HON'BLE SRI JUSTICE M.VENKATA RAMANA
SECOND APPEAL No. 46 of 1999
JUDGMENT:
The defendants in O.S.No.348 of 1987 on the file of the Court of then District Munsif (present Junior Civil Judge), Dhone, Kurnool District are the appellants. The respondents were the plaintiffs in the suit.
2. The 1st plaintiff died during trial. For convenience, the deceased 1st plaintiff is referred to as such in this judgment and their children as the respondents 1 to 3.
3. The appellants laid the suit for partition of the plaint schedule house into four (04) shares and to allot them three (03) such shares.
4. The parties are closely related. A genealogy is available on record as Ex.A1 giving their relationship.
5. The plaint schedule house, which shall hereinafter be referred to as 'the suit house' for convenience, originally belonged to Sri Polisetty Naganna. Sri Narayana, Sri Atchaiah, Sri Satyanarayana and Sri Seshaiah are his sons. Upon death of Sri Polisetty Naganna, his sons became entitled to this house.
6. The deceased 1st plaintiff is wife of Sri Narayana and whereas the respondents 1 to 3 are their children.
7. The 4th respondent is the wife of Sri Atchaiah and respondent No.5 is their daughter.
8. The 6th respondent is the wife of Sri Seshaiah and the 7th respondent is their son.
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9. The 1st appellant is the wife of Sri Satyanarayana and the appellants 2 to 4 are their children.
10. The suit house is bearing Door Nos.13/74 and 13/78 is in Kothapeta of Dhone town, within the boundaries mentioned in the plaint schedule.
11. It is the case of the respondents that since this house is their ancestral joint family property, they are all entitled to their shares therein. They further contended that during the lifetime of sons of Sri Naganna, there was enjoyment of this house in two portions when Sri Seshaiah was a minor. While Sri Narayana and Sri Seshaiah were in occupation of one portion, Sri Satyanarayana and Sri Atchaiah were living in another portion and it is stated that it was on account of the differences among the women folk. Their further case is that later on Sri Narayana migrated to Ubicherla of Ananthapur District for living, while Seshaiah also left Dhone in the year 1964, whose whereabouts were not known and thus presumed dead. They further claimed that in spite of their demands and issuance of legal notice dated 04.09.1987, the appellants did not come forward to divide this property and hence they were constrained to lay the suit.
12. The appellants resisted the suit and mainly contended that there was prior partition among these four brothers of this house prior to the year 1953 and therefore the suit as such could not lie. They also contended that the 1st plaintiff is the concubine of Sri Narayana and hence the respondents 1 to 3 are his illegitimate children. They further contended that Sri Seshaiah left Dhone along with another woman and who never returned. Their contention further is that Sri Satyanarayana during his lifetime got renovated this house and reconstructed spending 3 MVR,J S.A.No.46 of 1999 more than Rs.20,000/-, who continued to be in possession and enjoyment of the same since this house was allotted to his share and was also paying property tax to the Gram panchayat. Thus asserting possession and enjoyment by Sri Satyanarayana of this house adverse to the interests of other sharers, they claimed that he acquired right and title to this property by adverse possession.
13. On the pleadings, the trial Court settled the following issues:
"1. Whether the plaintiffs are entitled for partition and separate possession in the suit house?
2. Whether the defendants perfected their title to suit property by adverse possession?
3. To what relief?"
14. At the trial, the 7th respondent examined himself as P.W.1, 5th respondent as P.W.3 and mother of the 6th respondent as P.W.2 while relying on Ex.A1 to Ex.A10. On behalf of the appellants, the 4th appellant was examined as D.W.1, 1st appellant as D.W.3, D.W.2 alleged to be another wife of Sri Seshaiah while D.W.4 is claimed to be the tenant of the suit house, in support of their contention while relying on Ex.B1 to Ex.B9.
15. The learned trial judge believed the defence of prior partition while did not bestow attention to the claim of legitimacy or otherwise of the 1st plaintiff and the respondents 1 to 3 as legal heirs of Sri Narayana and thus dismissed the suit rejecting the relief.
16. A.S.No.44 of 1995 was filed against the decree and judgment of the trial Court on the file of the Court of the learned I Additional District Judge, Kurnool. In the appeal, rejecting the claim of illegitimacy between the 1st plaintiff and Sri Narayana as well as children born to them being 4 MVR,J S.A.No.46 of 1999 the respondents 1 to 3, similarly rejecting the contention of the appellants raised at the trial that the 7th respondent being not the son of Sri Seshaiah, rejecting the prior partition, reversed the findings so recorded by the trial Court. Ultimately the suit was decreed in the appeal as prayed.
