SA/821/2012 of Pedasanaganti Lakshmi Narasimha Murthy Vs Pedasanaganti Ramachandra Rao (Died.) on 31 December 2012

JUDGMENT:

The plaintiff, who was unsuccessful in both theCourts below intends to file this second appeal. Theplaintiff is brother of the defendants 1 and 2. Thedefendants 3 to 5 are their sisters. The defendants 6and 7 are purchasers of Item No.3 from the firstdefendant. After death of the first defendant, therespondents 8 to 10 were impleaded as his legalrepresentatives. The plaintiff filed the suit for partition ofItems 1 to 3 of the plaint schedule property on theground that they were ancestral properties belonging tothe plaintiff’s father Subrahmanyam and that in theprevious suit in O.S.No.41 of 1971, on the file ofSubordinate Judge, Razole, and in the Partition Deed,dated 21.01.1977, fraud was played on the plaintiff.

The deceased first defendant opposed the suit on thepoint of limitation, on the principle of res judicata and onthe basis of previous Partition Deed, dated 21.01.1977,by which date the plaintiff was a major. After trial, boththe Courts below decided the suit against the plaintiff.

2. In this second appeal, it is contended by theappellant’s counsel that rejection of the appellant’sclaim for partition is not based on any legal principles.

3. Though by the date of filing of previous suitO.S.No.41 of 1971, the plaintiff was a minor representedby his father as guardian and subsequently after thedeath of father, the first defendant came on record asguardian for the plaintiff, the plaintiff became major bythe date of previous Partition Deed of the year 1977 anddecree in O.S.No.41 of 1971 in the year 1978. Theprevious Partition Deed was acted upon by the firstdefendant by selling one of the items, i.e., Item No.3allotted to his share to the defendants 6 and 7. As canbe seen from the judgments of the Courts below, thereis no dispute that in the previous partition, some excess land was allotted to share of the first defendant than theproperties allotted to other sharers. According to thefirst defendant, he was allotted some excess propertytowards his share, in order to discharge debts incurredby the deceased father, to perform marriage of thesister, who is the 5[th] defendant and to cover litigationexpenses in the previous suit O.S.No.41 of 1971. There is no dispute that the first defendant performedmarriage of the 5[th] defendant after incurring theexpenditure. The first defendant also discharged debtsincurred by his deceased father. Therefore, in thosecircumstances, the plaintiff cannot have any grievancefor excess property allotted to the first defendant in theprevious partition.

4. Virtually, the suit filed in the trial Court is onein the nature of re-partition by reopening the previouspartition. Such a suit filed in the year 2009 is beyondlimitation, as it is filed more than 32 years of theprevious partition. It is not as if the plaintiff couldunearth the alleged fraud only within three years of filingof the present suit in the trial Court. Viewed from any angle, the lower Courts rightly non-suited the plaintiff. Ifind no error or legal error committed by the Courtsbelow. I also find that no substantial question of lawarises for determination in this second appeal.

5. Accordingly, the Second Appeal is

dismissed. No costs.

______________________________

SAMUDRALA GOVINDARAJULU, J

Date: 31[st] December, 2012

KL

HON’BLE SRI JUSTICE SAMUDRALA

GOVINDARAJULU

KL

SECOND APPEAL No.821 of 2012

Date: 31[st] December, 2012