Suit for partition of Matruka properties. Trial court granted preliminary decree for partition of open land (B-Schedule) but denied share in shops (A-Schedule) as plaintiffs failed to prove shops were built with joint family funds. Appeal dismissed.
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[3208 ]
HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD
FRIDAY, THE NINTH DAY OF JUNE
TWO THOUSAND AND TWENTY THREE
PRESENT
THE HONOURABLE SMT JUSTICE P.SREE SUDHA
APPEAL SUIT NO: 229 0F 2007
Appeal Under Section 96 of C.p.C., gainst the Judgement and decree dated 08'01-2007 made in o.s.No.s of 2oo1 on the file of the Speciar sessions Judge for Trial of cases Under SCs and STs (PoA) Act - cum - Vll Additional District and Sessions Judge, Ir4ahabubnagar.
Between:
...APPELLANTS/PLTFS
AND
(Appeal against R - 13 Dismissed lor default vide Court Ctrder dated 25-042016)
...RESPONDENTS
ASMP.NO:8 81 0F 2007)
Petition Under Section 151 CPCpraying that in the circumstancesstated in the affidavit filed in support of thepetition, the HighCourl maybe pleased to grant an ad-interim injunction restraining the respondents frcm raising structures on the Schedule A & Bproperties orin any manner dealing,//iththem, duringthe pendency of the present appeal in the interest of iustice.
ASMP.NO:1479 OF 2009)
Petition Under Section 151 CPCpraying that in lhe circumstancesstated in the affidavit filed in support of thepetition, the High Courtmaybe pleasedto vacate the interim ordersgranted inASIv1P.No.881 of2007 in A.S.No.229 of 2007 dated 11-09-2008.
Counsel for the Appellants : SRI.P.SHIV KUMAR
Counsel for the Respondent Nos.3, 4, 5, 8 &10: SRI.C.B.RAMMOHAN REDDY
Counsel for the Respondent No.7 : SRI.GADDAM SRINIVAS
Counsel for the Respondent No.14 : SRI.SHAIK SAIFULLAH
The Court made the following Judgment :-
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THE HONOURABLE SMT. JUSTICE P.SREE SUDHA
APPEAL SUIT No.229 of 2007
JUDGMENT:
This Appeal Suit is filcd agarinst the Judgmer-rt and Decree dated OS.O1.ZOO7 in O.S.No.S of 2001 passed by the learned Special Sessions Judge for Trial of Cases under S.Cs. and S.Ts (P.O.A) Act - cum VII Adclitional District and Sessions Judge, Mahabubnagar.
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names of his chilclrcninchrdrngplaintifl's and clctt ndants Their f:rthcr died irtlhe year 1962ancl after thc dcirth ol theirmother in the year1q82, thelr succ()edcd to all the properties of their father. Theirlatherhad also left sufficientamoLlut belore his death
anv Iegal Irro.ccdings.PlzLtrrtiffsand defendants signcdirl the said docurnertand given the same to Mohd l\bdttl t{aiThe Photoslal copresof the srricl documentsare gilcu to plaintilTs and dcfettdauts,but thc dclenclantsNo 1 to 5 hirvc not co- operated rt'iththe said eldersfor the partition ol r;ropcr[ies and or other Pretcxl.[nthe postponlng thc sittings ol1one mcanr.r'hilc, thc said Mohd.Abdul Hai died andthe health of other elder isnot goocl,as suchpartitioncould nt't bc tnade out through mediators.The p)arntiff No'4 also tned to convince de fendants No.1 to5 lo agrce for partition and give due shares to all the sisters,but the-v have not agreed,as s'.lch he has no other optionexceptto join r.vith plaintiffsNo' 1 to 3 and sought for partition. ThedefendantsNo'6 and 7 decidcdto sail with defendantsNo.1 to 5. The defendantsNo'1 and 2diverted Matruka funds andacquiredproperties at Hyc erabad at the cost of other shareholders The defendants No 1 to 5 have not shown the correctaccounts of rentsand not pa'ring the actual share to plaintiffsNo.1 to 3, but paying nomilal amount to plaintifls No.I to 3towarclstheir share out ol rents Though they are coLlectingmore than Rs.60,O00/- pcr rrronth,the dcfer-rclants No. 1 to 4art: paying Rs 6,000/ - per month to the plair-rtiff No.4 towards his share.Thedefendar-rLsiNo.1 Lo 4 are ascertaining that the said arrangementllras made duringthe
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pendency oF the partition, The plaintifls No.l to 3 and defendants.No.6 and 7 are having 1/171h share each. The plaintiff No.4 and defendants No. 1 to 5 are having 2/ ITth share each in th'e suit schedule properties. The plaintiffs finally demanded the defendants for partition and separate possession, but the defendants refused the same and thus plaintiffs hled suit for grant of preliminary decree for partition and separate possession of A and B - Schedule propcrties into 17 parts and allot L / 17ft share to plaintiffs No. I to 3 and 2 /17th share to plaintiff No.4.
