1 AS : 8/2014
IN THE COURT OF THE III ADDITIONAL DISTRICT JUDGE :: RAJAMPET
Present:- Smt. C.SATYA VANI
III Additional District Judge, Rajampet.
Friday, the 22nd day May, 2020.
APPEAL SUIT NO : 8 OF 2014 and
Cross Appeal N0.01/2016 and Cross Appeal No.02/2016
Anthati Lakshminarayana s/o A.Venkata Chalapathi, aged 36 years, Hindu, cultivation, residing at 1/32, Anthativariveedhi, Pullampet post , Pullampet Mandal,
Kadapa District :: Appellant/Plaintif
Vs
1: Dr.Anthati Soma Keereti s/o Krishna Murthy, aged 44 years,
Hindu, Doctor, resident at plot No.101, Srivari mansion, Yasoda
Nagar, K.T.road, Tirupathi Chittoor District 2: Dr.Anthati Soma Keerthi s/o Krishna Murthy, aged 40 years,
Hindu, Doctor, working as Doctor in Bollineni Super specialty hospital, Dargamitta Nellore town Potti Sreeramulu Nellore
District 3: Anthati Padmavathi w/o A. Krishna Murthy,aged 64 years,
Hindu, house wife, resident of at plot No.101, Srivari Mansion,
Yasoda Nagar, K.T.road, Tirupathi Chittoor District 4: Kuladevi Saradha w/o K.Rupendra Road, aged 40 years,
Hindu, house wife, resident at D.No.6/392/B, Manoj complex,
Tilak road, Tirupathi, Chittoor District 5: Anthati jayamma w/o A.A.Chandra sekhar, aged 52 years
Hindu, house wife 6: Anthati Sunitha w/o J.Murali, aged 36 years, Hindu, house wife 7: Anthati Revathi d/o late A.Chandra sekhar, aged 33 years, Hindu 8: Anthati Venkatachalapathi s/o late A.Obaiah, aged 63 years,
Hindu, cultivation 9: Anthati Jaya Ravichandra s/o A.Venkata Chalapathi, aged 63 years, Hindu, cultivation, 10: Malisetty Santhamma w/o M.Raja Rao, aged about 60 yeaars,
Hindu, house wife, residing at c/o at plot No.101, Srivari
Mansion, Yasoda Nagar, K.T.road, Tirupathi, Chittoor District
Having died her legal heirs R20 to R22 are added 11: The Manager, Bharathi Airtel Limited A.P.circle office 6th floor, Splendid tower, Opp: Begumpeta police station, 2 AS : 8/2014
Begumpet , Hyderabad 12: The Manager, TATA Tele service Limited A.P circle Opp: LB stadium Nampalle, Hyderabad 13: Rachapuri Tathaiah s/o R.Ankaiah,aged 39 years, Hindu, cement Achulu shop, Opp: Rice Mill near Govt. hospital
Pullampet post, and Mandal Kadapa District 14: Devarakonda Narasimhulu s/o D.Obaiah, aged 45 years,
Hindu, brick business, near Sivaparvathi school, Pullampet post and Mandal, Kadapa District 15: Govt of A.P represented by the District Collector, Kadapa 16: The Revenue Divisional Officer, Rajampet post Kadapa District 17: Chinnapureddy Sumathi w/o Rajasekhar Reddy, aged 32 years, Hindu, resident of Vathaluru village h/o
Timmareddipalli, Goparapuram post of Pullampet Mandal,
Kadapa District 18: Konde Narendra Babu s/o Subbarayudu, aged 28 years,
Hindu, resident of Eedigapalli village of Vathaluru village and post , Pullampet Mandal, Kadapa District 19: Kollam Malavika w/o Gangi Reddy, aged 25 years, Hindu, resident of Mallemvaripalli village of Vathaluru village and post Pullampet Mandal, Kadapa District 20: Malisetty Umadevi w/o Dr.A.S,.Keerthi,aged 46 years, resident of Plot No.101 Srivari Mansion, Yasoda Nagar,
K.T.road, Tirupathi Chittoor District 21: Malisetty Amrutha Narasimhulu s/o M. Raja Rao, aged 45 years, Bowri power middle east FZCO , 1/151, Techno HUB,
Dubai, silicon Oyasis, Dubai, UAE 22: Malisetty Lathadevi w/o S.M. Prabhu ram, aged 44 years,
Hindu, resident of D.No.4/805/A,St. Maratha street,Gremspet
Chittoor post and District .Pin.517002.
( Respondents No.17,18 and 19 were impleaded as per orders in I.A.No.453/2014, dated: 18.8.2018) (Respondent No.10 was died and her legal heirs R20 to R22 are added as per orders in I.A.No.576/2017,dated: 5.7.2018) :Respondents/Defendants
On appeal against the decree and Judgment made in
O.S.No.66/2008 , dated:7.12.2011 on the file of
3 AS : 8/2014
Senior Civil Judge Court, Rajampet
Between
Anthati Lakshminarayana : Plaintif
And
1: Dr.Anthati Soma Keereti 2: Dr.Anthati Soma Keerthi 3: Anthati Padmavathi 4: Kuladevi Saradha 5: Anthati jayamma 6: Anthati Sunitha 7: Anthati Revathi 8: Anthati Venkatachalapathi 9: Anthati Jaya Ravichandra 10: Malisetty Santhamma died and her L.Rs.R17 to R19 added 11: The Manager, Bharathi Airtel Limited, Hyderabad 12: The Manager, TATA Tele service Limited Hyderabad 13: Rachapuri Tathaiah 14: Devarakonda Narasimhulu 15: Govt of A.P represented by the District Collector, Kadapa 16: The Revenue Divisional Officer, Rajampet : Defendants CROSS APPEAL NO : 1 OF 2016
1) Dr. Anthati Soma Kireeti.
2) Dr. Anthati Soma Keerthi.
3) Anthati Padmavathi.
4) Kuladevi Saradha.
... Appellants/Defendants 1 to 4
- Vs -
1) Anthati Lakshminarayana
2) Anthati Jayamma
3) Anthati Sunitha.
4) Anthati Revathi.
5) Anthati Venkata Chalapathi.
6) Anthati Jaya Ravichandra.
7) Malisetty Santhamma
8) The Manager, Bharathi Airtel Limited, Hyderabad.
9) The Manager, Tata Tele Service Limited, Hyderabad.
10) Rachapuri Rathaiah.
11) Devarakonda Narasimhulu.
4 AS : 8/2014
12) Government of Andhra Pradesh, rep. by The District Collector, Kadapa.
13) The Revenue Divisional Officer, Rajampet.
… Respondents/Plaintif/Defendants 5 to 13
An appeal against the Decree and Judgment in O.S.No.66/2008 on
the file of Principal Senior Civil Judge's Court, Rajampet dt.
