suit for partition - suppressing earlier partition - a conditional settlement for re-opening of earlier partition can not be considered and it can not rendered the earlier partition as not acted upon as there was overwhelm evidence for showing earlier partition was acted upon - Single judge committed error - and as such it was set aside= there is enormous evidence on record in order to show that earlier partition of the year 1953 was given effect to and the parties to the said partition have been in separate possession and enjoyment of their respective shares and some of the parties including the plaintiff have also disposed of the properties that fell to their share to third parties. Nextly they filed separate declarations before the Land Reforms Tribunal and the findings of the Tribunal have become final and hence he finally contends that the alleged partition agreement said to have been entered into between the plaintiff and the defendants in the year 1982 under Ex.A1 was not acted upon. he contends that the plaintiff suppressed the factum of earlier partition and in view of the overwhelming evidence in this regard, the plaintiff is not entitled to a decree as prayed for. Ex.A-1 kararnama (settlement) and since there was no coercion or compulsion, 1st defendant is bound by Ex.A-1. It is also further observed that 1st defendant had issued no notice denying Ex.A-1. The learned single Judge also found that 1st defendant in his evidence simply deposed that the plaintiff and defendants 2 and 3 have been aggrieved with the fact that the price of his land has increased and they wanted repartition and that he told that already he had partitioned his lands to his sons and if they agree, he had no objection and his sons did not agree for reopening the partition. The above factors already highlighted which were not considered by the learned single Judge, though on record, would only strengthens the contention of the 1st defendant that Ex.A-1 was acceptable subject to the approval of his sons and, therefore, he signed Ex.A-1 voluntarily. That means his signing on Ex.A-1 though voluntaily, was conditional. In view of the above important factors, we hold that there was earlier partition in the year 1953 and Ex.A-1 settlement is not binding. Further Ex.A-1 was entered into in the year 1982 and the suit was filed in the year 1986. Considering all these factors we hold that the finding of the learned single Judge in believing Ex.A-1 by not appreciating the crucial evidence both oral and documentary on record, merits only reversal. Hence we answer the issue in favour of the 1st defendant - appellant. For the foregoing reasons, we pass the order as under:- The impugned judgment of the learned single Judge is set aside and the LPA is allowed with costs.-2015 A.P.(2002) MSK LAW REPORTS


suit for partition - suppressing earlier partition - a conditional settlement for re-opening of earlier partition can not be considered and it can not rendered the earlier partition as not acted upon as there was overwhelm evidence for showing earlier partition was acted upon - Single judge committed error - and as such it was set aside=
there is enormous evidence on record in order to show that earlier partition of the year 1953 was given effect to and the parties to the said partition have been in separate possession and enjoyment of their respective shares and some of the parties including the plaintiff have also disposed of the properties that fell to their share to third parties. Nextly they filed separate declarations before the Land Reforms Tribunal and the findings of the Tribunal have become final and hence he finally contends that the alleged partition agreement said to have been entered into between the plaintiff and the defendants in the year 1982 under Ex.A1 was not acted upon.
 he contends that the plaintiff suppressed the factum of earlier partition and in view of the overwhelming evidence in this regard, the plaintiff is not entitled to a decree as prayed for.
Ex.A-1 kararnama (settlement) and since there was no coercion or compulsion, 1st defendant is bound by Ex.A-1. It is also further observed that 1st defendant had issued no notice denying Ex.A-1. The learned single Judge also found that 1st defendant in his evidence simply deposed that the plaintiff and defendants 2 and 3 have been aggrieved with the fact that the price of his land has increased and they wanted repartition and that he told that already he had partitioned his lands to his sons and if they agree, he had no objection and his sons did not agree for reopening the partition. The above factors already highlighted which were not considered by the learned single Judge, though on record, would only strengthens the contention of the 1st defendant that Ex.A-1 was acceptable subject to the approval of his sons and, therefore, he signed Ex.A-1 voluntarily. That means his signing on Ex.A-1 though voluntaily, was conditional.
In view of the above important factors, we hold that there was earlier partition in the year 1953 and Ex.A-1 settlement is not binding. Further Ex.A-1 was entered into in the year 1982 and the suit was filed in the year 1986. Considering all these factors we hold that the finding of the learned single Judge in believing Ex.A-1 by not appreciating the crucial evidence both oral and documentary on record, merits only reversal.
 Hence we answer the issue in favour of the 1st defendant - appellant.
 For the foregoing reasons, we pass the order as under:-
The impugned judgment of the learned single Judge is set aside and the LPA is allowed with costs.-2015 A.P.(2002) MSK LAW REPORTS

