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2006 DIGILAW 1101 (AP)

Molleti Appalanaidu v. Mookala Yerrunaidu

2006-09-12

L.NARASIMHA REDDY

body2006
JUDGMENT The plaintiff in O.S. No.177 of 1983 on the file of the learned District Munsif, Srungavarapukota, filed this second appeal, aggrieved by the judgment and decree passed by the Court of Additional District Judge, Vizianagaram in A.S.No.4 of 1992. 2. For the sake of convenience, the parties herein are referred to as arrayed in the suit. 3. The plaintiff filed the suit against the defendants, for the relief of perpetual injunction, in respect of Ac.0.A7 cents of land in Survey Nos.50/4 and 50/6 of Kallam Village. He pleaded that his father, by name Appalanaidu, had two wives by name Adamma, his mother, and Venkayamma. In a family settlement brought about in the year 1950, the properties held by Appalanaidu said to have been settled in equal shares among Appalanaidu and his two wives. 4. The plaintiff and one Mr. Satyam are the sons of Adamma, whereas Narasingarao and Eswararao are the sons of Venkayamma. The plaintiff stated that in a partition between himself and his brother, which took place in the year 1968, the suit schedule property fell to his share, and since then, he is in possession of the same. He complained that the defendants started interfering with his possession, without any basis or right. 5. The defendants pleaded that in the family settlement, the suit schedule property was kept in joint and rest of the properties were allotted to Appalanaidu and his two wives. According to them, the suit land is a thrashing ground and the sons of Venkayamma have sold their undivided two third share in favour of the defendants, through a sale deed, dated 7.4.1971, marked as EX.B.1. 6. The trial Court decreed the suit on 14.8.1991. Aggrieved thereby, the defendants filed AS. No.4 of 1992. The lower appellate Court allowed the appeal on 29.12.1994. Hence, the second appeal. 7. Sri Sharat, the learned Counsel for the plaintiff submits that when admittedly a partition-cum-settlement had taken place among Appalanaidu, the common ancestor, and his two wives, there was no basis for the plea of the defendants that the suit schedule property was kept in joint. He contends that even assuming that the suit schedule property remained joint, the defendants could have secured any right by claiming partition and not otherwise. 8. There is no representation for the defendants. 9. He contends that even assuming that the suit schedule property remained joint, the defendants could have secured any right by claiming partition and not otherwise. 8. There is no representation for the defendants. 9. The trial Court framed only one issue viz., whether the plaintiff was entitled for injunction as prayed for. On behalf of the plaintiff, P.Ws.1 to 3 were examined and Exs.A1 to A3 were marked. Out of them, EX.A1 is the land revenue receipt, dated 29.1.1983, in respect of the suit land, and Exs.A2 and A1 are the certified copy of cultivation adangal and the extract of settlement register, respectively. On behalf of the defendants, D.Ws.1 to 6 were examined and Exs.B.1 to B.6 were marked. 10. As observed earlier, the suit was decreed, but the lower appellate Court reversed the same. In view of the submissions made by the learned Counsel for the plaintiff and on a perusal of the record, this Court is of the view that the following substantial questions of law arise for consideration : (a) when the family settlement/partition is admitted, whether the burden to prove that an item of property was kept outside such an arrangement does not rest upon the person pleading it ?; and (b) whether the purchaser of an undivided share in an item of property can plead exclusive rights vis-a-vis the definite part of it ? 11. The plaintiff specifically pleaded that in a family settlement that took place in the year 1950, the entire properties held by his father Appalanaidu were divided into three equal shares and one share each was allotted to Appalanaidu and his two wives. The share allotted to Adamma is said to have been partitioned between the plaintiff and his brother Satyam in the year 1968 and that the suit schedule property is the one that has fallen to this share. The defendants are the alleged purchasers from the children of the other wife of Appalanaidu i.e. Venkayamma. The fact that a family arrangement took place in the year 1950 and equal shares were allotted to Appalanaidu and his two wives, was admitted by the defendants. Partition which took place between the plaintiff and his brother, in the year 1968, is not disputed. The fact that a family arrangement took place in the year 1950 and equal shares were allotted to Appalanaidu and his two wives, was admitted by the defendants. Partition which took place between the plaintiff and his brother, in the year 1968, is not disputed. The contention of the defendants was that the suit schedule property was kept in joint and that at the most, the plaintiff and his brother are entitled for one-third share, in the event of any partition. They pleaded that undivided two-third share in the suit schedule property was purchased by them under Ex.B.1. D.W.2, one of the sons of Venkayamma, supported this version. 12. Except stating that the suit schedule property was left undivided, the defendants did not substantiate the same. Whenever any partition or similar arrangement takes place, the presumption is that all the properties are brought under the purview of the same. Any party, who pleads that an item of property is left outside such an arrangement, is under obligation to prove the same. The burden to overcome the presumption is heavy and it must be discharged to the satisfaction of the Court. The evidence on record does not disclose that such a burden was discharged by the defendants. 13. Coming to the second question, it is to be seen that even assuming that the suit schedule property remained joint and that the defendants purchased undivided two third share in it, they were not entitled to interfere with the possession of the person, who held it, before the alleged sale took place. They could have, at the most, sought for partition, duly proving their claim. The principle that no injunction can be granted against a co-owner operates with a slight modification, in such instances. When a property is held by a joint family and a third party purchases an undivided share therein, he cannot be permitted to assert his own right of possession vis-a-vis the entire property nor can he be permitted to assert exclusive rights vis-a-vis any definite and identified extent of property. 14. Viewed from any angle, the judgment and decree passed by the lower appellate Court cannot be sustained in law. 15. Hence, the second appeal is allowed and the judgment and decree rendered by the lower appellate Court are set aside. The decree passed by the trial Court shall remain in force. 14. Viewed from any angle, the judgment and decree passed by the lower appellate Court cannot be sustained in law. 15. Hence, the second appeal is allowed and the judgment and decree rendered by the lower appellate Court are set aside. The decree passed by the trial Court shall remain in force. There shall be no order as to costs.