17. In these circumstances, the second appeal is preferred by the appellants.
18. Sri J.Janaki Rami Reddy, learned counsel for the appellants and Sri K.Rathangapani Reddy, learned counsel for the respondents addressed arguments.
19. This second appeal was admitted on 22.02.1999 on the following substantial question of law:
"In view of the admission of P.W.1 that they were residing separately and in view of the presence of Ex.B1 mortgage deed showing that defendant mortgaged the property at their own, whether the appellate Court is justified in holding that there was no partition in the family and consequently decreeing the plaintiff suit by reversing the judgment and decree of the trial Court?"
20. Sri J.Janaki Rami Reddy, learned counsel for the appellants, strenuously contended that the learned appellate judge unnecessarily attached importance to the question of illegitimacy attributed to the 1st plaintiff and respondents 1 to 3 and 7 though it is a non-issue which was rightly relegated to the background by the learned trial Judge. He further contended that no findings as such were recorded by the learned appellate Judge relating to the effect of Ex.B1- registered mortgage deed dated 15.07.1953, which clearly recorded the prior partition among the four brothers who were sons of Sri Naganna of this property and therefore appreciation of evidence by the appellate Court is not proper. Thus seriously assailing the judgment of the first appellate Court, Sri J.Janaki Rami Reddy, learned counsel for the appellants, contended that 5 MVR,J S.A.No.46 of 1999 in the absence of any evidence supporting the claim of the respondents, their version for partition could not have been granted and thus contending, it is requested to allow this second appeal, restoring the decree and judgment of the trial Court.
21. Sri K.Rathangapani Reddy, learned counsel for the respondents, contended that there is no reference to Ex.B1 mortgage deed in the written statement nor any plea relating to redemption of this debt nor any evidence therefor and thus it is not open for the appellants to rely on Ex.B1 or its effect. It is further contended for the respondents that in the absence of any independent evidence to support their version, since the plea of ouster of other members of the family from enjoying the suit house is a new plea raised in this second appeal, the same cannot be considered. It is further contended that there are no substantial questions of law requiring attention of this Court in this matter, while supporting the judgment in appeal and the reasons assigned therein. The learned counsel for the respondents also contended that there is no material or evidence to prove the oral partition set up prior to 1953 in relation to the suit house and therefore, the appellate Court is right in reversing the decree and judgment of the trial Court.
22. The nature of the suit house that originally belonged to Sri Polisetty Naganna for the purpose of the present matter, is the ancestral joint family property of these parties.
23. Therefore, when the appellants specifically set up prior partition sought to be proved by Ex.B1 and oral evidence, the burden is squarely on them to establish such fact.
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24. Ex.B1 is a simple registered mortgage deed dated 15.07.1953. Sri Narayana through whom the deceased 1st plaintiff and the respondents 1 to 3 are claiming a share in the suit house, had borrowed Rs.100/- thereunder from one Sri Pedda Venkatappa @ Peddanna, son of Sri Naraboyina Bala Venkatappa, mortgaging western part of the suit house. As per the endorsement on the reverse of the 3rd page of Ex.B1, this debt was redeemed by Sri Narayana.
25. The schedule to Ex.B1 described its subject matter being western portion of the suit house, which was allotted to the executants therein in the partition among four brothers. Sri Seshaiah was minor by that date and on his behalf Sri Narayana and on his own behalf had executed this document. The northern boundary of the property so mortgaged is specifically described in Ex.B1 being the share allotted to Sri Atchaiah and Sri Satyanarayana in the suit house.
26. Therefore, what was mortgaged under Ex.B1 was a part of the suit house by Sri Narayana and on behalf of Sri Seshaiah. The entire suit house was not the subject matter of this mortgage and the portion stated to be allotted to Sri Atchaiah and Sri Satyanarayana was not its subject matter.
27. The averments in the plaint are also to the effect that Sri Narayana along with his minor brother Sri Seshaiah was living in one portion and the other portion was in occupation of Sri Atchaiah and Sri Satyanarayana which necessity had arisen on account of the differences among the women members in the family.
28. Not only that Ex.B1 has a presumption in its favour in terms of Section 90 of the Indian Evidence Act, since it remained more than 30 year old document by the date when it was introduced in evidence at the 7 MVR,J S.A.No.46 of 1999 trial i.e. on 27.07.1994, there is also a clear admission of P.W.3, namely the 5th respondent in cross-examination on behalf of the appellants about this mortgage. It is a clear admission of the mortgage covered by Ex.B1. No further proof is required in this context.