Popular posts from this blog

APEX COURT DIGEST - Jan.2017 [6]

Delhi Rent control Act sec.14 - Rent Control Case - Eviction Petition - The landlord sought the eviction of the tenant  on  the  ground  that  the tenant had sub-let the premises to his son-in-law  in  contravention  of Section 14 of the Delhi Rent Control Act, 1958 (hereinafter referred  to  as ‘the Act’).  -  whether  he  was doing business along with his father-in-law or independent of him,  i.e. whether  he  was  doing  business  exclusively  behind  the  façade   of   a  partnership or as a genuine partner.  It is an  uncontroverted  fact  before  us that the landlord’s permission in writing was  not  obtained  before  the  tenant had allowed the alleged sub-tenant to occupy the shop -  the Rent Controller clearly found that the son-in-law had been put  in  possession of the shop in pursua...
Read more

Writ - praying to declare that explanation to Section 6 of the amendment Act of 39 of 2005, Explanation: for the purpose of this Section partition means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court as unconstitutional and the same is liable to be struck down and etc; -2015 KAR(2015) msklawreports

"(i) Whether  Section 6  of the Hindu Succession Act, 1956, as amended by the Amendment Act , 2005 is prospective or retrospective in operation? (ii) Whether  Section 6  of the Hindu Succession Act, 1956 as amended by the Amendment Act , 2005 applies to daughters born prior to 17.6.1956? (iii) Whether  Section 6  of the Hindu Succession Act, 1956 as amended by the Amendment Act , 2005 applies to daughters born after 17.6.1956 and prior to 9.9.2005? (iv) Whether  Section 6  of the Hindu Succession Act, 1956 as amended by the Amendment Act , 2005 applies only to daughters born after 9.9.2005? (v) Whether the decision of the Division Bench in the case of Vaishali Ganorkar is per in curium of Gandori Koteshwaramma and others?"   In addressing an argument that the Explanation to  Section 6  clearly provides that partition means any partition made by execution of a deed duly registered under the  Registration Act , 1908...
Read more

Or.39, Rule 1 & 2 and Sec. 151 and sec.94 of C.P.C - Police aid when to be granted - hear both parties when resisted - to avoid dispossession of actual possessor with the help of police aid - identify the property before issuing of police aid with the help of advocate commissioner if necessary - since the defendant pleaded that before the filing of suit and after filing of the suit ,he never trespassed into the suit schedule property nor violated interim injunction order - even though no evidence of violation of injunction not filed , the lower court feels that no prejudice would be caused to the respondent when police aid is granted -2013 A.P. msklawreports

filed the I.A.No.175 of 2010 for granting police aid on the ground that the order of ad-interim injunction could not be implemented as the petitioners involved in violating it. In particular the petitioner has not filed any document to show that the injunction granted by this Court is being violated or the respondents damaged his quarry It is the case of the respondents that they did not trespass into suit schedule property before or after the injunction is granted.  What that is the case of the respondents, this Court feels that no prejudice would be caused to the respondents if the police aid is granted to implement the order of this Court. "  the Court below granted the police aid aggrieved by which the present C.R.P. has been filed However, whereas great caution is to be taken for granting ex parte ad-interim injunction equal measures are to be taken while granting police aid to enforce that order.   Under the guise of an order of ad-interim i...
Read more