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2007 DIGILAW 944 (AP)

K. Gangi Reddy (Died) v. Joint Family

2007-09-26

L.NARASIMHA REDDY

body2007
JUDGMENT:- Defendants 4 and 5 in O.S.No.15 of 1987 on the file of the learned District Munsif, Palamaner are the appellants. 2. For the sake of convenience, the parties are referred to as arrayed in the suit. 3. The plaintiffs, as a joint family, filed the suit, against the defendants, for partition and separate possession of the suit schedule property, admeasuring Ac.0.73 cents, in Survey No.22/3 of Gowni Thimmalapalle Village. They pleaded that that the suit schedule property was held in joint by their ancestors, namely Pedda Gangi Reddy, Chinna Gangi Reddy, Mekanna @ Muni Reddy, Naganna @ Nagi Reddy and Pilla Reddy, cultivated by them, duly passing on the shares to the respective sharers. It was alleged that some of the defendants were trying to alienate the property, by treating it as their exclusive property, and that the necessity had arisen to effect partition of the same. The suit was basically contested by defendants 4 to 9. Other defendants virtually sailed with the plaintiffs. 4. The contesting defendants pleaded that a patta in respect of the suit schedule property was granted in favour of one Sri Papi Reddy, their ancestor, and that it was never held in joint by the plaintiffs and other defendants. It was also pleaded that the plaintiffs do not have any right over the suit schedule property. 5. On their part, the contesting defendants filed O.S.No.223 of 1988 in the same Court, for the relief of declaration and permanent injunction in respect of the same property. The trial Court clubbed both the suits and through a common judgment, dated 25.03.1991, dismissed O.S.No.15 of 1987 and decreed O.S. No.223 of 1988. The plaintiffs filed A.S.No.105 of 1991 in the Court of District Judge, Chittoor, against the judgment in O.S. No.15 of 1987. The appeal was allowed by the lower appellate Court, through its judgment, dated 04.08.1997. Hence, this Second Appeal. 6. Sri K.G. Krishna Murthy, the learned counsel for the defendants submits that the plaintiffs were not clear, as to when the partition has taken place among the 5 brothers, referred to above, and the manner, in which the suit schedule property was left undivided. Hence, this Second Appeal. 6. Sri K.G. Krishna Murthy, the learned counsel for the defendants submits that the plaintiffs were not clear, as to when the partition has taken place among the 5 brothers, referred to above, and the manner, in which the suit schedule property was left undivided. He contends that the record, and in particular Ex.B.1, clearly discloses that a patta in respect of the suit schedule property was exclusively granted in favour of the ancestor of the defendants and there was absolutely no basis for the lower appellate Court in reversing the decree of the trial Court. He further contends that when a common judgment was rendered by the trial Court, in two separate suits, the appeal filed against one of the decrees before the trial Court was not maintainable and the same is liable to be set aside, on that ground alone. 7. Sri P.V. Vidya Sagar, the learned counsel for the plaintiffs, on the other hand, submits that none of the contesting defendants have raised an objection, as to the divisibility of the suit schedule property, and when there was common enjoyment of the same, may be for generations together, the same was liable to be partitioned, as and when the joint owners or co-parceners have demanded the partition of the same. 8. On the basis of the pleadings before it, the trial Co0urt framed the following issues: 1. Whether the suit for partition as framed is maintainable? 2. Whether the suit is bad for non-joinder of Narayanamma widow of Chenga Reddy, Parvathamma, Kalavathamma, daughter of Chenga Reddy, Papi Reddy, Ramakrishna Reddy, Sakunthalamma, Syamalamma, Girija sons and daughters of Chinna Reddy as necessary parties? 3. Whether the defendants 5 to 9 are entitled to exemplary costs? 9. On behalf of the plaintiffs, P.Ws.1 to 3 were examined and Exs.A.1 to A.3 were marked. On behalf of the defendants, D.Ws.1 to 11 were examined and Exs.B.1 to B.20 were marked. In addition to that, the trial Court has taken on record Exs.X.1 and X.2. 10. The suit was dismissed and thereupon, the plaintiffs filed A.S.No.105 of 1991 before the lower appellate Court. It has framed only one point for its consideration viz., whether the property, in question, is joint family property, as pleaded by the plaintiffs, and whether the plaintiffs have share in it. 10. The suit was dismissed and thereupon, the plaintiffs filed A.S.No.105 of 1991 before the lower appellate Court. It has framed only one point for its consideration viz., whether the property, in question, is joint family property, as pleaded by the plaintiffs, and whether the plaintiffs have share in it. The lower appellate Court reversed the judgment of the trial Court and passed a preliminary decree, as prayed for in the suit. 11. In view of the several contentions urged on behalf of the parties before this Court, the following questions arise for consideration: a) Whether A.S.No.105 of 1991 was maintainable, without an appeal being preferred against the decree in O.S.No.223 of 1988; and b) Whether the suit schedule property was found to be joint and thereby, divisible among the parties to the suit. 12. The first question is almost preliminary in nature. The learned counsel for the defendants submits that the trial Court rendered a common judgment in O.S. Nos.15 of 1987 and 223 of 1988 and a solitary appeal being A.S. No.105 of 1991, against the decree in O.S. No.15 of 1987, was not maintainable in law. In effect, he invokes the plea of res judicata against the plaintiffs, on the ground that no appeal was preferred against the judgment and decree in O.S. No.223 of 1988. 13. It is not in dispute that the plaintiffs in O.S.No.15 of 1987 were not impleaded as parties to O.S.No.223 of 1988. The principle of res judicata would operate only against the parties, who are common to both the proceedings. Once it is clear that the plaintiffs in O.S.No.15 of 1987 were not parties to O.S.No.223 of 1988, they were not under obligation to prefer an appeal against the judgment and decree in O.S.No.223 of 1988. In fact, it was impermissible for them. Therefore, the objection raised on behalf of the defendants, in this regard, does not deserve any consideration and it is, accordingly, overruled. 