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2002 DIGILAW 749 (AP)

Bachala Anjaiah v. Abdul Qayyum

2002-06-20

P.S.NARAYANA

body2002
P. S. NARAYANA, J. ( 1 ) THE appellants are the unsuccessful defendants in both the Courts below. The respondent-plaintiff instituted a suit in OS No. 107/85 on the file of the District Munsif, Shadnagar, claiming the relief of permanent injunction relating to plaint schedule property and the suit was decreed and aggrieved by the same, the defendants in the suit had preferred AS No. 3/90 on the file of the Additional District Judge, Mahaboobnagar, and the appeal was dismissed and aggrieved by the said judgment and decree made in the said appeal, the present second appeal is filed. ( 2 ) SRI Venkateshwarlu, the learned Counsel representing the appellant, had raised the following substantial questions of law : (A) Whether the burden of proof of partition lies on the respondents who pleads partition, or it is for the appellants to prove non-partition ? (B) Whether an injunction can be granted against a co-owner i. e. , appellants? (C) What is the effect of non-framing of an issue relating to partition, though it was pleaded in the plaint and denied in the written statement ?the learned Counsel had submitted that the respondent-plaintiff claims that one Jangaiah was the original owner to an extent of Acs. 1. 34 guntas and that he had purchased 0. 02 guntas for poultry from through a registered sale deed. The learned Counsel also contended that as far as factum of partition between the brothers is concerned, the burden is on the purchaser and except the evidence of PW4 there is no other evidence and the respondent-plaintiff miserably failed to prove partition and in the absence of the same, the deceased Jangaiah or the heirs of Jangaiah at the best will become the co-owners or co-sharers along with the appellants-defendants and hence, the suit for injunction by a purchaser from the said Jangaiah is not maintainable and such a relief cannot be granted as against the appellants-defendants. The learned Counsel also contended that when the factum of partition was pleaded by the plaintiff and denied by the defendants in the suit, an issue should have been framed in this regard and the non-framing of the issue is also bad in law. The learned Counsel also contended that when the factum of partition was pleaded by the plaintiff and denied by the defendants in the suit, an issue should have been framed in this regard and the non-framing of the issue is also bad in law. The learned Counsel also would contend that at any rate, there is no clear evidence about exclusive possession of the respondent-plaintiff relating to plaint schedule property and apart from it, the burden of proof is on the respondent-plaintiff to establish the alleged partition and in the absence of it, the respondent-plaintiff should have been non-suited. The learned Counsel had drawn my attention to the respective pleadings of the parties, the evidence available on record and also the findings recorded by both the Courts below in this regard and had contended that the whole approach of both the Courts below in appreciating the questions is totally erroneous and hence, the appeal has to be allowed. ( 3 ) SRI Jagannadha Sastry, the learned Counsel representing the respondent-plaintiff, on the other hand contended that these are the concurrent findings relating to the facts recorded by both the Courts below and in view of the limitations imposed on this Court under Section 100 of the Code of Civil Procedure it is not a matter to be interfered with. The learned Counsel further contended that the respondent-plaintiff is only a purchaser of a portion of the property, which fell to the share of Jangaiah and the rest of the property is with PW4, the wife of Jangaiah. PW4, in fact, deposed that she continues to be in possession and she had supported the case of the respondent-plaintiff. The learned Counsel also had contended that the evidence of PWs. 1 to 4 and Exs. Al to A3 clearly establish the case of respondent-plaintiff and hence, the Courts below are justified in decreeing the suit. The learned Counsel also had taken me through the evidence of DWs. 1 to 3 and Exs. B1 to B4 is. this regard. The learned Counsel also submitted that as far as Ex. A3 is concerned, the entries therein are presumed to be correct until contrary is proved or until it is otherwise amended in accordance with the provisions of the A. P. Rights in Land and Paltcdar Pass Books Act, 1971. ( 4 ) HEARD both the learned Counsel. this regard. The learned Counsel also submitted that as far as Ex. A3 is concerned, the entries therein are presumed to be correct until contrary is proved or until it is otherwise amended in accordance with the provisions of the A. P. Rights in Land and Paltcdar Pass Books Act, 1971. ( 4 ) HEARD both the learned Counsel. ( 5 ) IN view of the respective contentions of the parties, the following substantial questions of law arise for consideration: (A) Whether the burden of proof relating to partition was properly appreciated by both the Courts below? (B) Whether the relief as prayed for can be granted in the facts and circumstances, inasmuch as the appellants are co-owners? (C) Whether an issue should have been framed relating to the question of partition? ( 6 ) ALL the above questions can be decided together since all these questions in one way or the other overlapped. The case of the respondent-plaintiff, in brief, is that he is the owner of the plaint schedule property shown in the sketch filed and the original owner was one Jangaiah from he purchased 0. 