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moncv or.i1llli1blc l)roperty.At that time,the defenclant No l aloncri as the marriecl llcrsonand all other r"'ere ut'rmarried 'lhc lamiiy of l{ajiAbdr,rl l(areem islarge and it is diificultto maintaitt the famil1'bv that time' During his lil-e time t{aji Abdul Kareem gavesome open place at Badepallyto tenants lor a nominai lcaseof Rs.6 to L5l- per month ancl maintarningfamily nith that rents. Thcdefendant No.1 performed thc marriagcs of plaintiffs No. 1 and2t'tt'L 14.04.1963after the death of their fathcr. The plot atMaclnapur viilage and shopsat Shadnagar r.r,ere sold at the timeof marriageof plaintiffs No 1 to 3 and defendants No.6 &7 and he alsogave cash equivalentto the value o[ their share.The defendantNo 1 ' performed their marriages bygivingRs.6,000/- cash and householdarticles apart from incurringtheir marriageexpensesby scllingaway the propertics atShadnagar and WanaparthyRoad'The marriage of plaintiffNo.3 took place on '27 'O7 '1976 and the marriage of defcndantsNo.6 & 7 tookplactr on 11'05' 1970 and 02.Ol .1972re sPectivelY.
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Hyderabad and u,orked for some time in Match factory. The marriage oI plaintiff No.4 took place on I 1.O3. l99Z at Hyderabad and after the family settlement, hc got Rs.35,0O0/cash and some portion of the plot No.29-53 at Badepallv along with defendants No.1 to 5. He sold away the said plot along u,ith defendants No.l to 5 in the year 1999-2000 and his share amount was given through demand draft. After the famil,y arrangement except the plaintiff No.4, all other brothers and unmarried sisters were residing in one house at Badepally, but did their business separately. The plaintiff No.4 settled at Hyderabad and constructed own house bearing No.9-li283/1/A at Golkonda, Hyderabad. As he was doing business at Hyderabad, he never turned up to Jadcherla. After the family settlement, defertdant No.2 asked the defendant No. I and their mother to execute a document in his favour regarding his share of property to confer the title. Accordingly, on 3I.12.i973 the defendant No. 1 and their mother executed deed of relinquishment of rights to the extent ol his share. After relinquishment he obtained construction permission from Grampanchayat Badepally and constructed shops rvith his onn amount in the share of his open place and doing business and let-out to others and collecting the rents from the tenants. The defendants No. I to 5 constructed the shops in their duc shares
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as pcr thcir(lollvcllicnc(l \vitll their own funds upto the year 1995. Thougl'rtl-re f:rmilv setLlcmcnt took place irL Lhe ycar 197O' thc namesol plainLills No 1 to 4 and the defen'1antsNo' 1 to 4 ancl 6 & 7\ cre appe aring Ln Grampanchayat records as Lhere was lto rnutationtook p1a'-e as per the family settlement' The defendantsNo.l to 5 also constructed theirresidentialhousein their respecrivcshates rlr-r ci residingin itThe defendantNo'3 u,as in needo1 money and u'as trying to obtain loanfrombanks and at therequestof defendantNo 3'the defendantNo l executed agilt cleed in tris favour to the extent cf his share and conferredtitle on his name,then the defendant No'3 obtained the loan bymortgaginghLs propertyand purchased a vehicle' SincelgSO,thedefendar-rtNolwasresidingatHyderabadand lookingafterhisbusinesswithhisSonsandresidingseparately. Their fathcrleft no fuuds asMatrukaproperty and no constructionwas made lhroughout his life time
