting relief of partition in a suit filed for the relief of declaration of title and recovery of possession is legal. In that case, the plaintiffs claimed the whole property, but the trial Court found that the plaintiffs can claim part of the property as the legal representatives of the original owner along with some of the defendants and therefore, the relief of partition was granted in respect of the declaration of title and possession asked for. The Division Bench upheld judgment of the trial Court.

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13. In the present case, the plaintiff filed the suit for declaration seeking to declare that he is the owner of the plaint schedule properties and has their possession and for consequential permanent injunction. The suit was contested by the respondent/defendant. At the stage of the arguments, the plaintiff filed the petition for amendment of the plaint stating that his

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2 2004 (3) ALT 115 (D.B.)

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advocate advised to file this petition as he noticed that the proposed relief is necessarily to be pleaded. The plaintiff further stated that there is no dispute with regard to partition of the joint family properties between the plaintiff and the defendant and that the only dispute is regarding the allotment of the suit schedule properties in favour of the plaintiff, since the defendant stated that the plaintiff has no share in the suit schedule properties; but in fact there is an oral partition as stated in the plaint. The petitioner further stated that since the facts were already pleaded and evidence was led, except amending the prayer, no further steps need to be taken and so no delay would occur for the disposal of the suit.

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14. The learned counsel for the petitioner submitted that no

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further amendment of the pleadings is required, and, therefore, there is no need to adduce any further evidence and no further

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delay would occur by permitting the amendment. He further submitted that there would be no change in the cause of action. He further placed reliance on the decision of the Division Bench of this

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Court in Kusam Satyanarayana Reddy and others v. Kusam Sambrajyamma (died per L.Rs.) and others³ in support of his contention that in a suit for declaration and possession, a less relief

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3 2004(3) ALT 115 (D.B.)

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of partition can be granted though not asked for and, therefore, there is no prejudice would be caused by permitting the petitioner to seek such relief which can be granted even in its absence.

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15. In the above cited case at para 16, the question ‘whether in a suit for declaration and possession, a decree for partition could be granted fell for consideration and discussed’ as follows:

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“16. The Trial Court held that the claim of the plaintiffs that late Punna Reddy had executed a will in favour of Plaintiffs 2 to 7 and defendants 5 to 7 was not genuine and the document executed on 29.10.1979 was not true and valid. It also held that the document executed on 6.11.1979 was also not true and valid, therefore the plaintiffs were not entitled for recovery of possession on the basis of Ex.A6-registered will dated 29.10.1979. Since all the documents relied on by both the parties were held to be invalid, the Trial Court ordered partition of the suit schedule properties as the Court fee had been paid and the plaintiffs had also prayed for possession. Wife of late Punna Reddy also died during the pendency of the suit. Their legal heirs were 2nd plaintiff, 4th defendant and Plaintiffs 3 to 7. The Trial Court found that the suit schedule properties belonged to their parents, therefore it ordered the partition. Whether in a suit for declaration and possession a decree for partition could be granted is the question which has been raised. The Trial Court relied

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on the judgment of a Division Bench of this Court reported in Pendyala Narasimham v. Pendyala Venkata Narasimha Rao, 1962 (1) An.WR 282. We have gone through this judgment. A similar question arose in that case. The Court was considering the question whether a suit for ejectment could be regarded as one for partition if the plaintiff was found entitled to it even in the absence of an alternative claim. The Court referred to a decision of the Madras High Court reported in Viswanathaswamy Naicker v. Kammu Ammal, (1912) 21 Indian Cases 724. In this judgment the Madras High Court held that the plaintiff could be given a decree for a share of a part of the property, if he was found entitled to it even though the suit was for ejectment, and the plaintiff did not ask for the alternative relief of partition. This Court also noted a decision reported in Adhilakshmi Ammal v. Nallasivan Pillai, AIR 1944 Mad. 530, in which the same view was expressed. In another case reported in Rama Naickan v. Muthayammal, (1911) 21 Mad. LJ 997, a co-widow sought to recover possession of the properties from her husband's brother in her exclusive right. During the trial it was found that 1st defendant had acquired the right of 2nd defendant, the other widow, under an arrangement and consequently the plaintiff was entitled only to a decree for half share of the properties and the suit was decreed for division of the property. In another case reported in Ali Raza Khan v. Nawazish Ali Khan, AIR 1942 Oudh 243 where in a suit for possession claiming sole and exclusive rights over certain property the Trial Court

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found that the plaintiff was actually entitled to claim only 1/3rd share in the property, but the Trial Court refused to give a decree on the ground that the plaint was not amended. But the High Court in an appeal granted a personal decree for a share of the property to the plaintiff on the basis of his being a co-owner observing that it was not illegal or unjust to give such a relief as such a decree would not alter the frame of the suit so as to cause any hardship or injustice to the defendant. In para-29 the Division Bench of the Court said:

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“What emerges from these rulings is that even without an amendment in a suit for possession of certain property with sole and exclusive rights therein, a decree for partition could be granted notwithstanding the absence of an alternative prayer provided such a relief would not result in much prejudice or injustice to the other side.”