20 guntas for poultry farm by virtue of a registered sale deed, Ex. A1. No doubt, several other facts also had been pleaded and it was also stated that Jangaiah had partitioned the property long back and the palta was also mutated in the revenue record as per the possession of the respective parties and the appellants-defendants have nothing to do with the said property. Reliance was placed on Ex. A3 certified copy of ROR for the year 1979-80. The appellants-defendants had taken a specific stand that Jangaiah is not the owner of the property and hence there is no question of respondent purchasing the said property from Jangaiah and they have no knowledge of mutation of the patta of the suit land in favour of respondent-plaintiff and a specific stand was taken that the plaint schedule property was not partitioned and the appellants-defendants were in joint possession of the said land. The trial Court had framed as many as 7 issues and had recorded the evidence of PWs. 1 to 4 and marked Exs. A1 to A3 and DWs. 1 to 3 and Exs. The trial Court had framed as many as 7 issues and had recorded the evidence of PWs. 1 to 4 and marked Exs. A1 to A3 and DWs. 1 to 3 and Exs. B 1 to B4 and on appreciation of both oral and documentary evidence, the suit was decreed and the appellate Court also had framed the following points for consideration: (1) Whether the plaintiff has been in exclusive possession of the suit lands? (2) Whether the plaintiff is entitled for grant of perpetual injunction restraining the defendants from interfering with his peaceful possession and enjoyment of the suit lands? (3) To what relief the appellants-defendants are entitled?the appellate Court in paras 13 to 18 had discussed both oral and documentary evidence again and had confirmed the findings recorded by the trial Court and had ultimately dismissed the appeal. The findings which had been recorded by both the Courts below on the aspect of exclusive possession of the respondent-plaintiff are findings of fact and incidentally, the respondent-plaintiff as a purchaser had, no doubt, stated that this property fell to the share of Jangaiah and there was partition long back and he had purchased the said property. In a suit for injunction though the question of title may be incidentally gone into, the main question is the possession of the party on the date of the institution of the suit. Apart from the evidence of PW1, there is evidence of PW4, the wife of deceased Jangaiah, who had clearly deposed about the factum of possession and delivering possession of the property to the respondent-plaintiff by her husband. Apart from it, the evidence of PWs. 2 and 3 is also available on record. No doubt, an attempt was made by the appellants-defendants to show that Exs. B1 to B4 are the certified copies of pahanies for the years 1980-81 to 1983-84, showing the possession of the second defendant and hence, in the light of the same, injunction should not have been granted as against the co-owners. No doubt, an attempt was made by the appellants-defendants to show that Exs. B1 to B4 are the certified copies of pahanies for the years 1980-81 to 1983-84, showing the possession of the second defendant and hence, in the light of the same, injunction should not have been granted as against the co-owners. In Law of Injunctions by me at page 177 while dealing with the "rights and liabilities of co-owners", the principles laid down in different authorities had been discussed as follows: (1) A co-owner has an interest in the whole of property and also in every parcel of it; (2) Possession of the joint property by one co-owner is in the eye of law, possession of all even if all but one are actually out of possession; (3) A mere occupation of a larger portion or even of an entire joint property docs not necessarily amount to ouster as the possession of one is deemed to be on behalf of all; (4) The above rule admits of an exception when there is ouster of co-owner by another. But in order to negative the presumption of joint possession on behalf of all, on the ground of ouster, the possession of a co-owner must not only be exclusive but also hostile to the knowledge of the other, as when a co-owner openly asserts his own title and denies that of the oilier; (5) Passage of time does not extinguish the right of the co-owner who has been out of possession of the joint property except in the event of ouster or abandonment; (6) Every co-owner has a right to use the joint property in a husband like manner not in consistent with similar rights of other co-owners; (7) Where a co-owners is in possession of parcels under an arrangement consented to by the other co-owners, it is not open to any one to disturb the arrangement without the consent of others except by filing a suit for partition; (8) The remedy of a co-owner of a share if the joint property, if by way of a suit for partition or for actual joint possession but not for ejectment. Same is the case where a co-owner sets up an exclusive title in himself; (9) Where a portion of the joint property is by common consent of the co-owners, reserved for a particular common purpose, it cannot be diverted to an inconsistent user by a co-owner if he does so, he is liable to be ejected and the particular parcel will be liable to be restored to its original condition. It is not necessary in such a case to show that special damage has been suffered. " ( 7 ) IT is, no doubt, true that the relief of perpetual injunction restraining the co-owners or co-sharers from interfering with the peaceful possession and enjoyment as such cannot be granted. But, here is a case, where a specific plea was taken that this property had fallen to the share of Jangaiah and Jangaiah, in fact, had sold a portion of (he said property in plaint schedule survey number of the respondent-plaintiff and by virtue of the same, he is in separate and exclusive possession of the property. It is pertinent to note that respondent-plaintiff is the purchaser from the said Jangaiah and PW4, the wife of the vendor, had supported the stand taken by the respondent-plaintiff. Apart from this, both the Courts below had rightly relied on Ex. A3, certified copy of ROR for the year 1979-80. Section 6 of the A. P. Rights in Land and Pattadar Pass Books Act, 1971, specifically says that every entry in record of rights shall be presumed to be true until the contrary is proved or until it is otherwise amended in accordance with the provisions of the said Act. ( 8 ) APART from all these aspects, in view of the limitations imposed while exercising the jurisdiction under Section 100 of the Code of Civil Procedure, where the concurrent findings of fact had been recorded by both the Courts below, I am of the considered opinion that the second appeal is devoid of merits and accordingly, the same is dismissed. But, however, in view of the fact that the dispute is between a purchaser and the brother of the original vendor, I make no order as to costs.