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leased out and they are collecting rents and residing se parate l1'. The plaintiff No.4 left the Badepaliy srnce long Lime and after his separation the defendants No. 1 to 5 have resided together for some period and developed their share of propertv. As the properties of defendants No.l to 5 came to the main centre of Badepally village and it became prime location for business centre, the value of their properties increased. Therefore, plaintiffs colluded together and flled suit with false allegations. The defendants No. 1 to 5 further stated that the suit schedule properties were partitioned about 32 years back through oral family settlement in the year 1970. Since then, the defendants No. 1 to 5 are in separate possession and enjoyment of their respective shares. They developed their respective shares, constructed shops and residential houses in their respective shares and conducting the busiriess and eaming livelihood-
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constructed a Masjicl in il irrtl it is in existcnce atrd is undcr the control of thr socie t1'. ThcY stated that there rv:rs no matruka property in cxistencc, tl'r: parties to the suit are in separate possession and enjoymcrt ovcr their respectivt: shares, they devcloped tl-rcir shares and constructed the house and let-out the same , as such suit is rrot maintainable. Thr:y constructed shops in thcir respectivr' shares with their oll'n funds after obtaining propcr permission. The defendant No. I is having 11 shops and the: defendanttrlo 2 rs having 5 shops zrnd open land. Later the defendant No.2 r:onstructed four shops and open 1and. The dcfendant No.3 is havir-rg 10 shops in his share and had a residential house. The defendant No.4 is having shops and residential house and open 1and. The defendants No.1 to 5let out their respective shops 1tl the tenants and collecting their rents separately, as sucn [hey need not give any share to anybody including plairtilfs. The plaintiffs are no way concerned vr.ith the suit sr:heduled property and not having any right ir-r it ancl nol entitled fbr any share. Though the nominal entries rvere made in tl-re Clrampanchayat recc,rds, plaintiffs were not having an5, shar; m the suit schedule property as the mutatron of entries u.ere not took place in the records as per the partition. The plaintilfs ar,: tr_ving to take advantage of nominal entries and asking lbr partrtion and are also trving to create
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litigation. Though the elders advised them not to create anv litigation, they filed suit. Thereforc, requested the Court to dismiss the suit.
plaintifi No.4 is h:rving .1,'i7rhehare and the]'are entitled to take scparatc possessionol- t,l-rcrrrespectivc sharcsi t-t the plaint B- schedule opcn lartrl cxchtdingthe houses and Masjid and it was also made clear thalpiairttilfs are noL entitk]d for partltion of plaint A - Schedulcprol)(rrtyand dismissedttre suit to such an extent. Aggrieved bv thcsaid Judgment, 1fis' prsferredthe present appeal.
1 1. The appe llants /plainl iffsmainlycontendeCthat both A and B - Scheclule propertics are oneand [he same, inasmuchas A schedule proper[y is the constructedportions and whereasB schedule property is thc appurtenant openland. When plaintiffs entitled for their respectivesi-raresin the B -Scht:dule property, the trial Court deniecl their share in theA -Schedule property on the presumption that the shopshave been r:onstructed by the defendant No.1 with his olr,n fundsand the said decisionis erroneous. As defendanlNo. 1 is the eldermember of the family, approvals are given in his n:rme, but the trial Courtconsidering the said approvals clenieri Lheir right. The trialCourt wrongly placed reiiance on Ex.BS sale dced and Ex.B9 mortgage deed. The trial Court wrongl.y helcl that defendant No.1performed the marriages of their sistcrs, as such they are not entitled for any share in the A Schcrlule property. The trial Court also
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observed that plaintilfs have not made any objection for the construction of the house and Masjid as co_sharers, in fact they are not entitled for aly share. Therefore, requested the Court to set aside the .Iudgment of the trial Court.