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Further, at paragraphs 17 and 18, after considering Order VII Rule 7 and Orders VI, Rule 2 CPC and the decision of the Supreme Court in Firm Srinivas Ram Kumar Vs Mahabir Prasad and others⁴ held at para 19 as follows:

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“19. In view of this judgment and in view of the mandate of Order 7, Rule 7 of the Code which clothes the Courts with inherent power to grant either general relief or other relief which appears to be just, legitimate and proper in any case even though such reliefs have not been specifically asked for. We find no difficulty in this case in upholding the Trial Court's judgment. It may also be,

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4 AIR 1951 SC 177,

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however, noted that under Order 7, Rule 7 of the Code although the Court can grant a relief which has not been asked for, but it cannot grant a relief which is larger than the relief claimed by the plaintiff, but where the relief claimed by the plaintiff is larger and the Court grants a relief which is smaller than the one claimed, it would be legal. In the present case the plaintiffs claimed whole property, but on facts the Trial Court found that they could claim part of the property as legal representatives of the original owner along with some of the defendants. Therefore, in our view, the Trial Court was right in granting the decree of partition. Same view was expressed by the Orissa High Court in a judgment reported in Managobinda v. Brajabandhu Misra , AIR1986Ori281, where the plaintiff had claimed a declaration of exclusive title, confirmation of possession and consequent permanent injunction, but the Court found it to be joint property and did not agree with the plaintiff that he had the exclusive title and possession. In the result the Court passed a decree that the plaintiff had joint title and possession over the suit property.”

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16. According to the plaintiff, there was an earlier partition of the ancestral property into two parts and ‘A’ schedule properties fell to the share of the plaintiff and ‘B’ schedule properties fell to the share of the defendant, however, the defendant is trying to create some documents suppressing the fact regarding an extent of Ac.1.22 cents of the plaintiff out of Ac.3.72 cents in S.No.427 of Kovur village, along with his property to an extent of Ac.2.50 cents in the said land. The defendant filed written statement alleging that the averments in the plaint are false and further admitting that

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there was a partition dividing the properties into ‘A’ and ‘B’ schedules, but not as shown in the plaint. The defendant pleaded that items no.1, 5, 15 and 16 in ‘A’ schedule did not fell to the share of the plaintiff. It is also pleaded that the total extent in item no.1 is 469 square yards and 32 square feet purchased by the father of the plaintiff and the defendant under a registered sale deed dated 29.08.1970 and after the death of their father, the defendant, being the eldest son, has been managing the joint family properties till the partition took place and that after the death of the father, but before the division of the properties, an extent of 180 5/9 square yards in that site was sold to Gandhavalla Raja Lingam under a registered sale deed dated 27.02.1980 by the defendant for the benefit of the joint family and later the partition took place on 26.09.1991 in the presence of the village elders Muppa Subba Rao and K.Vasantha Rao and the partition was reduced into writing and scribed by I.Narasimha Rao and attested by the above said elders while the plaintiff and the defendant subscribed their signatures on each page of the partition deed. The defendant further stated that after selling the property to Gandhavalla Rajalingam, the rest of the property of 289 square yards fell to the share of the defendant in the above said partition and, therefore, the plaintiff did not get any share in the site in the said survey number and thus, the plaintiff

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has no right, title or possession or interest in item no.1 of the plaint schedule property. Similarly, he further pleaded that a total extent of Ac.3.72 cents in S.No.427 shown in item no.2 of the plaint schedule fell to the share of the defendant and the plaintiff does not have any share therein. He further pleaded that he, being a teacher, earned money and his wife also came from a rich family having Ac.30.00 cents of land and cash of Rs.2,00,000/- in those days and his father-in-law, by then being a big ryot, presented him Rs.1,00,000/- at the time of his marriage in 1968 and thus he purchased item no.3 of the plaint schedule with his self earnings and that the plaintiff has wrongly shown that he got ½ extent of property i.e. Ac.2.57 cents in the said survey number, though he does not have any right at all. He further pleaded that all those properties were mutated in his name in the revenue records and he was issued title deeds and pattadar pass books and that the plaintiff is not entitled to the suit reliefs.