07.12.2011
CROSS APPEAL NO : 2 OF 2016
1) Anthati Venkata Chalapathi.
2) Anthati Jaya Ravichandra.
... Appellants/Defendants 8 & 9
- Vs -
1) Anthati Lakshminarayana
2) Dr. Anthati Soma Kireeti.
3) Dr. Anthati Soma Keerthi.
4) Anthati Padmavathi.
5) Kuladevi Saradha.
6) Anthati Jayamma
7) Anthati Sunitha.
8) Anthati Revathi.
9) Malisetty Santhamma
10) The Manager, Bharathi Airtel Limited, Hyderabad.
11) The Manager, Tata Tele Service Limited, Hyderabad.
12) Rachapuri Tathaiah.
13) Devarakonda Narasimhulu.
14) Government of Andhra Pradesh, rep. by The District Collector, Kadapa.
15) The Revenue Divisional Officer, Rajampet.
… Respondents/Plaintif/Defendants 1 to 7 & 10 to 15
An appeal against the Decree and Judgment in O.S.No.66/2008 on
the file of Principal Senior Civil Judge's Court, Rajampet dt.
07.12.2011
This Appeal and Cross Appeal No.1/2016 and 2/2016 are coming on 19.3.2020 for final hearing before me in the presence of Sri
Shaik Shaw, Advocate for appellant/plaintif, Sri R.Naga Prasad, Advocate for R1 to R4,Sri K.S.Narasimha Reddy, Advocate for R5 to R7, Sri K.Ravi
Sankar, Advocate for R8 and R9, and Respondents 10 to 14,o R17 and R.19 5 AS : 8/2014 were remained exparte and the Assistant Government Pleader for R15 and
R16 and of Sri Subhan Bande, counsel for R20 to R22 in main appeal i.e.,
AS No.8/2014 and Sri G.V.Kalyan Reddy, Advocate for Appellants /D1 to
D4, Sri Shaik Sha, Advocate for Respondent No.1, Sri K.S.Narasimha
Reddy, Advocate for R2 to R4,Sri M.V.Bali Reddy, Advocate for R5 and R6,
R7 to R11 were remained exparte and the Assistant Government Pleader for R12 & R13 in Cross Appeal No.1/2016 and Sri M.V.Bali Reddy, Advocate
for Appellants/D1 and D2,Sri Shaik Shaw, Advocate for Respondent No.1,
Sri R.Naga Prasad, Advocate for R2 to R5, Sri K.S.Narasimha Reddy,
Advocate for R6 to R8, R9 to R13 were remained exparte and the Assistant
Government Pleader for R14 & R15 in Cross Appeal No.2/2016 and after lock down in view of Covid-19 and in view of ROC.No.192/SO/2020 dated:
26.3.2020 and thereafter in view of ROC.No.192/SO/2020,dated: 15.4.
2020, ROC.No.192/SO/2020,dated: 21.4.2020 and ROC.No .192/ SO/ 2020, dated: on 4.5.2020 and the matter having stood over for consideration till this day, this court delivered the following:-
:: C O M M O N J U D G M E N T ::
This is an appeal filed by the plaintif and both cross
appeals filed by D1 to D4 and D8 and D9 respectively in O.S
No.66/2008 on the file of Principal Senior Civil Judge's Court,
Rajampet aggrieved over the Decree and Judgment dated
7.12.2011 when the suit was decreed partly by the trial court by
allowing the appeal.
2. The appellant in AS No.8/2014 is a plaintif and the respondents are the defendants in OS No.66/2008 For the sake of convenience the parties are referred to as plaintif and defendants.
6 AS : 8/2014
3. The plaintif filed the suit before the trial Court to pass preliminary decree and judgment for partition of Plaint A and B Schedule properties into 48 equal shares by metes and bounds and allot 5 such shares to the plaintif, taking into the good and bad qualities of the properties and put the plaintif in separate possession of the same and for costs of the suit.
4. The case of the plaintif is as follows : -
It is pleaded in the plaint that the grand father of the plaintif by name Anthati Obaiah died in or about 1962, grandmother died in 1982 and both of them died intestate leaving behind 3 sons namely
A.Krishnamoorthy, A.Chandrasekhar and A.Venkata Chalapathi (D8) and one daughter by name M.Santhamma (D10). The eldest son of A.Obaiah died intestate leaving behind the defendants 1 to 4 as his legal heirs. The 2nd son A.Chandrasekhar died intestate in the year 2007 leaving behind the defendants 5 to 7 as his legal heirs. The plaintif and 9th defendant are the sons of 8th defendant. The 1st son by name A.Krishnamoorthy worked as a teacher in various placed in Chittoor District on account of his job and was away from the suit properties and finally settled at Tirupati and he died at Tirupati. The remaining brothers late A.Chandra Sekhar and
A.Venkata Chalapathi continued to look after the cultivation of their joint family landed properties and business. The joint family properties were managed by A.Chandra Sekhar till his death and after him, the 5th and 8th defendants were managing the joint family properties. It is further contended in the plaint that the plaint schedule properties are ancestral and some of them were acquired from out of the joint family income from agriculture and business, in the name of three brothers i.e.,
A.Krishnamoorthy, A.Chandrasekhar and A.Venkata Chalapathi. The father of the plaintif did liquor and arrack business and out of the income, his 7 AS : 8/2014 father also used to purchase the properties in his name and his brothers names. The plaint schedule properties are the joint family properties of plaintif and defendant and they have been enjoying their respective shares.
It is further stated that defendants 1 to 4 are entitled to 15/48th share being the legal heirs of A.Krishnamoorthy, D5 to D7 are entitled to 15/48th share being the legal heirs of A.Chandrasekhar. The plaintif is entitled to 5/48th share and the remaining 10/48th share goes to
D8 and D9 and D10 is entitled to 3/48th share in the plaint schedule properties. There are no debts due by the joint family. Due to diferences among the woman folk, the three branches of joint family properties are residing separately. There are no other immovable properties to be divided as per the knowledge of the plaintif.
Further pleaded that D11 and D12 are having their transmission towers in Item No.16 to 18 of Plaint A Schedule property and each of them are paying monthly rent of Rs.3,000/- to the 5th defendant.
Likewise D13 and D14 are having cement bricks manufacturing units in
Item No.13, 19 & 20 of the Plaint A Schedule property and D13 is paying monthly rent of Rs.1,500/- and D14 is paying Rs.1,250/- per month to the 5th defendant directly. The 5th defendant taking advantage of the fact that her husband had executed lease agreements on behalf of joint family in favour of D11 to D14, the 5th defendant is receiving monthly rents after the death of her husband, in which the plaintif is entitled to 5/48th share.
Hence, the defendants 11 to 14 are added as Performa parities, even though no relief is sought against them.