29. Thus, it is established that the suit house was divided prior to the year 1953 among the four brothers into two portions, one allotted to Sri Narayana and Sri Seshaiah together and another to Sri Atchaiah and Sri Satyanarayana.
30. The appellants claimed the entire suit house though Sri Satyanarayana was entitled to 1/4th share in this house or half share in the portion allotted to him by means of this prior oral partition, earlier to the year 1953 along with Sri Atchaiah.
31. One of the contentions of the appellants at the trial as well as in the 1st appeal apparently was the status of the 1st plaintiff and the respondents 1 to 3. The deceased 1st plaintiff is the mistress of Sri Narayana, according to their version, who in fact had married one Smt. Sunkalamma and after her death, it is the contention of the appellants, that the deceased 1st plaintiff joined Sri Narayana. Except the interested testimony of D.W.1 and D.W.3 in this context, there is no other material to support such version. On the other hand, the testimony of P.W.3 (the 4th respondent) is supported by the testimony of P.W.2, who is none other than the mother of the 6th respondent, established that the 1st plaintiff being the legally wedded wife of Sri Narayana and the respondents 1 to 3 are their children.
32. Attempt was also made at the trial to show that P.W.1, who is the 7th respondent, as a child not born to Sri Seshaiah and questioning his 8 MVR,J S.A.No.46 of 1999 legitimacy. This contention should be rejected as was rightly done by the learned appellate Judge assigning reasons. Most important factor to consider in this context is that there was never such a plea in the written statement of the appellants nor had they clearly set out that the 7th respondent was not born to Seshaiah.
33. Their attempt to rely on the testimony of D.W.2-Smt. Sunkamma, who was then working as a watch woman in Girls Hospital at Aaredu of Prakasam District, did not make out their cause.
34. It is not in dispute that Sri Seshaiah left Dhone. It is the version of the appellants that he eloped with a woman and began to live at Ongole. Smt.Sunkanna-D.W.2 claimed that Sri Seshaiah married her and by whom she has two daughters and a son. She claimed that both of them eloped three months after the marriage of Seshaiah and the 6th respondent. Sri Seshaiah is no more and according to D.W.2 he died in or about the year 1970. It is not in dispute that after leaving Dhone, Sri Seshaiah did not visit that place again.
35. The fact that Sri Seshaiah left Dhone three months after the marriage, is belied by the material placed by the respondents on record. He lived for a considerable time at Dhone after the marriage and it is also deposed to by P.W.2 and P.W.3. Their version is that an year after birth of the 7th respondent (P.W.1), Sri Seshaiah left home, since he was suffering from mental derailment.
36. D.W.1, who is none other than the 4th appellant, deposed that Sri Seshaiah was running petty-shop before he left home. In that context, to prove that he was running business, the respondents had also let-in evidence producing Ex.A4 to Ex.A8-account book said to have been 9 MVR,J S.A.No.46 of 1999 maintained by him with relevant entries therein, apart from Ex.A9 and Ex.A10 reflecting the 7th respondent as son of Sri Seshaiah.
37. Even otherwise, such question sought to be raised during trial by the appellants could not have been given credence to for want of basis in pleadings. At the trial the respondents also questioned legitimacy of relationship between the 1st appellant and Sri Satyanarayana stating that she was not married by Sri Narayana and that she in fact married one Lakshmana. They further contended that she remained kept mistress of Sri Satyanarayana, which she denied. Even this version cannot be considered since it was never the pleading in the plaint of the respondents. Nor P.W.1 to P.W.3 deposed at the trial in this context.
38. The appellants purposely did not pursue the question of legitimacy so put forward at the trial. Even if the respondents 1 to 3 are considered being illegitimate children of Sri Narayana, still they are entitled for a share in the suit house by virtue of Section 16 of the Hindu Marriage Act. Their claim as such cannot get obliterated nor on such score the appellants would be entitled to deny them a share in the suit house. In fact, it was a purposeless defence set up by them and if at all the 1st plaintiff is treated likewise as sought to be described by the appellants, at best she would not be entitled for a share in the suit house. The defence so pursued by the appellants at the trial as well as in the appeal thus remained without any purpose and that it did not affect the claim of the respondents 1 to 3 as such.
39. In the course of trial, the appellants had also set up that the 4th respondent had given up her share upon receiving four (04) tulas of gold from Sri Satyanarayana and thus relinquished her share as well as of the 10 MVR,J S.A.No.46 of 1999 5th respondent. Again it is a plea which is not based on the pleadings in the written statement. A reply notice under Ex.B9 was issued by the appellants to Ex.A2 legal notice caused by the respondents for partition of the suit house. Except referring to prior partition, the appellants did not set out a claim of similar nature in an attempt to divest the respondent Nos.5 and 6 from claiming a share in the suit house.