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demolishedportions,z1cldl1i()llalaccommo<lations'zrs provided' He alsostalecl thal tl-rer'l-r lc<l sutt for canr:cllationo[ the gift deedson the groundth:Llclt'lcndant No lhas no irbsolute right to gift theshops to defet]rlantsNo'2 to 5'He admitted that defendantsNo-3ancl 5 zrrc having housesin Lhe (rpen spacein Sy.No.121,again he statccl t.hat hc did not know whether the openplace rvas leased out to many personsa nd when they re fused tovacate Lhe sanir:, suitswere filed and they went upto theHighCourt.itwasaisosuggestedthattheyapproached Grampanchayatfor changingthe names of some of the shops behind theback of delendar.r ts No' 1 to 5 and as <lefendants filed objectionpetition,it was kepLpending' but he denied the same'
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the Iiling of the suit and crcr:utecltrvo gift deeds aftcr the suit in his favour. Ilt: also sLatcd lh:ltin the ycar 1999, all the brothcrs including plaintiff No.4r:xt::cuted thesale deed in respectof properties sitr.rated in Sr,.No. 121. Theysold the sa.icl propertyfor about 20 or 21 lakhs.Thev have also paid the slrleproceeds to the sisters, but they have not obtainedany receipts.ltwas suggested to him that thclhave notpaid their share to the sisters, as such disputc arosebetween them, bul hc deniedthe same . In the year 1998, theycame to know that plalntiffs managed to mutate theirtlames inthe Panchayat Records. At present, defendant No.4 is the Grampanchayatmember,in the previous .term his wife uas the Grampanchayatmember.The name of defendant No. 1 is noted asPattadar in revenue records. The wife and children of def'endant No.lfiled an application to M.R.O for mutation of their names, butthey filed objection petition.
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No. i looked aftcr the lamily and pe rfcrrmed the marriages ol his sisters and brothcrs by selling a.r,ay some of the Matruka properties. Defendants further contended that they have paid cash to the sisters, but they have not obtained any receipts and no partition deed was executed among the brothers and sisters. It was also brought on record that the matter was referred to mediators for amicable settlement on 30.1O.1999, but defendants have not co-operated. The trial Court observed that as per the evidence of P.W. I , sisters were paid certain amount towards their share by him and defendants No. 1 to 5, but sisters have not entered into the witness box. The plaintiff No.4 has also taken cash towards his share in the property. The plaint A - Schedule property is the shops and plaint B - Schedule property is the open site. The main contention of the defendants is that the plaintiffs have not contributed anything for the construction of the shops and the shops were constructed after the death of their father, as such plaintiffs have no right or share in the plaint schedule shops.
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\'erc in Lh€ namc of .loli:.rd.rnt No.1 and he perlormccl the rnarriages ol srstcrs and l-lr-othcrs as per Exs.B 1 to }36- The case of the plaintilfs is that tl'rcir lbthcr left sufficicnt rnoney and that dele ndant No, 1 devclop,:d the propcrtv by u srng the said amount left by their fathr:r, but delendants lilcd trx.88 certified copy of the sale deed pertaining to the year 1 96 3 r,vhich shows that defendant No.1 sold a\vay one shop for Rs.4,00O/- and as per trx.89 he executcd mortgage deed in the year 1965 to meet his personal financial necessities. If at atl thcir lather left sufficient money, defendant No.1 would not have sold away the shops and mortgage the house property undr:r originais of Exs.B8 and 89 in the year 1963 and 1965 respectively and plaintiffs have not filed an1. material to show that their father left sufhcient amount. The trial Court also obsen,ed that as per the evidence of P.W. 1, dcfendant No. 1 sold arvay certain properties situated at Wanaparthy and Shadnagar when he performed the marriages cf plaintiffs No.l to 3, b and 7 in the year 1970 and, 1976. P.W.1 stated that in the year 1999, he along with dcfendant No.1 to 4 sold away certain properties without the knowlcdge of plaintiffs 1 to 3 and defendants No.6 and 7 and thus disputes arose between the them. D.W. 1 admitted in the cross-examination that in the year 1999, all the brothers have executed a s:r1e deed. The trial Court obserued
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that sons alone sold arvay the properties u,ith exclusion of thc sisters
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thc B Schr:rlrrle oper) lan(1. Plaintiffs filed suit lbr partition and crrntcndcd t)rzr[ shops 'rrrder A - Schedule propcrt]. \'cre construck:d s,ith thc fur-rds of Matruka propert), and they also slated that their fatl-rer left some amount, but the-' have not pl:rccd lrnt, cvidcncr: to substantiate their versron. Therefore, this Court finds no infirrnitr. in the Judgment of thc trial Court and it nceds lro intcrferencc.