Further states that the property in Sy.No.58/2A i.e., Item No.21 was purchased in the name of late A.Chandra Sekhar out of the joint family funds and it has been acquired by 15th defendant through 16th defendant under compulsory acquisition for Indian Railways and the 8 AS : 8/2014 compensation for the same is payable to the entire joint family members including the plaintif as she got a share in it. The 5th defendant taking advantage that the sale deed for the said property stands in the name of her husband, she is seriously trying to receive the entire compensation without the consent and knowledge of other sharers. Thus, the plaintif added D15 and D16 as necessary parties to protect the plaintifs legitimate share of compensation for the acquisition of land in
Sy.No.58/2A.
Further the plaintif stated that defendant 1 to 10 have developed hatred against the plaintif and are not giving him any money or property for settlement in life and when he demanded, the defendants turned a deaf ear, as such it is no longer safe to continue the joint family and the defendants 5 and 8 are appropriating the income of the joint family and causing loss to the plaintif. The plaintif orally and mediations through elders demanded the defendants several time for division of the properties, but D5 and D8 turned a deaf ear. Hence, the suit for partition and separate possession of 5/48th share.
5. The 1 st defendant filed written statement, which was adopted by D2 to D4, D8 to D10.
The contentions of the defendants in brief are as follows : -
The defendants admitted the relationship set out in the plaint.
They also admitted that some of the properties shown in the plaint are ancestral and other properties are acquired from out of the income derived from joint family agriculture and business. They also admitted that they are in joint possession and enjoyment of the schedule properties and they got right and title over the same. The defendants denies that D2 to D4,
D8 to D10 developed hatred towards the plaintif and are not co-operating for the settlement. They stated that they have also demanded for partition 9 AS : 8/2014 of the joint family properties through mediations, but D5 to D7 turned deaf ear and refused for settlement. It is further contended that D1 to D4 and
D8 to D10 have joint right in the schedule properties.
6. The 5th defendant filed a separate written statement, which was adopted by D6 & D7.
The contentions of the defendants in brief are as follows : -
The 5th defendant denied the allegations mentioned in Para
No.4 that husband of D5 and father of the plaintif were living together and looking after cultivation and doing joint family business and that the so called joint family properties were being managed by the husband of D5.
It is admitted that Krishnamoorthy retired as Teacher and settled at
Tirupati, where he died. It is also admitted that some of the suit properties are ancestral, but denies that Krishnamoorthy, Chandrasekhar and father of plaintif acquired some of the properties from out of the joint family income. Those properties were purchased in the name of the respective persons by their own funds. It is false that the plaintif’s father did liquor business and from out of the income, he used to purchase some properties in his name and others. It is also false that all the suit properties are joint family properties. The shares specified in Para No.7 are incorrect. It is also denied that D11 and D12 are tenants of the husband of D5 and Item
No.16 to 18 are leased out and it is admitted that only Item No.18 is leased. It is false that the husband of D5 executed lease deeds on behalf of joint family properties. The defendants 13 and 14 are tenants of the 5th defendant in respect of suit schedules items 19 and 20 and the plaintif has nothing to do with them. All other allegations in the plaint are false.
It is contended that B schedule house properties shown as items 1 to 5 are ancestral and originally belongs to Venkata Subbaiah, grandfather of the plaintif and they are to be partitioned. Item No.6 of the 10 AS : 8/2014
B Schedule situated at Tirupati is the exclusive property of D5, which was purchased by her late husband Chandra Sekhar under a registered sale deed in the year 1981 with his own earnings. Likewise, suit A Schedule items 3, 6, 11 and 16 to 21 are the self acquired properties of the husband of D5, who purchased them with his own earnings under registered sale deeds. The husband of D5 resided in Item No.5 and father of plaintif resided in Item No.1 of B schedule properties. All the three brothers referred above had orally partitioned their landed property about 30 years ago, which was evidence by a pattadar passbooks and title deeds issued in their favour, in which item no.7 and 8 of A schedule properties fell to the share of husband of D5. Item Nos. and 13 were purchased by
Chalapathy with his own funds under registered sale deed and they are his exclusive properties. Item No.14 and 15 fell to his share in the said oral partition, for which pattadar passbook and title deeds were issued.
Krishnamoorthy had purchased Item No.2 to an extent of 10 cents out of 48 cents and Item No.6 with his own earnings under registered sale deeds and as such they are not to be partitioned. Apart from it the said
Krishnamoorthy got items 4, 5, 22, 29 to 31 towards his share in the oral partition., for which pattadar passbooks and title deeds were issued and
Items 23 to 28 are left unpartitioned.
It is further contended that Chandrasekhar and another purchased land in Sy.No.58/2 of Pullampet village jointly and sold the same to others under diferent sale deeds in the year 2004 and 50 cents was acquired by Government for highway and compensation was paid by way of cheques in their names. The Government also paid compensation for one acre of land in items 1 and 3 of schedule property by the government to Chalapathi for land in Item No.1, Krishnamoorthy for Item No.2 and
Chandrasekhar for Item No.3. Chalapathi, one of the brothers sold his self acquired land in Sy.No.276/1 to one Kesineni Narayanamma and house site 11 AS : 8/2014 in Avilala area of Tirupati Town in the year 1997. Chalapathi had income from his liquor/brandi shop and rents from 6 bunks, which were leased out in Item No.13. Thus, the above items are self acquired properties and each of the three brothers are not available for partition. Defendant No.10 is not entitled to a share in the ancestral properties as she was married long prior to the Hindu Succession Act and therefore prayed that to dismiss the suit with costs.
7: Respondent/D15 and D16 remained exparte before trial court.
8. Basing on the above pleadings, the following issues were settled by the trial Court :
1) Whether the plaintif is entitled for partition of plaint schedule property as prayed for?
2) To what relief?
9. To prove the case of the plaintif, the plaintif himself examined as PW1 and two other witnesses as PW2 and P3 and Ex.A1 to
Ex.A24 were marked.
10. On behalf of defendants, DW1 and DW2 were examined
Ex.B1 to Ex.B10 were marked.
