Research › Search › Judgment

Andhra High Court · body

2007 DIGILAW 973 (AP)

Agri Devasenani v. Maudem Lakshmi

2007-10-03

L.NARASIMHA REDDY

body2007
JUDGMENT The legal representatives of the sole plaintiff in O.S.No.610 of 1984, on the file of I Additional District Munsif, Kakinada, are the appellants. The plaintiff filed the suit against the respondents herein, for the relief of partition of items 1 to 3 of the suit schedule property, into two equal parts, and allotment of one share to him. Through its judgment, dated 1.2.1991, the trial court passed a preliminary decree, in favour of the plaintiff, so far as item No.1 of the suit schedule property is concerned. As regards the other items of property, the suit was dismissed. Aggrieved thereby, respondents 2 and 3 herein, filed A.S.No.46 of 1991, in the Court of Principal Subordinate Judge, Kakinada. The appeal was allowed, through judgment dated 9.12.1994, and the preliminary decree passed by the trial court was reversed. 2. For the sake of convenience, the parties are referred to as arrayed in the suit. 3. The pleadings of the parties in brief were as under: The plaintiff and the father of defendants 1 to 3, by name Veera Swamy, are sons of late Appala Swamy and his wife Ammanna. The suit schedule property was acquired by Ammanna, and she died in the year 1954. After her death, the plaintiff and Veera Swamy were enjoying the property jointly, and a portion of the same was leased to the 4th defendant. Veera Swamy died in the year 1984. When the plaintiff approached defendants 1 to 3 for partition of the suit schedule property, they did not accede to the request. Hence, he filed the suit for partition. 4. The 1st defendant remained ex parte. Defendants 2 and 3 filed a common written statement, stating that, in addition to the plaintiff and Veera Swamy, Ammanna had a daughter, by name Papayamma, and on the death of Ammanna, the property devolved upon Papayamma, since it was the Streedhana property of the former. It was also pleaded that Papayamma had a daughter, by name Appalanarsamma @ Bullemma, and she married Veera Swamy. According to them, the property, which devolved upon Papayamma, had accrued to Appalanarsamma, and on her death, to them, in the form of Streedhana property. A plea of adverse possession, against the plaintiff, also raised. It was also pleaded that Papayamma had a daughter, by name Appalanarsamma @ Bullemma, and she married Veera Swamy. According to them, the property, which devolved upon Papayamma, had accrued to Appalanarsamma, and on her death, to them, in the form of Streedhana property. A plea of adverse possession, against the plaintiff, also raised. The trial court recorded a finding to the effect that there did not exist any link of succession, between Ammanna and defendants 2 and 3, and thereby, passed a preliminary decree. The lower appellate court, on the other hand, took the view that the plaintiff failed to prove his case, and the preliminary decree ought not to have been passed, on the basis of the evidence adduced on behalf of the defendants. 5. Sri J.Prabhakar, learned counsel for the appellants, submits that in a suit for partition, the distinction between plaintiff and defendant virtually gets blurred, and there was no justification for the lower appellate court, in setting aside the preliminary decree. He further contends that once the relationship, between the plaintiff and the father of defendants 1 to 3, was not disputed, and when defendants 2 and 3 wanted to deny the benefit of succession to the plaintiff, burden squarely rested upon them, to prove the necessary facts, to disrupt the chain of succession. 6. When the service of notice could not be affected upon the respondents, the appellants filed C.M.P.No.756 of 2005, seeking permission to effect substituted service. Permission was accorded and the substituted service has since been affected, by publication in a newspaper. The respondents have not entered appearance, and they have chosen to remain ex parte. 7. The only issue framed by the trial court was, as to whether the plaintiff is entitled for the preliminary decree for partition. The plaintiff deposed as PW- 1, and had repeated the facts pleaded by him, in the plaint. He has filed a reply, dated 10.8.1984, received by him from defendant No.4, and the same is marked as Ex.A-1. On behalf of defendants, Dws-1 to 3 were examined, and Exs.B- 1 to B-6 were marked. 8. The relationship between the plaintiff, on the one hand, and the father of defendants 1 to 3, on the other hand, was not disputed. The 1st defendant is the son and defendants 2 and 3 are the daughters of Veera Swamy. On behalf of defendants, Dws-1 to 3 were examined, and Exs.B- 1 to B-6 were marked. 8. The relationship between the plaintiff, on the one hand, and the father of defendants 1 to 3, on the other hand, was not disputed. The 1st defendant is the son and defendants 2 and 3 are the daughters of Veera Swamy. The plaintiff did not mention in the plaint that he had any sisters. In the rejoinder, however, he mentioned that there was a sister, by name Somamma, and she died unmarried, long before. As against this version, defendants 2 and 3 pleaded that there was a daughter, by name Papayamma, to Ammanna, and their mother Appalanarsamma is the daughter of Papayamma. By stating this chain of relationship, they pleaded that the streedhana property of Ammanna had passed on to them, on the successive deaths of concerned predecessors in title. 9. The independent witness examined on behalf of defendants was DW-2. The version presented by her was totally at variance, with what was pleaded by defendants 2 and 3. This witness stated that Ammanna had two daughters and the mother of defendants 2 and 3 is the daughter of one of them, by name Betha Ramayamma. In the process of offering explanation, she stated that Betha Ramayamma is not the daughter of Ammanna, but the daughter by courtesy to Appala Swamy and his wife Ammanna. The confusion brought about through this deposition, was not at all explained by re-examining this witness, or by examining any other independent witnesses. Therefore, the whole effort of the defendants 2 and 3, in breaking the chain of succession to the plaintiff and Veera Swamy, and to put parallel chain of succession through the alleged daughter of Ammanna, naturally failed. 10. The lower appellate court sought to explain the serious discrepancy and defect, in the version of the defendants, by observing that it is for the plaintiff to prove his case, and that he cannot depend upon the weakness of the case of the defendants. The said observation would certainly have been correct, had it been a suit of other categories. In a suit for partition, irrespective of the manner in which a party is arrayed, one is entitled to the benefit, and subject to obligation, as any other. The suits of this nature loose their adversarial character and thereby, the lines of conflict virtually get blurred. In a suit for partition, irrespective of the manner in which a party is arrayed, one is entitled to the benefit, and subject to obligation, as any other. The suits of this nature loose their adversarial character and thereby, the lines of conflict virtually get blurred. The effort of the court in a suit for partition would be only to ascertain the entitlement of the parties to the shares, irrespective of the fact whether they figure as plaintiff or defendant, and to determine the properties that are available for partition. Further, once the relationship of plaintiff and the father of defendants 1 to 3, was not disputed, and defendants 2 and 3 intended to establish a parallel line of succession, the burden was squarely upon them, to prove their case. Therefore, the view taken by the lower appellate court, in reversing the judgment of the trial court, only on the ground that the plaintiff did not plead independently about the relationship, cannot be accepted. 11. From the above, it has become evident that the suit schedule property did not accrue to defendants 2 and 3, as streedhana property, as pleaded by them. Consequently, it becomes available for partition. The plea of adverse possession taken by the defendants, becomes equally untenable. 12. For the foregoing reasons, the Second Appeal is allowed, and the judgment and decree of the lower appellate court are set aside. Consequently, the preliminary decree passed by the trial court shall revive. There shall be no order as to costs.