O.S.No.5 of 2OO1. There sl'rall be no order as to costs.
Miscellaneous petition s pending, if any, shall stand
closed.
To
//TRUE COPY//
Sd/-B.S.CHIRANJEEVI JOINT REGISTRAR L;D SECTIOi{ OFFICER
SA
d
HIGH COURT
DATED:0910612023
JUDGMENT
AS.No.229 of 2007
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DISMISSING TT]E APPE,AL SI-IIT
WITIIOUT COS'[S.
(glfe.,id'j Ovt---*-n"a
[3208 I
HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD
FRIDAY, THE NINTH DAY OF JUNE
TWO THOUSAND AND TWENTY THREE
PRESENT
THE HONOURABLE SMT JUSTICE P.SREE SUDHA
APPEAL SUIT O:.229 OF 2007
Between:
l.Ameena Bai, Wo Late Md. lbrahim R:/o 15-8-133, Begum Bazar, Hyderabad-12.
2.Fareeda Bai, Wo Lte Abdul Rajjak R/o 22-6-882, Gruna Galli, Panjeysha, Hyderabad -2.
...APPELLANTS/PLTFS
AND
(Appeal against R - 13 Dismissed for default vide Court Order dated 25_042016)
...RESPONDENTS
Appeal Under section g6 of c.p.c., gainst the Judgement and decree dated 08-01-2007 made in o.S.No 5 of 2001 on th; fire of the sleciar sessions Judge foi Trial of cases Under SCs and STs (poA) Act - cum - VI Acjditionar Districi and Sessions Judge, Mahabubnagar.
This appeal coming on. for hearing and upon perusing the grounds of appeal, the Judgment and Decree of the Lower court and the materilr papirs in tne s,iii ,ni up91|g"!lS the arguments of SRt.p SH|V KUMAR, Advocate for tne nppeilant inJ of SRI.C.B.RAM I/OHAN REDDY, Advocate for the Respondent Nos_3, 4, S, S & 10 and of SRI.GADDAM SR|NIVAS, Advocate for the Respondent No.7 and of SRI SHAIK SAIFULLAH, Advocate for the Respondent No.14.
This Court doth Order and Decree as follows : -
Trial of cases under sc's and ST's (poA) Act - cum - v[ Additionar Di;trict and Sessions Judge, Mahabubnagar in O.S.No.S of 2OO1, dated 0g_01_2007 be and hereby is confirmed ; and
Sd/.B.S.CHIRANJEEVI JOINT REGISTRAR i/TRUE COPY// C!,
To
SECTION OFFICER
SA
b
l
HIGH COURT
DATED:0910612023
DECREE
AS.No.229 of 2007
DISMISSING THE APPI.],AT, STIIT
WITHOUT COSTS.
@c4'a y- aobp
2 issues framed by the court
Whether the appellants/plaintiffs are entitled to a share in the shops (A-Schedule property) constructed by the defendant after the father's death, when they did not contribute funds for construction?
Whether the trial court erred in granting partition only of the open land (B-Schedule property) and denying any share in the shops?
2 provisions across 2 enactments
Ameena Bai
Fareeda Bai
Nazma Banu
Abdul Satha (died) by LRs
Md.Idris
Md. Shabbir
P.Sree Sudha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