11. On appreciation of the oral and documentary evidence, the trial Court decreed the suit partly passing preliminary decree for partition of Item No.23 to Item No.28 of A Schedule and Item No.1 to Item
No.5 of B Schedule into 48 equal shares and allot 5 such shares to plaintif by metes and bounds and the suit against the remaining items of plaint A and B Schedule is dismissed, without costs. Aggrieved over the same the plaintif preferred appeal the following grounds of appeal :
12. The decision of trial Court so for as disallowing for partition of Items 1 to 22 of A Schedule and Item No.6 of B Schedule, is against Law 12 AS : 8/2014 weight evidence and probabilities of the case and the same is vitiated by several illegalities and irregularities. The trial Court misdirected in appreciating the facts and decided the matter against the plaintif in dismissing the claim of plaintif in A and B Schedule properties and thereby, committed error of Law and facts. The trial Court Judgment is basing on assumptions and presumptions, which resulted dismissing of the plaintif claim and favouring to D5 to D7. The trial Court had committed serious error law and facts while dismissing the claim of the plaintif. The approach of the trial Court to the case of the plaintif had caused substantial prejudice even though the same is amply demonstrated by the evidence and exhibits. The trial Court ought to have accepted the oral and documentary evidence of plaintif and ought to have rejected plea of alleged oral partition of DW2 set out by D5 to D7. The approach of the trial Court for refusal for partition of Items 1 to 22 of A Schedule and Item 6 of B Schedule is not in accordance with law and wholly depend on the case of D5 to D7, who have set up their case on oral partition efected 30 years back. The version of D5 to D7 is totally bypassed by the trial Court.
The trial Court committed serious error in attaching the alleged discrepancies in the case of the plaintif when the opposite parties had clearly admitted in the written statement itself.
It is further contended that the trial Court failed to consider that all the sale deeds which stands in the name of husband of DW2 is recited that he is living by Bhu Jeevanam (lands), but nowhere in those documents, it is found that he is doing business, but the trial Court very conveniently ignored and slurred over its legal efect and believed the version of the contesting defendant 5 to 7 and arrived to the conclusion that those properties were purchased by the husband of D5 with his own income and treated those properties as self acquired properties. The trial
Court failed to consider the burden of proof rest on the shoulder of D5 to 13 AS : 8/2014
D7 to prove their version of their oral partition efected 30 years back, which was not proved by the defendants 5 to 7. Mere filing of the sale deeds relating to items 3, 6, 11, 16 to 21 is not enough to believe the version of D5 to D7 and except the evidence of DW2, no other evidence is placed by D5 to D7 to prove their version. The trial Court failed to consider the admission of D5 to D7 that they have no objection for partition on ancestral properties and decreed partly. It is further contended that when once a partition is efected in the family, there is need to once again to make re-open partition of the same properties, but the Court below decreed the suit partly and dismissing the partition. The findings of the trial Court disbelieving the version of the plaintif and believing the version of D5 to D7 is untenable and it is not in accordance with the evidence, which is available in the suit. The trial Court failed to consider the admission of one of the branch i.e., Krishnamoorthy, who is the eldest son of Anthati Obaiah is supporting the version of plaintif.
It is also contended that the trial Court ignored the important aspect that if the joint family is not in existence in between the brothers, how can the pattadar passbook of Chandrasekhar was obtained by
Venkata Chalapathi by signing in the record, which was maintained by the
Revenue Department. The pattadar passbooks which was owned and possessed by the brothers are not tallying with the respective shares of their legitimate share. Thus there is no fair division of entries incorporated in the pattadar passbooks relating to the properties which were owned and possessed by each family, itself discloses that there was no division taken place in between the brothers. The trial Court failed to consider that the defendants have not proved how the income derived by Chandrasekhar to purchase the properties in his name and treated them as self acquired properties since there is no other source of income to Chandrasekhar except agriculture land and arrack business. The trial Court failed to 14 AS : 8/2014 frame an Issue to that efect when D5 to D7 took their plea that the properties stands in the name of Chandrasekhar are purchased out of his own earnings and they are the self acquired properties of him. The trial
Court Judgment is not in accordance under Order 20 Rule 4 of CPC and miserably failed to deal with the matter and arrived wrong conclusion which caused substantial prejudice to the case of the plaintif. Hence, the inference drawn by the trial Court is very much required to reading the
Decree and Judgment made on 07.12.2011. Hence, the appellant prays to allow the appeal and pass a preliminary decree in respect of all the properties mentioned in the plaint with costs throughout.
13. The defendants 1 to 4 in OS No.66/2008 filed Cross
Appeal No.1/2012 before I Additional District Judge’s Court, Kadapa, which was transferred to this Court on the point of Jurisdiction and renumbered as Cross Appeal No.1/2016. The brief averments in Cross
Appeal No.1/2016 are as follows:
That the Decree and Judgment of the trial Court are against
Law, weight of evidence and probabilities of the case. The trial Court traversed on a wrong track and thereby came to incorrect finding and partly decreed the suit. The trial Court erred in appreciating the right of the plaintif as well as the rights of these appellants, who are claiming in the suit property. The original ancestors of plaintif constituted members of Hindu Joint Family and Anthati Obaiah was the manager and Kartha of it and the properties possessed by him belongs to joint family being managed and administered by him. He purchased the said properties with the income derived from ancestral and joint family properties. All the coparceners exercised their equal joint share over the family properties, which include the plaint schedule properties. The trial Court ought to have decreed the suit of the plaintif basing on the documents and the oral 15 AS : 8/2014 evidence let-in by the both the parties on record. The trial Court failed to consider the contentions of the respective parties. The burden of proof rests on the defendants, who are claiming that the property is the self acquired property and also pleading that family partition efected already.
It is also contended that the trial Court has attached much importance to the evidence of DW2 and ignoring whether joint nucleus is available or not in the absence of acceptable evidence is placed or not, which is unsustainable and it has to be redeemed. The Judgment of the trial Court is vitiated by several assumptions and presumptions in order to dismiss the claim of the partition to certain items and made out the case for the defendants 5 to 7. The learned trial Court had committed serious error of Law and facts with regard to its finding in dismissing the claim of partition. The trial Court ought to have accepted the oral as well as documentary evidence placed by the plaintif and ought to have rejected the version of D5 to D7. The trial Court ignored the important aspect if the joint family is not in existence in between the brothers and if it is proved the trial Court failed to appreciate the evidence placed by the parties that how can Pattadar Passbook of Chandrasekhar was obtained by Venkata
Chalapathi by signing in the records, which was maintained by the revenue department. The trial Court has utterly failed to appreciate the version of the plaintif and other branches, who are the legal heirs of
Anthati Obaiah and the appellants failed to set aside the decree and
Judgment of the trial Court dated 07.12.2011 by allowing this cross appeal.
