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2006 DIGILAW 1599 (AP)

Vulavakayala Laxmi v. Dhulipudi Veeraswamy

2006-12-20

L.NARASIMHA REDDY

body2006
JUDGMENT This Second Appeal is filed by the plaintiffs in O.S.No.92 of 1992, on the file of the Subordinate Judge, Pithapuram, against the judgment and decree dated 24-8-2005 in A.S.No.75 of 2000, passed by the Court of Principal District Judge, West Godavari, at Rajahmundry. The said appeal was filed by the 41h defendant against the decree and judgment dated 26-4-1996 passed by the trial court. 2. During the pendency of the suit, the 1st plaintiff, Vulavakayala Subba Rao, died, and his legal representatives were brought on record. For the sake of convenience, the parties are referred to, as arrayed in the suit. 3. The plaintiffs filed the suit against the defendants, for the relief of declaration of title and recovery of possession of the suit schedule property. In the alternative they prayed for the relief of partition of the suit schedule property and allotment of corresponding shares, to them. The 1st defendant is the son, 2nd defendant is the wife and 3rd defendant is the daughter of Manikyalu The plaintiffs purchased the suit land from defendants 2 and 3, through two separate sale deeds, dated 19-9-1991, and the said transactions were rectified, through deeds dated 17-6-1992. Their complaint was that the 1st defendant, son of late Manikyalu, had executed a sale deed, in respect, of the very property in favour of 4th defendant, and on the strength of the same, the 4th defendant dispossessed the plaintiffs. 4. The 1st defendant remained ex parte. The 2nd defendant died during the pendency of the suit. The 3rd defendant sailed with the plaintiffs. The suit was contested by the 4th defendant alone. He stated that the suit schedule property was held by late Manikyalu, the father of defendants 1 and 3 and husband of defendant No.2, and that after his death, it devolved upon the 1st defendant, and that he purchased the same for a valuable consideration, under a sale deed dated 19-9-199. He denied the title of the plaintiffs over the land. 5. The trial court decreed the suit, through its judgment dated 26-4-1996. The 4th defendant filed A.S.No.75 of 2000, in the Court of Principal District Judge, East Godavari. The appeal was allowed on 24-8-2005, and the decree passed by the trial court was set aside. 6. He denied the title of the plaintiffs over the land. 5. The trial court decreed the suit, through its judgment dated 26-4-1996. The 4th defendant filed A.S.No.75 of 2000, in the Court of Principal District Judge, East Godavari. The appeal was allowed on 24-8-2005, and the decree passed by the trial court was set aside. 6. Sri N. Subba Reddy, learned Senior Counsel appearing for the plaintiffs, submits that even though the plea of the plaintiffs that the property accrued to the 2nd defendant from her parents was not proved, the lower appellate court was not justified in setting aside the decree, since the 1st defendant failed to prove the oral partition, pleaded by him. He contends that unless the partition of the property, left by late Manikyalu was proved, it was liable to be partitioned, and the lower appellate court did not consider this aspect at all. Learned counsel submits that the observations made by the lower appellate court about the deeds of rectification are outside the scope of the suit. 7. Sri D.V. Chalapathi Rao, learned counsel for the 4th defendant, submits that the plaintiffs were not sure about the source of their title, and the trial Court decreed the suit, without any basis. He contends that once the plaintiffs failed to prove their plea that the 2nd defendant got the property from her parents, the whole edifice of the suit claim collapsed. Learned counsel contends that the evidence on record discloses that the property was held absolutely by the 1st defendant, and the transfer made by him in favour of 4th defendant is valid and legal. 8. The plaintiffs claimed the relief of declaration of title and recovery of possession, and in the alternative, a decree of partition and separate possession of the suit schedule property. On the basis of the pleadings before it, the trial court framed the following issues: (1) Whether the sale deeds and the subsequent rectification deeds dated 13-9-1 991 and 17-6-1 992 are true, valid and binding on defendants 1 and 4? (2) Whether the sale deed dated 19-9-1991 is true, valid and binding on the plaintiffs, 0-3 and her mother? (3) Whether the claim of the plaintiffs is barred by limitation? (4) Whether the plaintiffs are entitled for the declaration or in the alternative, partition as prayed for? (5) Whether the plaintiffs are entitled for the possession as prayed for? (2) Whether the sale deed dated 19-9-1991 is true, valid and binding on the plaintiffs, 0-3 and her mother? (3) Whether the claim of the plaintiffs is barred by limitation? (4) Whether the plaintiffs are entitled for the declaration or in the alternative, partition as prayed for? (5) Whether the plaintiffs are entitled for the possession as prayed for? (6) Whether the plaintiffs are entitled for the past profits from defendants 1 and 4 and if so, in what amount? 