Model Judgement for Partition Suit.

IN THE COURT OF THE JUNIOR CIVIL JUDGE, MEDCHAL

Present: Palakurthi Kiran
O.S.NO.133 OF 2015
BETWEEN:

Rajani .......Plaintiff
And
Rajeev & others .......Defendants
That the Plaintiff filed this Suit for Partition and Separate Possession of her 7/36th share (1/6th
Share + 1/36th ) in the Suit schedule properties.

Plaintiff’s case as per Plaint:

1. That one Ragavaiah and Seethamma are Hindu wife and husband. Out of their wedlock, they
are blessed with five children. Of which, three are sons and two are two daughters. The names
of male children are: Ram, Lakshman, Raju and female children names are: Rajani and Roja.

2. That the Joint family coparcenary of Late Ragavaiah by way of inheritance acquired ten
acres agriculture land whereas five acres mango garden is acquired with the aid of funds
secured from the crop yielding of Agriculture land.

3. That the Raghaviah during his lifetime performed the marriages of his two daughters and
thereupon they left to their respective in-law's house. But, they used to take her due share in the
yields of the Suit Schedule Properties. On a fateful day, Ragavaiah and his elder son met with
an accident at Shameerpet.

4. That the plaintiff to meet the educational needs of her children on 10/11/2016 requested his
two brothers to partition the Suit schedule properties and give her due share. However, it was
declined by them. Hence, she filed the present suit for partition seeking allotment of her share.

Defendant’s case as per Written Statement:

5. That the defendants admitted the relationship of the parties. But stated that Plaintiff and her
other sister were given their due share at the time of their marriages. Further, marriages are
also performed in a grand manner by spending agood amount of money. As such, they were
never with any amount of money towards share. As such, they are not entitled to any share over
the Suit Schedule Properties. Hence, the suit is not maintainable.

6. It is also averred that Plaintiff are not in possession of the Suit Schedule Properties. Even the
revenue records show that defendants are the Pattedhars and possessors of the Suit Schedule
Properties. In fact, their names got mutated around fifteen years back. As such, their claim is
barred by limitation.
7. It is averred that Mango Garden is not the joint family property. It is also averred that suit is
bad for non-joinder of necessary parties as children and wife of late Ram are not added as
parties to the suit.

8. That the fixed Court-fee of Rs. 200/- Paid by the plaintiff is not correct. Hence, sought for the
dismissal of the suit.
9. That this Court having perused the pleading on either side impressed upon them the need for
settling the dispute between parties by resorting means available under S.89 CPC,1908. But
they evinced no interest and as such this Court constrained to settled the following issues for
trial.

a. Whether the suit bad for non-joinder of necessary parties?

b. Whether the Suit Schedule properties are Joint Family Properties of Late Ragavaiah?
c. Whether the plaintiff is entitled to Share in the Suit schedule properties?
d. What is the share of the plaintiff?
e. Whether the suit is barred by limitation?
f. Whether the Court Fee Paid is sufficient?
g. To what relief?

Evidence on record:
10. The plaintiff in support of her case examined herself as PW1 and marked Ex. A1 to A3. On
the other hand, D1 examined himself as DW1 and marked nothing.

11. At the outset, it must be noted that this Court in view of allowing the petition filed by the
plaintiff to add the children and wife of her brother Late Ram, hardly see any reason to speak on
the issue no.1.

Issue no.2: Whether the Suit Schedule properties are Joint Family Properties of Late
Ragavaiah?
12. PW1 testifies that Suit Schedule properties are joint family properties. In support of the
same,she placed reliance on the revenue records. It is evident from the revenue records
originally the name of her father is entered in the revenue record and subsequently,the name of
the defendant no.1 is mutated. This has been the scenario for twenty years. It is admitted fact
that the Joint family of Late Ragavaiah and upon his demise his sons have no other means of
living except to depend upon the suit schedule properties. It is also not at dispute that the Suit
agriculture land is acquired by the Joint family of Late Ragavaiah in view inheritance. Similarly,
it is also not under dispute that Mango Garden is acquired by the Joint family of Late Ragavaiah
during the lifetime of the Late Ragavaiah. There is no averment to show that Mango Garden is
acquired from the own funds of the defendants/brothers nor the late Ragavaiah or Late Ram
executed will in their favour to the extent of their entitlements. It is not the case of the
defendants that there was partition amongst the coparceners of the Late Ragavaiah. The case
of the defendants is that plaintiff share got settled in view of theperformance of her marriage.
Thus, the defence of the defendant is ouster.