14. The defendants 8 & 9 in OS No.66/2008 filed Cross
Appeal No.2/2012 before I Additional District Judge’s Court, Kadapa, which was transferred to this Court on the point of Jurisdiction and renumbered as Cross Appeal No.2/2016. The brief averments in Cross
Appeal No.2/2016 are as follows:
16 AS : 8/2014
That the Decree and Judgment of the trial Court are against
Law, weight of evidence and probabilities of the case. The trial Court traversed on a wrong track and thereby came to incorrect finding and partly decreed the suit. The trial Court erred in appreciating the right of the plaintif as well as the rights of these appellants, who are claiming in the suit property. The trial Court has utterly failed to appreciate the pleadings and the evidence in a proper prospective and misled itself the claim of the appellants herein. The original ancestors of plaintif constituted
Anthati Krishnamoorthy,Chandrasekhar and Venkata Chalapathi members of
Hindu Joint Family and Anthati Obaiah was the manager and Kartha of it and the properties possessed by him belongs to joint family being managed and administered by him. Chandra Sekhar purchased properties out of the nucleus in the capacity of manager of joint family for the benefit of all joint family members, so the acquisitions made by him during his tenure as manager of the joint family were thrown into common hatch-pot blended with other joint family properties and the said Chandrasekhar never exercised any exclusive or separate rights over the joint family properties. All the coparceners exercised their equal joint share over the family properties, which include the plaint schedule properties also. Thus the respondents e stopped to plead ignorance of the above facts are disclaim knowledge at this point of time. The said Chandrasekhar had no other source of income to purchase the properties in his name in the capacity of joint family manager except the income derived from ancestral and joint family properties.
It is also contended that the Judgment of the trial Court is vitiated by several assumptions and presumptions in order to dismiss the claim of the partition. The trial Court has made out the case for the defendants 5 to 7 by dismissing the claim or partition of the appellants in respect of item No.1 to 22 of A Schedule and Item No.6 of B Schedule 17 AS : 8/2014 properties. The trial Court had committed serious error of Law and facts with regard to its finding in dismissing the claim of partition. The trial
Court ought to have accepted the oral as well as documentary evidence placed by the plaintif. It is a settled law in the absence of any plea that no amount of evidence in relation there to can be looked into and no credence can be attached to it. But the trial Court has attached the much importance and discarded the relief sought for partition to the entire items, but partly decreed.
It is further contended that the branch of Krishnamoorthy, who is the eldest son of Anthati Obaiah is supporting the version of the appellants, but the trial Court ignored and travelled in a wrong track and decided the matter in favour of D5 to D7. The trial Court ignored the important aspect if the joint family is not in existence in between the brothers and if it is proved the trial Court failed to appreciate the evidence placed by the parties that how can Pattadar Passbook of Chandrasekhar was obtained by Venkata Chalapathi by signing in the records, which was maintained by the revenue department. That it is the case of contesting defendants 5 to 7 that there was partition efected relating to the agriculture lands and pattadar passbooks were also obtained by each individual brothers. But, the entries in pattadar passbooks are not tallying with the respective legitimate shares of them.
It is further contended that the contesting defendants half hearted denied the claim of defendants in the suit items and they have not even proved how the income derived by Chandrasekhar to purchase the properties in his name. Except the income derived from the agriculture lands and joint family business of arrack, there is no other source of income to Chandrasekhar to purchase the properties in his name. But the trial Court totally ignored the said fact and failed to frame an issue to that efect. Thus the trial Court miserably failed to deal with the material 18 AS : 8/2014 arrived wrong conclusion, which caused substantial prejudice to the case of these appellants and the appellants prayed this Court to set aside the
Decree and Judgment of the trial Court dated 07.12.2011 by allowing this cross appeal.
15. Heard arguments on both sides and also perused
Written Arguments filed on behalf of both parties.
16. Now the points that arise for consideration in this appeal are:
1. Whether the plaintif is entitled for partition of the suit schedule property into two equal shares and to deliver share of plaintif as prayed in the plaint over all schedule properties including item No. 1, 21 ,29 and 31 of “A” schedule and item No.6 of “B” schedule property?
2. Whether the Decree and Judgment in OS No.66/ 2008
dated 7.12.2011 passed by the Principal Senior Civil
Judge, Rajampet is liable to set aside?
3. To what relief?
17: Points No.1 and 2:-
The plaintif filed suit for partition pleading A & B schedule properties as ancestral properties and have been purchased and some of them have been purchased out of proceeds of joint family properties.
The suit of the plaintif was partly allowed for partition over item No.22 to 28 of A schedule property and item No.1 to 5 of B schedule property and with regard to other items in A & B schedule properties suit was dismissed.
18:The contention of D5 to D7 legal heirs of Chandra sekhar is that item No.23 to 28 of A schedule property and item No.1 to 5 of B schedule property are alone available for partition and some of other 19 AS : 8/2014 items were exclusively purchased by the husband of D5 who is
Chandrasekhar out of his own funds thereby they are self acquired properties and other items of the property were already partitioned about 30 years back orally.
19: The relationship in between parties is not in dispute. The plaintif is the son of D8 Venkatachalapathi . D1 to D4 are legal heirs of
Anthati Krisha Murthy. D5 to D7 are legal heirs of A.Chandrasekhar.
The said Chandrasekhar , Krishna Murthy and D8 Venkata Chalapathi are sons of Anthati Obaiah which is also not in dispute. D10 is the daughter of said A.Obaiah, D11 and D12 are said to be in possession of item No,.16 to 18 of A schedule property as tenants and paying monthly rents of
Rs.3,000/- to D5. D13 and D14 are manufacturer of bricks in item No.13,19 and 20 of A schedule property and D13 paying monthly rent of Rs.15,000/- and D14 paying rent of Rs.1250/- to D5 monthly. D15 and D16 are the
District Collector,Kadapa and Revenue Divisional Officer, Rajampet to show that under compulsory acquisition part of suit property was acquired.
20:D17 to D19 are said to be the subsequent purchasers of some of the suit property from D5. They were impleaded in the appeal suit as per orders in I.A.No.453/2014 dated: 18.8.2018. D20 to D22 are legal representatives of D10 brought on record as per orders in I.A.No .
576/ 2017, dated: 5.7.2018.
21:Admittedly among 3 sons of A.Obaiah Chandrasekhar, and
K.Krishna murthy were no more by the date of suit. D8 and D10 son and daughter of said A.Obaiah died during suit proceedings.
22:The instant suit being suit for partition and if property is shown in the name of their ancestors it is an acceptable argument that existence of joint family can be presumed . At the same time when it is the very contention of D5 to D7 that item No.3,6,8,11 and 16 to 21 exclusively belongs to Chandrasekhar husband of D5 and father of D6 and 20 AS : 8/2014
D7. It becomes burden of plaintif to show that such property was purchased from out of family funds and that the said property constitute and form part of joint family properties by placing sufficient and satisfactory evidence. That this is a joint family property and has such sufficient nucleus. It is also an acceptable argument that when it is the contention of defendant that there is a oral partition the burden lies upon the defendant to discharge the same. Mere convenient enjoyment of any extents does not infer the actual partition. The said fact and settled principle will also be kept in kind by this court while appreciating evidence on record.
23: To the instant case there is no dispute. More over an admitted fact that item No.23 to 28 of A schedule property and item No.1 to 5 of B schedule property are available for partition therefore said properties can be directed for partition which has been made by the trial court already.