14. Coming to the second question, it needs to be observed that there is any amount of uncertainty, as to the nature of rights of the parties to the suit vis--vis the suit schedule property. Therefore, the objection raised on behalf of the defendants, in this regard, does not deserve any consideration and it is, accordingly, overruled. 14. Coming to the second question, it needs to be observed that there is any amount of uncertainty, as to the nature of rights of the parties to the suit vis--vis the suit schedule property. Even if the most liberal approach is adopted and the distinction as to the plaintiff and the defendant is ignored, it being a suit for partition, several important aspects remain either shrouded in mystery or made clear by any of the parties to the proceedings. 15. The starting point for the claim of the plaintiffs is the enjoyment of the property by the 5 brothers viz., Pedda Gangi Reddy, Chinna Gangi Reddy, Mekanna @ Muni Reddy, Naganna @ Nagi Reddy and Pilla Reddy. The plaintiffs were virtually separated by 4 to 5 generations from the 5 brothers, referred to above. Had it been a case, where the entire property held by the joint family of the 5 brothers, referred to above, continued to be undivided and the occasion to divide arose may be 4 or 5 generations thereafter, no difficulty, as such, would have arisen. The record discloses that the partition among them took place a few generations ago. The manner in and the circumstances, under which the suit schedule property of Ac.0.73 cents remained undivided for generations together, had not at all been explained, be it, in the pleadings or in the evidence, not only either by the plaintiffs or by the defendants. 16. Whenever a partition takes place among the co-parceners, it is presumed to be complete in all respects. Burden squarely rests upon those, who claim that the partition was not complete and was partial. No effort was made, in this direction, by the plaintiffs, much less, they have discharged their burden. This Court desperately scanned through the entire pleadings as well as the oral and documentary evidence, to ascertain as to when the partition in the joint family, consisting of the 5 brothers, referred to above, has taken place and the circumstances, under which the suit schedule property was left undivided. The search, of course, turned out to be in vain. 17. The search, of course, turned out to be in vain. 17. defendants categorically pleaded that a patta in respect of the suit schedule property was granted in favour of the father of the 4th defendant, by name Papi Reddy, way back in the year 1948. The patta certificate was marked as Ex.B.1. A perusal of the same discloses that the interest created in the property was exclusive in nature and nothing was conferred, in common, with others. The document carries its own presumption, having regard to its age. No effort was made by the plaintiffs before the trial Court or the lower appellate Court, to dispel that presumption and to eschew the same from consideration. 18. Sri P.V. Vidaya Sagar, the learned counsel for the plaintiffs made strenuous efforts to convince this Court that the suit schedule property was the subject matter of a Will executed by one of the sons of the 5 brothers, referred to above, being Ex.X.1, and if necessary presumption is attached to it, the conclusion would be that the 5 branches held equal shares in it. Reliance is also placed upon Ex.A.3, a certified copy of the declaration filed before the authorities under the A.P. Land Reforms (Ceiling on Agricultural Holdings) Act. 19. A perusal of Ex. A.3 discloses that the declarant therein made a claim vis- -vis a definite extent of Ac.0.141/2 cents in the said survey number. If at all anything, this document discloses that he had a defined and not an undivided share in it. So is the case with Ex.B.14. Ex.X.1 is a Will and at the most, it represents the version of the executant thereof. These documents, either independently or cumulatively, do not have the effect of diluting the legal effect that flows from Ex.B.1. When Papi Reddy was granted an exclusive patta by an authority of Government in respect of the suit schedule property, it cannot be treated as the one held in joint by a number of others. 20. The plaintiffs ought to have made further efforts, at least, to overcome the presumption, that is provided for under law. Once the joint family, comprising of 5 brothers, was divided, the presumption is that all the items of the properties held by them were subjected to division. Heavy burden lies upon the party, who pleads that some of the items were left to be enjoyed in common. Once the joint family, comprising of 5 brothers, was divided, the presumption is that all the items of the properties held by them were subjected to division. Heavy burden lies upon the party, who pleads that some of the items were left to be enjoyed in common. The record does not disclose as to when the partition among the 5 ancestors have taken place and the manner, in which the suit schedule property was left to be enjoyed in joint. Even assuming that there is some effort on the part of the plaintiffs to explain that the property was being held or enjoyed in joint, no answer, worth its name, is forthcoming, to neutralize the effect of Ex.B.1. As long as Ex.B.1 stands and carries the legal effect and presumption, it becomes totally impermissible for this Court, to treat the suit schedule property as being held in common by the parties to the suit or their ancestors. 21. It is no doubt true that in a suit for partition, every party answers the description of plaintiff and defendant and a different approach needs to be adopted, in the context of placing burden. However, in spite of an attempt made by this Court to get to the root cause viz., when the partition among the 5 brothers referred to above, has taken place and whether the suit schedule property was held by that family and if so, the circumstances, under which it was left out from the purview of the partition, no answer is forthcoming. Under these circumstances, the lower appellate Court was not justified in directing partition of the suit schedule property. 22. Hence, the Second Appeal is allowed and the preliminary decree passed by the lower appellate Court is set aside. There shall be no order as to costs.