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17. In view of the pleadings, there is admission by both parties that earlier there was a partition between the plaintiff and the defendant. Since the plaintiff pleaded that certain items of property fell to his share and consequently he asked for declaration of his right over such items of property by virtue of the partition and whereas the defendant denied the claim of the plaintiff while

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admitting the partition. The main question in the suit would be whether these items of property fell to the share of the plaintiff or not, so that he became the owner of such properties. It is not the case of the defendant that these items remained un-partitioned. According to the defendant, one item was purchased by him with his own earnings and the other two items also fell to his share as stated in the written statement. As such, the evidence must have been led on the basis of the pleadings and issues thereof be involved. In a suit for declaration of title, the burden will be on the plaintiff, whereas if the suit is converted into the relief of partition, the burden would be on the defendant to show that the items of property were purchased with his self-acquisitions, though initially the burden would be on the plaintiff to show that the property is of ancestral in nature since there is no presumption that the property is that of joint family property. Therefore, it is not merely arguing the case by just amending the plaint but it would lead to further delay in the suit as an opportunity must be given to the defendant to file additional written statement after allowing the amendment in the prayer and again different issues need to be framed basing on the pleadings and the defendant may also require to lead further evidence. As such, at the fag end of the suit, if the permission for amendment is granted, it would further delay the proceedings

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inordinately. Moreover, when it is not shown that such amendment could not be taken inspite of due diligence exercised before commencement of the trial, it would not be proper to permit the amendment merely for asking sake. The trial Court also rightly held that it would change not only the nature of the relief, but also the suit. If at all such relief can be granted, though not asked for, as the evidence has already been completed and the matter is coming up for arguments, the petitioner is at liberty to put forth the arguments basing on the above said decision. Accordingly, there is no merit in the revision.

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18. At the stage of arguments in CRP No.1315 of 2022, the plaintiff filed I.A.No.37 of 2020 to de-exhibit Ex.B.1 which was filed by the defendant in his evidence. The plaintiff contends that Ex.B.1 clearly discloses that the rights and title were created in the immovable property under the said document and therefore it requires registration as well as stamp duty as per law and thus it is inadmissible in evidence, but due to inadvertent mistake, the same was marked as Ex.B.1 to prove the title of the defendant and therefore it is to be de-exhibited.

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19. The petition was opposed by filing counter by the defendant stating that the plaintiff is questioning the same at this juncture and that the petition was filed only to drag on the matter

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and further stating that the defendant is aged about 80 years and a retired employee and the suit is pending for a long time. After hearing both parties, the trial Court dismissed the petition on the ground that as per Section 36 of the Indian Stamp Act and the principle laid down by the Supreme Court in the case of Javer Chand and others Vs Pukhraj Surana⁵ , the deficit stamp duty cannot be questioned and insofar as the registration is concerned, since no new right is created as per the said document, it does not fall within the ambit of Section 17 of the Registration Act.

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20. Having been aggrieved by the order, this revision petition is filed contending that the right in immovable property worth Rs.100/- was created by virtue of Ex.B.1 and therefore as per Section 17 of the Registration Act, the document requires registration, but the trial Court has erroneously dismissed the petition holding that the document was not properly registered and stamped and for these reasons the document is inadmissible in evidence and is to be de-exhibited.

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21. In the impugned document it was mentioned that both parties have resolved their disputes between the village elders and got executed a partition deed and hereafter there would be no disputes between them about the properties and further that there

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5 AIR 1961 SC 1655

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would be no objection to enjoy 1/4^th share in TBGR 50 and necessary assistance would be rendered before the Superintendent of Tobacco Board. On examination of this document which is engrossed on a non-judicial stamp paper worth Rs.20/-, the trial Court observed that no right in immovable property was created by virtue of this document. This Court is also of the same view. There is no recital in this document as to on which day the partition deed mentioned in this document was executed. The properties were not partitioned by virtue of this document. The tobacco barons referred in the document also are not partitioned for the first time by virtue of this document. As such, there is no reason to interfere with the observation of the trial Court for dismissing the petition.

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22. In the result, C.R.P Nos.1313 and 1314 of 2022 are disposed of giving liberty to the petitioner to argue before the trial Court basing on the decision above cited, leaving it open for the trial Court to decide as per law, and un-influenced by any observation of this Court in this order. Consequently, C.R.P.No.1315 of 2022 needs no interference.

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23 . Accordingly, as aforesaid, all three revision petitions are disposed of. There shall be no order as to costs.

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Miscellaneous Petitions, if any pending, in these Civil Revision

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petitions, shall stand closed.

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________________ B.S.BHANUMATHI, J

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