24: It is not the contention of D5 to D7 that share under oral partition was allotted to Chandrasekhar alone. They have shown other properties also as allotted under partition long back in favour of D8 and other brother Krishhna Murthy also. It is the contention of D5 to D7 that
father of D1 and D2, D4 and husband of D3 was allotted with item
No,4,5,22, 29 to 31. Similarly D8 was alloted with item No.13,14,
and 15. Item No,.1 was in the name of D8 himself. Item No.3 was
in the name of Chandrasekhar husband of D5. Similarly item No.2
was in the name of Krishna Murthy of whom D1 to D4 are legal
representatives.
25:It is not in dispute rather, it is admitted by P.W1 plaintif herein that item No.1 to 3 were acquired by the Government for laying of
High way road and also that cheques were issued towards compensation amount separately to the brothers over which they had rights. It is 21 AS : 8/2014 admitted by P.W1 that compensation was received by Krishna murthy over item No.2 by a separate cheque . Compensation towards item No.3 was received by Chandrasekhar from the Government.
26:Therefore in the light of separate sale deed Ex.A22,
Ex.A16 and Ex.A23 over item No.1 to 3 in favour of 3 brothers and also receiving compensation separately from Government by way of cheques clearly shows that they have exclusive rights over item No.1 to 3 separately. It is not the case of plaintif that inspite of variation
in the extents of item No.1 to 3 share was received by the said
brothers together and shared the amount equally. The said Krisha
Murthy nor Chandrasekhar paid any diference amount to D8 as they having more extents of land in their name. If at all case of the plaintif is believed that the properties were purchased in the name of brothers separately but from out of proceeds of the joint family property.
Obviously compensation from out of item No.1 to 3 in total would have been shared equally by 3 brothers. There is no such plea nor contention or any record is placed before this court. Therefore it is to be accepted that the properties were exclusively purchased in the name of brothers out of their own funds. There is no such recital in ExA.22, Ex.A16, Ex.A23 sale deeds over item No.1 to 3.
27:With regard to item No.6 which is in Sy.No.255/2A to an extent of Ac.0.48 cents. It is contented by D5 to D7 that under Ex.A17=
Ex.B5 about Ac.0.50 cents were purchased in the name of Chandra sekhar husband of D5 and father of D6 and D7. No doubt there is a separate sale deed under Ex.A24 over said survey number, to an extent of Ac.0.10 cents in the name of Krishna Murthy. The same is not in consistent with their own plea with regard to extent of item No.6, Ex.A24 is for Ac.0.10 cents only.
22 AS : 8/2014 28: Further with regard to contention of D5 to D7 the plaintif himself filed Ex.A10 and Ex.A15 showing item No.8 in the name of husband of D5. Ex.A15 is dated:30.8.1967 in Sy.No.246 for Ac.0.35 cents which reassembled with item No,8 of A schedule property. Ex.A10 is left unexplained in the light of Ex.A15 which is in the name of husband of
D5.Therefore in the light of Ex.A15 it is to be understand that item No.8 is purchased by Chandrasekhar husband of D5. Further with regard to item No.11, 16 to 21 several sale deeds have been filed by the plaintif as well by D5 to D7 to show that same are in the name of Chandra sekhar husband of D5. Ex.B5=Ex.A17 is with regard to item 11, Ex.B6 =
ExA18 with regard to item No.16 to 18. Ex.B8=Ex.A20, item
No.19,20, ExB19= Ex.A18 with regard to item No.21.
29: Therefore in the light of above said documents D5 to D7 could well substantiate that the said properties are in the name of said
Chandra sekhar exclusively. Ex.B10=Ex.A21 with regard to item No.6 of B schedule is also in the name of A.Chandrasekhar. On perusal of said documents there is no mention with regard to purchase money as secured from joint family funds.
30: Therefore item No.7,9,10,12 are alone claimed by D5 to
D7 as allotted towards oral share of Chandrasekhar. At the same time it is also pleaded that while such oral partition other properties Krishna
Murthy and father of P.W1 who is D8 were also allotted with properties.
Item No.4,5,22, and 29 to 39 allotted to Krisha Murthy and item No.13,14, 15 were allotted to D8. D10 never made any contention for partition.
31: The defendants D1 to D4, D8 to D10 are sailing with case of plaintif. They never placed any material to show that joint family funds were shared among the brothers along with D10. It is not dispute that as per the contention of D5 to D7 their names are mutated in the revenue record.Ex.B1 to Ex.B3 are very much clear and 23 AS : 8/2014 could substantiate their contention. Inspite pattadar pass book and title deeds filed by plaintif and other defendants, similar to the contention of
D5 to D7 they were not brought on record.
32: It is an acceptable argument that mutation of name of any member of joint family does not give any exclusive rights to the person in whose name such mutation is. But to the instant case when there were separate sale deeds in favour of each brother exclusively and also separate pattadar pass books were obtained by each brother without any dispute and also receiving of compensation separately over item No.1 to 3, no such jointness can be presumed. In the instant case D5 to D7 could well substantiate their contention and discharge the initial burden of their contention with regard to some of the properties as self acquired property of Chandrasekhar and also existence of oral partition since long back.
33: P.W1 admits that his father D8 herein leased out item
No.13 to certain traders for running their business in the said petty bunks.
Admittedly there are 6 bunks and the tenants in the said bunk and they used to pay rent to father of P.W1 who is D8 herein. Admittedly there are no accounts with the father of P.W1 over said rent nor any record to show that the said rent was shared with Krishna Murthy and Chandra sekhar brothers of D8 ever.
34: Thereby the evidence of P.W1 and silence of D8 clearly shows that D8 was alloted with item No.13. It is further admitted by P.W1 that item No.14 and 15 of A schedule properties were taken by his father D8 herein. It is clearly admitted by P.W1 that towards item
No.1,13,14, 15 of A schedule property pattadar pass book and title deed were issued in the name of D8. Similarly towards item No.4,5,22, 29 to 31 pattadar pass book and title deed were issued in favour of Krishna 24 AS : 8/2014
Murthy. The said admission is in consistency with the contention of D5 to
D7 with regard to oral partition.
35: If at all there is no oral partition as to how separate sale deeds came into existence in favour of each individual and also as to how they could dispose of individually. It is admitted by P.W1 that item
No.21 was purchased jointly by Chandrasekhar and Mohammad Khasim under registered sale deed which is Ex.B10 herein . Mohammed Khasim does not belongs to family of instant parties. Therefore it is to understand that the husband of D5 had separate financial transactions with others and said transactions exclusively belongs to him and it has nothing to do with joint family. If at all item No.22 was purchased out of joint family funds it cannot be expected that a stranger to the family would be shown as a joint purchaser . Therefore the case of the plaintif is not projected with true facts.