9. The dispute is practically between the plaintiffs on the one hand, and the 4th defendant, on the other hand. While the plaintiffs are transferees from defendants 2 and 3, the 4th defendant purchased the same property from the 1st defendant. On behalf of the plaintiffs, P.Ws.1 to 3 were examined and Exs.A-1 to A-15 were marked. On behalf of the 4th defendant, 0.Ws.1 to 6 were examined and Exs.B-1 to B-9 were filed. The trial court granted the relief of declaration of title and recovery of possession. It did not deal with the relief of partition. In the appeal preferred by the 4th defendant, the lower appellate court framed the following points, for consideration: (1) Whether the defendants 2 and 3 had right, title and possession in the plaint schedule property to convey the same to the plaintiffs 1 and 2 under Exs.A-2 to A-5 sale deeds and rectification deeds? (2) Whether the plaintiffs have got title to the plaint schedule property and are entitled for possession thereof and mesne profits therefrom from the 4th defendant? (3) Whether the plaintiffs are entitled for the alternative relief of partition, separate possession and profits as prayed for? It answered all of them, in favour of the 4th defendant. 10. According to the plaintiffs, the suit schedule property was held absolutely by the 2nd defendant, and that it was given to her, by her parents. The trial court held that the suit schedule property was given to the 2nd defendant by her father towards Pasupu Kumkuma, and thereby, she was entitled to transfer the same, in favour of the plaintiffs. The lower appellate court reversed this finding, and held that the record clearly discloses that the property was held by Manikyalu and that he in turn, inherited it from his father, and that the question of it having been given to the 2nd defendant, towards Pasupu Kumkuma, does not arise. The lower appellate court reversed this finding, and held that the record clearly discloses that the property was held by Manikyalu and that he in turn, inherited it from his father, and that the question of it having been given to the 2nd defendant, towards Pasupu Kumkuma, does not arise. Having recorded this finding, the lower appellate court proceeded to hold that the 1st defendant is the absolute owner and that the transfer made by him, in favour of 4th defendant, is valid and legal. In the process, certain observations were made by the lower appellate court, about the validity and truthfulness of the transactions between the plaintiffs and defendants 2 and 3. 11. The basis for treating the suit land, as the absolute property of the 1st defendant, was that in an oral partition that took place in the year 1972, it has fallen to his share. Once it is admitted that the property stood in the name of Manikyalu, it became imperative, to examine the nature of its devolution, to his successors. If the Law of Succession operated, it were to have devolved in equal shares, in favour of defendants 1 to 3. Any other kind of arrangement or disposition ought to have been pleaded and established, through cogent evidence. While the trial court did not feel the necessity of either framing any issue, on the plea of oral partition, taken by the 4th defendant, and held that the suit schedule property was given to the 2nd defendant towards Pasupu Kumkuma, the lower appellate court did not frame any point on this aspect, but held that it has fallen to the share of 1st defendant, in such partition. 12. It does not need much emphasis that, whenever a prior partition is pleaded in a suit for partition, the burden is heavily upon the one, who pleads it. The fact that the relief of partition was claimed as an alternative, does not make much of the difference, in this regard. The 1st defendant remained ex parte. It was for the 4th defendant, to substantiate the plea of prior partition, among the coparcener of the joint family, headed by Manikyalu. The record does not disclose that the lower appellate court has undertaken any discussion, on this aspect. The 1st defendant remained ex parte. It was for the 4th defendant, to substantiate the plea of prior partition, among the coparcener of the joint family, headed by Manikyalu. The record does not disclose that the lower appellate court has undertaken any discussion, on this aspect. Even if the plaintiffs have failed to prove that the property was given as Pasupu Kumkuma to the 2nd defendant, the alternative relief of partition remained intact, and it ought to have been dealt with, by the lower appellate court, by framing a point, on the same. 13. In paragraph 22 of its judgment, the lower appellate court expressed the view that the alternative prayer for partition cannot be granted, on the ground that the particulars as to the date of death of Manikyalu were not made available. Once the factum of death of Manikyalu is not in dispute, there must not have been any difficulty, in applying the principles of succession and for directing partition, unless the plea of prior partition was accepted. 14. For the foregoing reasons, the Second Appeal is allowed, and the judgment and decree passed by the lower appellate court are set aside. The matter is remanded to the lower appellate court for fresh consideration and disposal. It is directed that the learned appellate Judge shall frame a specific point, viz; "Whether the 4th defendant had proved the plea of prior partition of the suit schedule property, between late Manikyalu and the 1st defendant." The appellate court shall endeavour to dispose of the appeal, as early as possible, and preferably, before the court closes for Summer Vacation 2007. There shall be no order as to costs.