40. Therefore, on the consideration of the material, it is manifest that the respondents are entitled to their shares in the suit house. Rightly they claimed three shares out of four in the suit house since all of them represented three brothers, namely Sri Narayana, Sri Atchaiah and Sri Seshaiah, whereas the appellants are entitled for only one share together representing the share of Sri Satyanarayana.
41.However, the appellants came up with a plea of acquisition of right and interest to the suit house by Sri Satyanarayana by adverse possession. It was negatived by both the Courts below upon consideration of the material. As seen from the grounds set out in the memorandum in this second appeal, question of adverse possession is sought to be highlighted.
42. Ex.B2 is the certificate of ownership issued by the Executive officer, Gram Panchayat, Dhone stating that the house bearing Dr.No.13/74 stood in the name of Sri Polisetty Satyanarayana and that he was paying property tax to this house as per the House Tax Demand Register maintained by this Gram Panchayat. It is sought to be supported by means of the evidence of D.W.4. His evidence is to the effect that this house stood in the name of Sri Polisetty Satyanarayana as per the Revision Register for the years 1983 to 1988 and also of the year 1993- 11
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94. However, he could not state if this house stood in the name of Sri Satyanarayana prior to the year 1983 and obviously he did not produce any record in this context stating that the relevant registers prior to 1983 were damaged in the record room of their office.
43. Assertion of right and interest by adverse possession is also sought to be established by relying on the testimony of D.W.5, who claimed to be the tenant of the suit house.
44. The appellants are living in a different house than the suit house. They claimed that it was let out to D.W.5. Though D.W.5 claimed that her husband was living in this house prior to their marriage and that she has been living in this house since the year 1967, cross-examination of this witness on behalf of the respondents exposed that there is no record to show her possession of this house from such period. She deposed that she is paying rent to the appellants for this house. But, it is not supported by any documentary proof.
45. Neither there is an averment in the written statement that the suit house was let out to anyone including D.W.5 or her husband nor supported by any documentary proof. However, version of P.W.3 is that she was sharing the rent with Sri Satyanarayana during his lifetime which the appellants also did. Undisputedly, the 1st plaintiff during her lifetime and the respondents 1 to 7 were residents of different places than Dhone by the date of the suit.
46. The material placed by the appellants is not conclusively establishing that Sri Satyanarayana during his lifetime asserted his exclusive right and interest to the suit house, demonstrative of claim of title to it. Mere possession of the property for any length of time unless 12 MVR,J S.A.No.46 of 1999 there is proof of his enjoyment nec vi, nec clan, nec precario vis-à-vis other sharers who are now represented by the respondents, this plea of adverse possession cannot stand.
47. The respondents are entitled for three (03) share out of the suit house and whereas the appellants are entitled for one such share together. Out of these three shares the respondents 1 to 3 being legal heirs of Sri Narayana are entitled for one share and whereas the respondents 4 and 5 are entitled for one such share being the legal heirs of Sri Atchaiah. The respondents 6 and 7 are entitled for one such share being the legal heirs of Seshaiah.
48. The learned appellate Judge has considered and analysed the evidence on record in this context. Right reasons are assigned in the judgment in appeal drawing such inferences and conclusions.
49. In as much as such findings were recorded by the learned appellate Judge on reappraisal of the evidence and material on record, in right perspective, this Court sitting in second appeal cannot lightly interfere.
50. There are no such questions much less substantial question of law raised by the appellants for consideration in terms of section 100 CPC.
51. Therefore, this second appeal should fail since it has no merit.
52. In the result, the second appeal is dismissed confirming the decree and judgment of the appellate Court. Having regard to the close relationship among the parties, they are directed to bear their own costs throughout. Interim order granted in CMP No.1126 of 1999 on 22.02.1999 13 MVR,J S.A.No.46 of 1999 is vacated. The trial Court is directed to proceed further with the final decree application, if any, pending, filed by any of the parties.
As a sequel, pending miscellaneous petitions, if any, stand closed. Interim Orders, if any, stand vacated.
_________________________ JUSTICE M.VENKATA RAMANNA Dt:02.11.2021 RR 14 MVR,J S.A.No.46 of 1999 HON'BLE SRI JUSTICE M.VENKATA RAMANA SECOND APPEAL No.46 of 1999 Dt:02.11.2021 RR