36: P.W1 admits that his father D8 herein sold property in
Sy.No.276/1 to one Kesineni Narayanamma in the year 1997 without participation in sale by his two brothers. Further admits that his father alone sold house site belonging to him in Avilala area of Tirupathi
Municipality. Therefore when D8 father of P.W1 himself sold properties to third parties by separate transactions it cannot be expected that husband of D5 would not have any separate transactions. Obviously when D8 had a separate transactions his brothers would also have separate transactions. Further case of plaintif that the property in Tirupathi has became more valuable than other properties, D5 to D7 are claiming property situated there and reporting no objection for partition of item
No.1 to 5 in B schedule which are of not much valuable situated in village premises. Such a contention would not stand in the light of a registered sale deed being in the name of husband of D5 over item No.6 of B schedule and when plaintif failed to substantiate that registered sale 25 AS : 8/2014 deeds in the name of husband of D5 were in fact purchased from joint family funds going beyond recitals, the case of the plaintif cannot as such be accepted.
37: In the light of a decision by Hon’ble supreme Court of
India in between S.Subramanian -Vs- S.Rama swamy and others
dated: 1.5.2019 in Civil Appeal No.45364537 of 2019. wherein it is
clearly held that:- “ The Law on the aspect of blending is well settled that the property separate or self acquired of a member of a joint family may be impressed with character of joint family property if it is voluntarily thrown by the owner into common stock and with intention of abandoning his separate claim therein”.
At the same time it is also observed that “ to establish such abandonment a clear intention to waive separate rights must be established. Clear intention to abandon separate rights in the property must be proved. Even abandonment cannot be inferred from mere allowing other family members also to use property or utilization of income of separate property out of generosity to support family members”.
38: In the light of above observations and to the case facts on hand this court is of the opinion that the plaintif could not substantiate his case that registered sale deeds are made in favour of individuals out of joint family funds and also failed to place any documentary or oral and reliable evidence that the said individual ever had an intention to abandon his rights and throw his property into common stock.
39: It is well settled that the plaintif shall win or loose his case only on his own strength and also that there is a legal presumption that every Hindu family is joint in food, worship and estate and in the absence of any proof of division, such legal presumption continues to exist in the family. The burden therefore, lies upon the member who 26 AS : 8/2014 after admitting existence of jointness in the family properties asserts his claim that some properties out of entire lot of ancestral properties are his self acquired property. The plaintif and R20 to R22 relied upon a decision rendered by Hon’ble Supreme court in between Adiveppa-Vs-
Bhimappa and another reported in 2017 AIR (SC) 4465 in civil
appeal No. 11220 of 2017, dated: 6.9.2017, wherein the above said observation was made.
40: On perusal of above said decision relied upon by the plaintif and R20 to R22 legal heirs of D10 it is acceptable that there is a legal presumption. At the same time there is also an observation in the very same decision by the Hon’ble Apex court that the plaintif therein failed to prove that despite existence of jointness in the family properties descried in the schedule were not part of ancestral properties and were their self acquired properties. But to the instant case D5 to D7 who strongly contended about existence of self acquired property in the name of husband of D5 could well be substantiated in the light of registered sale deeds. They also could substantiate oral partition in the light of separate sale deeds in the name of D8 husband of D5 and husband of D3 over item
No.1 to 3. Other properties were being exclusively enjoyed by them in their respective names which are mutated in the revenue records.
Therefore the above said decision has no application to the instant case facts.
41: Further arguments of the learned counsel for plaintif and other defendants apart from D5 to D7 that the revenue records cannot create or extinguish the title over any land or has any presumptive value on the title and also relied upon decision reported in Smt Bhimabai
Mahadeo Kambekar (D) the L.Rs-Vs-Arthur Import and Export
Company and others rendered by Hon’ble Supreme Court in
Civil Appeal No.1330 of 2019 and also relied upon several other 27 AS : 8/2014 decisions reported in ( See Sawarni ( Smt)-vs- Inder Kaur ( 1966) 6
SCC 223, Balwant Singh and another-Vs-Daulat Singh ( dead by
L.Rs and others ( 1997) 7 SCC 137 and Narasamma & others -Vs-
State of Karnataka and others ( 2009) 5 SCC (591), wherein also it is clearly held that the revenue records cannot be relied upon nor they can establish any title over persons whose name is in revenue record.
The said decisions and observations therein is acceptable and in fact binding. At the same time it is for this court to scrutiny all several other factors which shows any partition in between parties. The revenue record and its mutation alone is not taken into consideration by this court in order to believe oral partition. P.W1 himself admits exclusive enjoyment of properties by his father as well other brother of his father Krishnamurthy and also Chandrasekhar husband of D5 since long time. When such is the case the above said decisions relied upon has no application to the instant case facts.
42: D8 and D9 also relied upon similar decision rendered by
Hon’ble Supreme Court in Sankalchan Jaychandbhai Patel and others-
vs- Vithalbhai Jaychandbhai Patel and others, wherein it is observed by the Hon’ble Apex court that :- “ Mutation entries are only to enable the state to collect revenue from the persons in possession and enjoyment of the property and the right, title and interest as to the property should be established dehors the entries. Entries are only one of the modes of proof of the enjoyment of the property”. Mutation entries do not create any title or interest therein”.
In the light of above observations of this court the above said decision also has no application.
43: The learned counsel for D3 relied upon a decision reported in Uttaradi Mutt -Vs- Raghavendra Swamy Mutt in Civil Appeal 28 AS : 8/2014
No.9333 of 2018 rendered by the Hon’ble Supreme court of India and also another decision reported in Balaji Singh-Vs Diwakar cole and others in Civil Appeal No. 5540 of 2017 rendered by the Hon’ble
Supreme court of India, and also another decision reported in Namdoe
s/o Bapurao Bansod -Vs- Tukaram s/o of Marotrao Jadhav in Civil
Appeal No.5185 of 2008 rendered by the Hon’ble Supreme court of
India and also another decision reported Union of India -Vs- K.V
Lakshman and others rendered by the Hon’ble Supreme court of India and argued upon that the Hon’ble Supreme court in the above said decision permitted the parties to have fair trial in Civil suits with a view to do substantial Justice and allow the plaintif to file additional documents in appeal and also remanded the matter in Namdeo case to the 1st appellate court with a direction to consider and dispose of the application
Under Order 41 Rule 27 of C.P.C.
44: On perusal of the above said decisions and also documents sought to be received filed in I.A.No.452/2014, and I.A.No. 79/2019, this court found no reason or ground to allow the said petitions. The said documents does not improve the case of the plaintif nor other defendants and the said documents does not support the contention of them. When such is the the said documents needs no consideration at this stage nor needs to be brought on record. No steps have been taken by the petitioner in the document petitions for examining of any witness on their behalf in order to bring on record of said documents. D3 alone filed a petition for recall of herself and for examining to bring on record the said documents.