13. In view of the defence of Ouster pleaded by the defendants/brothers’ burden lies upon them
to show that how they are enjoying Suit schedule properties exclusively. To show that there was
an intentional relinquishment on part of the plaintiff defendants are taking advantage of
long-standing revenue entries recorded in their favour. Apart from that, they state that Patta
Pass books and title deeds are issued in their favour and they also obtained crop loans in their
name. It is a settled rule of law that as between co-heirs or joint owners, there must be evidence
of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of
them to the knowledge of the other to constitute ouster. Mere possession and enjoyment of the
profits of the suit land for a long period by the defendants will not, therefore, constitute ouster. It
is not shown from the evidence whether revenue entries recorded and proceedings recorded in
their favour were done adverse to the right of the plaintiff and such adverse claim was duly
recognized by the plaintiff for an uninterrupted period of twelve years openly. There is no
document showing that entire records funds relating to suit schedule properties are enjoyed by
them in exclusion of other joint family members interest especially in view of the absence of
partition amongst other joint family members. It is also admitted by the DW1 that there is no any
kind notice to the plaintiff about the enjoyment of the Suit schedule properties in exclusion of her
interest. It can be seen from his cross-examination. Hence, this court answers issue no.2 in
favour of the plaintiff and against the defendants.

Issue no.3: Whether the plaintiff is entitled to Share in the Suit schedule properties?
14. In view of finding at issue no.1, this Court is of the opinion that PW1 is entitled to share in
the Suit Schedule properties. For the simple reason, PW1 got married subsequent to 1986 and
as such, she becomes a coparcener in view of Sec. 29A (A.P Amndt dt: to 05/09/1985). Hence,
this court answers issue no.3 in favour of the plaintiff and against the defendants.

Issue no:4: What is the share of the plaintiff?

15. Thus, the Plaintiff filed this Suit for Partition and Separate Possession of her 7/36th share
(1/6th Share + 1/36th) in the Suit schedule properties. There are six coparceners in the joint
family of Late Raghaviah. For the reason, Late Raghaviah has three sons and two daughters to
Late Ragavaiah. As he died intestate his share devolves upon his Wife and five children D4
equally as per Sec. 6(3) of Hindu Succession Act i.e. share of a deceased coparcener.
Therefore 1/6th shall be divided into six shares. Thus, PW1 get a7/36th share in the Suit
Schedule properties. Hence, this court answers issue no.4 in favour of theplaintiff and against
the defendants.

Issue no.5: Whether the suit is barred by limitation?

16. In view of finding at issue no.1, it can be concluded that the date of limitation for filing suit for
partition commences consequent to denial to give due share of the plaintiff. As such, the time
limitation to file suit for partition is twelve years from the date of denial of share as per Art.110 of
the Limitation Act, 1963. Thus, the suit is filed within the time limitation. Hence, this court
answers issue no.5 in favour of the plaintiff and against the defendants.
Issue no.6: Whether the Court Fee Paid is sufficient?
17. In view of finding at issue no.1 that the suit schedule properties are joint family properties,
the possession of one of the coparceners is the possession of others too. As such, the
Court-fee of Rs.200/-(Rupees Two hundred) paid under S.34(2) of the A.P.Court Fee and Suit
Valuation Act is proper. Hence, this court answers issue no.6 in favour of the plaintiff and
against the defendants.

Issue no.7: To what relief?

18. In view of above findings, a preliminary decree is passed with costs in favour of the plaintiff
for partition of plaint schedule property by allotting 7/36th to her.
(Dictated to Personal Assistant after his transcription, corrected and pronounced by me on this
the 25th day of March 2016).

Junior Civil Judge, Medchal

APPENDIX OF EVIDENCE:
Witnesses Examined:
For Plaintiff:-For Defendants:-
PW.1: Rajani DW.1: Rajeev
Exhibits Marked:-
For Plaintiff: -
Ex.A1 is the Certified copies of Khasra Pahani
ExA2 is the Certified copy of the Phani of the year 1990 to 1995.
ExA3 is the Certified copy of the Phani (Village Account no.3) of the year 2006 to 2015.
For Defendants: -

NIL