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2013 DIGILAW 142 (AP)

Mukuthi Chilakamma v. Cheelapalle Govindaiah

2013-02-27

L.NARASIMHA REDDY

body2013
JUDGMENT : The plaintiff in O.S.No.1023 of 2000 on the file of the III Additional Junior Civil Judge, Chittoor is the appellant. She filed the suit for the relief of declaration of title and perpetual injunction in respect of the suit schedule property. She pleaded that the suit land was purchased from one Sri C.Krishnaiah (P.W.3), brother of the 1st respondent herein, through a sale deed, dated 10.11.1999 (Ex.A1) and that ever since then, she is in possession and enjoyment of the property. It was also pleaded that P.W.3 got the suit schedule property in a family partition between himself, the 1st respondent and his other brothers in the year 1979 and thereafter, he was issued pattadar pass books and title deeds in respect of the land. The appellant is also said to have been issued pattadar pass book, marked as Ex.A2. Her grievance was that the 1st respondent and his sons, respondents 2 and 3, started proclaiming title over the land and trying to interfere with her possession. 2. The 1st respondent filed a written statement opposing the suit. He stated that at the age of 12 years, he went away from the joint family, which was in utmost poverty, and worked as a farm servant. He stated that over the period, he made savings and purchased the suit schedule property under sale deeds, Exs.B1 and B2 in the years 1969 and 1973 respectively. He denied partition pleaded by the appellant. It is also stated that pattadar pass books and title deeds were manipulated and there are certain interpolations in them. 3. The trial Court decreed the suit through judgment, dated 30.10.2004. Thereupon, the respondents filed A.S.No.203 of 2004 in the Court of the IX Additional District Judge (Fast Track Court), Chittoor. The appeal was allowed through judgment, dated 24.04.2012. Hence, this second appeal. 4. Sri Vedula Srinivas, learned counsel who appeared on behalf of the appellant, submits that once the relationship between P.W.3, the vendor of the appellant and the 1st defendant as brothers, is established, a presumption ought to have been drawn as regards existence of joint family and possession of the joint properties anterior to the partition. Hence, this second appeal. 4. Sri Vedula Srinivas, learned counsel who appeared on behalf of the appellant, submits that once the relationship between P.W.3, the vendor of the appellant and the 1st defendant as brothers, is established, a presumption ought to have been drawn as regards existence of joint family and possession of the joint properties anterior to the partition. He contends that the trial Court has examined the oral and documentary evidence and has arrived at a conclusion that P.W.3 got the suit schedule property in the family partition and thereafter, he sold it in favour of the appellant. He contends that the lower appellate Court has ignored several important factors, such as there being pattadar pass books and title deeds in favour of P.W.3 and the appellant and that the 1st respondent and his brother, P.W.3, and their other brothers executing Ex.A7 in the year 1973. 5. The appellant rested her claim on the purchase made by her through Ex.A1 from P.W.3. The 1st respondent, on the other hand, pleaded that the suit schedule property was purchased by him in the years 1969 and 1973 and that the title thereof did not pass on to anyone. 6. The trial Court framed the following issues for its consideration: 1. Whether the vendors of the plaintiff have right, title to alienate the suit property to the plaintiff? 2. Whether the plaintiff is in possession and enjoyment of the suit schedule property? 3. Whether the suit without a prayer for possession is maintainable? 4. Whether the plaintiff is entitled for permanent injunction as prayed for? 5. Whether the plaintiff is entitled for declaration (of his right over the) suit properties? 7. On behalf of the appellant, P.Ws. 1 to 4 were examined and Exs.A1 to A9 were filed. On behalf of the respondents, D.Ws.1 to 3 were examined and Exs.B1 to B3 were filed. The suit was decreed and in the appeal preferred by the respondents, the lower appoint Court framed the following points for its consideration: 1. Whether P.W.3 got title to alienate the suit property in favour of the plaintiff under Ex.A1? 2. Whether D-1 had purchased the written statement schedule property under Exs.B1 and B2 with his own earnings and it is his self-acquired property? The appeal was allowed. 8. Whether P.W.3 got title to alienate the suit property in favour of the plaintiff under Ex.A1? 2. Whether D-1 had purchased the written statement schedule property under Exs.B1 and B2 with his own earnings and it is his self-acquired property? The appeal was allowed. 8. Since the second appeal arises out of a reversing judgment, the matter is heard in detail and is examined with reference to settled principles of law. 9. It is true that the relationship between the vendor of the appellant, namely P.W.3 and the 1st respondent as brothers, is not in doubt. That by itself, however, does not lead to a presumption that any item of property acquired by the 1st respondent or for that matter, P.W.3 is joint in nature. It is a matter of record that the suit schedule property was purchased by the 1st respondent through Exs.B1 and B2. Heavy burden rested upon P.W.3 and thereby, upon the appellant, to establish that the family comprising of P.W.3, 1st defendant and other brothers remained joint by the time the property was purchased under Exs.B1 and B2 and that such purchase was from the nucleus of the joint family. There is hardly any evidence worth its name on this aspect. The 1st respondent has demonstrated that he parted ways with the family at the age of 12 years, worked as farm servant for a considerable period and purchased the suit schedule property under Exs.B1 and B2. When the 1st respondent was so meticulous to arrange his state of affairs that he purchased the property through a registered document, even while working as a farm servant, it is just unimaginable that a partition between himself and other brothers has taken place other than through a deed of partition. 10. There may be instances where family partitions take place orally and such partitions are also recognized in law. However, that would be possible only when the events preceding and succeeding the partition are proved to the satisfaction of the Court. While the existence of a joint family and possession of joint properties by the family must be proved as facts preceding partition, the factors such as mutation of entries in the revenue records and independent exercise of rights of ownership by the co-parceners on the respective share must be proved as an event subsequent to the partition. While the existence of a joint family and possession of joint properties by the family must be proved as facts preceding partition, the factors such as mutation of entries in the revenue records and independent exercise of rights of ownership by the co-parceners on the respective share must be proved as an event subsequent to the partition. It is only then, that it would be possible for a Court to act upon an oral partition. 11. In the instant case, a pale attempt was made to prove partition by placing reliance upon Ex.A7. That document is a sale deed and by itself it does not suggest either existence of joint family, much less the factum of partition. The lower appellate Court has taken the correct view of the matter by analyzing the evidence on record and this Court is not inclined to interfere with the same. No substantial question of law arises 2for consideration in the second appeal. 12. The second appeal is accordingly dismissed. There shall be no order as to costs. 13. The miscellaneous petition filed in this appeal shall also stand disposed of.