In furtherance of the same she also sought for remand of the case. On perusal of total facts and circumstances of this case and observations made above there needs no necessity for remand of the instant case nor said documents appears to improve the case of the defendants. No reasons have been placed before this court for not adducing evidence 29 AS : 8/2014
before trial court by above said defendants and exhausting their
opportunity. In the absence of the same the contention of D3 in
I.A.No.79/2019 cannot be taken into consideration.
45:D.W1/D1 sailing with plaintif sworn in his affidavit evidence in accordance with the same. D5 got filed her sworn affidavit evidence in support of her contention and also got filed Ex.B1 to Ex.B10. The contention of D5 to D7 could well be substantiated in the light of evidence of P.W1 himself and also D.W2/D5. In her cross examination nothing adverse could be elicited. It is admitted by D.W2 that her husband purchased property out of income derived from arrack business. Further admits that by the said time S.R. Wines shop was in existence. But for the said admission nothing can be inferred that the proceeds of S.R.Wines shop were used for purchase of property in the name of husband of
D.W2/D5. It is clearly stated by D.W2 that said wine shop was run by D8.
Only for the reason that sale deeds in the name of husband of D5 there is a specific mention that the husband of D5 earnings are out of lands and no mention of any business the case of D5 cannot as such be ignored in the light of sale deed. The burden in fact cast upon plaintif to substantiate his case that the said sale deeds were kept in the name of husband of D5 and in fact purchased out of funds of joint family, of which he failed.
46: D3 is wife of Krisha Murthy. D3 got filed I.A.No.78/2019
before this appellate court and sought for remand of the instant appeal
suit to the trial court. D3 also filed I.A.No.79/2019 a document petition towards additional evidence. Under the same, genealogical tree of the family members is filed. Pahani proceedings of the Commercial tax Officer, acceptance letter-cum- Premium receipt of L.I.C, joint passbook in the name of Krishna Murthy and Padmavathi. The said proceedings, LIC letter and joint pass book in the name of D3 along with her husband does not 30 AS : 8/2014 improve her contention. Adangal showing property as inherited properties needs no consideration at this stage. As the revenue records cannot be relied upon if contrary to the registered sale deed thereby the above said documents cannot be relevant nor necessary to be brought on record at this stage. The reasons for not filing said documents before the trial court are not satisfactory. Serial numbers 6 to 12 in the document petition which are election identity card of D3, D5 and Aadahr card of D8, driving license of D1 ,study and conduct certificate, wedding card of husband of
D5 and D8 cannot improve case nor contention of D3 nor case of the plaintif. D3 did not file any cross appeal in the instant case so as to seek for remand of the case to the trial court. The documents sought to be received also needs no consideration at this stage. Therefore
I.A.No.78/2019 and I.A. No. 79/2019 are to be dismissed in the light of above observations.
47: D3 was a party before trial court at the time of presentation of plaint itself. No steps have been taken since then. She did not adduce evidence before the trial court. The arguments of the learned counsel for D5 to D7 that seeking for receive of documents and seeking for remand of the appeal suit to the trial court at this stage is nothing but filling up of gaps and to start second round of litigation is considerable.
48: The learned counsel for R20 to R22, legal heirs of D10 argued upon that they have every right in the partition as D10 was co- parcener in the joint family as per section 6 of Hindu Succession Act and amendment Act 2005 which came into efect by 20.12.2004 she is also entitled for equal share. They also relied upon a decision reported in
Danamma @ Suman Surpur -Vs-Amar.
49: To the instant case it is observed by this court already that D5 to D7 could well substantiate self acquired property of husband of
D5 and also oral partition contended by them which took place very long 31 AS : 8/2014 back. Therefore it is to be held that they are not available for partition.
D10 never made any claim all these days, but simply adopted written statement of D1 along with D2 to D4, D8 and D9. She did not adduce evidence and subsequently died during appeal proceedings. Therefore she would be entitled for partition over available properties which is not disputed by D5 to D10 nothing could be in particular be disputed by D10 during her life time nor any sufficient and satisfactory material is placed by the legal heirs of D10 to substantiate case of D10 who was sailing with plaintif and other defendants. Therefore R20 to R22 are entitled for partition over available properties equally. Oral partition and the sale deeds exclusively made in the names of other brothers was never questioned by D10. If at all said sale deeds were made out joint family funds. Oral partition substantiated by D5 to D7 which took place very long back could not be disproved. Therefore at this stage R20 to R22 are entitled for partition as directed by the trial court.
50: D8 and D9 father of plaintif and other brother of plaintif filed cross appeal vide Cross Appeal No.02/2016 and also filed I.A.No .
452/2014 much prior to the cross appeal seeking receive of documents towards additional evidence. 8 documents are sought to be received under the said petition under order 41 Rule 27 of C.P.C. At the same time nothing is sought to bring on the same record. More over on perusal of said sale deed and pattadar pass book this court is of the opinion that the said sale deeds and pattadar pass books does not improve the contention of D8 and D9. They did not adduce evidence and failed to bring on record any documents before the trial court. The documents sought to be brought on record by D8 and D9 does not show that documents in favour of
Chandrasekhar were funded from out of joint family funds. As already held the revenue records cannot be relied upon if contrary to the registered documents. More over D3,D8 and D9 shunned the witness box.
32 AS : 8/2014
Therefore at this stage said documents needs no consideration and the said interlocutory application No.452/2015 also is to be dismissed.
51: D1 to D4 filed Cross Appeal No.01/2016 with similar contention made before the trial court. D8 and D9 filed Cross Appeal
No.02/2016. The contention of D1 to D4, D8 and D9 is similar to the case of the plaintif they are sailing together.
52: Therefore in the light of observations made above in the appeal suit are also sufficient for consideration of both Cross Appeals.
53:In the light of above observations this court is of the opinion that the plaintif failed to substantiate his case for partition of total properties. Therefore no interference needs to be made over judgment and decree in O.S. No.66/2008 dated: 17.12.2011 on the file of
Principal Senior Civil Judge Court, Rajampet and the appeal suit No.8/2014
along with Cross appeal No.01/2016 and Cross Appeal No.02/2016 are liable to be dismissed. Accordingly points No.1 and 2 for consideration are answered.
54: Point No.3:-
In the result, the Appeal suit No.08/2014, and Cross Appeal No.
01 /2016 and Cross Appeal No. 02/ 2016 is dismissed, without costs confirming the Judgment and Decree made in O.S. No.66/2008, dated:
7.12.2011 on the file of Principal Senior Civil Judge, Rajampet..
Dictated to the Stenographer Grade-I transcribed by him
corrected and pronounced by me in the open Court, this the 22nd day of
May, 2020.
sd/-C.Satyavani
III ADDITIONAL DISTRICT JUDGE,
RAJAMPET.
APPENDIX OF EVIDENCE
-Nil-
sd/-CSV
III ADJ
33 AS : 8/2014