THE HON'BLE SRI JUSTICE M. LAXMAN
SECOND APPEAL No.711 OF 2001
JUDGMENT:
1. This Court by order dt.18.07.2002 while admitting the appeal, treated grounds No.1 to 3 mentioned in the grounds of appeal as substantial questions of law. In fact, in the Memorandum of Ground of Appeal, there is no specific framing of substantial question of law, which is required to be there. Therefore, such procedure is not in tune with the provision of Section 100 of Code of Civil Procedure. Thus, this Court re- framed the following substantial question of law:
Whether the findings of both the Courts below in holding that there was prior partition between the plaintiffs' father and his brother in respect of suit schedule land, suffers from any perversity?
2. Heard both sides on the above substantial question of law.
3. The present appeal has been directed against judgment and decree dated 08.03.2001 passed in A.S.No.3 of 2000 by the Senior Civil Judge, Siddipet, wherein and whereby the judgment and decree dt.26.10.1999 passed in O.S.No.214 of 1994 by the Junior Civil Judge, Siddipet was confirmed. The said suit was filed by the appellants/plaintiffs for partition and separate possession and the same was dismissed by the trial 2 ML,J SA No.711 of 2001 Court and was confirmed in the first appeal. Hence, the present second appeal.
4. The present appeal is at the instance of the plaintiffs. The respondents herein are the defendants. For brevity, the ranks of the parties as they were referred in the suit, is maintained.
5. The sum and substance of the case of the plaintiffs is that except plaint "B" schedule properties, the other properties are joint family properties of plaintiffs and defendants. The "B" schedule property is the self-acquisition of plaintiffs' father i.e. defendant No.1. According to them, there was no partition among the plaintiffs' father and his brothers. On the basis of collusive decrees obtained in O.S.No.304 of 1986 and O.S.No.305 of 1986, the defendants other than defendant No.1, claiming that the partition was effected much prior to the decrees and asserted that all the suit schedule properties were joint family properties and they were partitioned previously and they were in occupation of independent properties. According to them, the decrees in O.S.No.304 of 1986 and O.S.No.305 of 1986 are result of collusion and undue influence, and prior to that also, defendants No.2 and 3 filed O.S.No.290 of 1983 wherein the claim was that there was oral partition. Subsequently, in O.S.No.138 of 1985, defendants No. 2 and 3 filed written statement claiming that there 3 ML,J SA No.711 of 2001 was no partition. Defendants No.2 and 3 are affiliated to PWG (Naxalite group belonging to Chandrapulla Reddy wing and on account of such organization, under the coercion, defendant No.1 had to make admission in O.S.Nos.304 and 305 of 1986. As a result of such coercion and undue influence, the consent decrees were passed, which in fact, was not free consent and they are not binding. It is also claimed that even by going to the distribution of properties claimed under said decrees, there was unequal distribution which corroborates the fact of such consent decrees were result not from free consent. Therefore, they filed the present suit for partition.
6. Defendant No.1 was set ex parte. The other defendants filed written statement. According to them, the suit schedule properties were partitioned orally much prior to 1986 and after partition was effected, cross suits were filed by and against each other. Whereunder there was admission by defendant No.1 as well as defendants No.2 and 3 to the effect that there was an oral partition and decrees were passed on the basis of such admission and injunctions were granted in respect of shares allotted to them in the oral partition in the year 1983. After such decrees were passed, the mutations were effected. Respective parties were enjoying properties which were allotted to them, as such, this suit is not maintainable and prayed for dismissal of the suit.
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7. Basing on the above pleadings, the Primary Court framed the following issues:
1. Whether the defendants No.1 to 3 and their father effected partition of the joint family properties in August, 1985 as contended in para No.15 of written statement of defendants No.2 and 3, if so, whether the oral partition was acquiesced and acted upon?
2. Whether the shares allotted to the defendants No.1 to 3 in the said partition were equally and fairly adjusted in value and utility?
3. Whether the first defendant sold the lands in Sy.No.444, 596 and 628 that fell in the partition to his share?
4. Whether the defendants No.2 and 3 made improvements in Sy.No.926 and 928 and to the house No.6-4 as pleaded in paras 19 and 20 of written statement?
5. Whether the suit of the plaintiffs is barred by limitation?
6. Whether the suit is properly valued and Court fee paid is correct?
7. Whether the plaintiffs are stopped from claiming partition of the suit properties?
8. Whether the suit is bad for non-joinder of necessary parties as pleaded in the written statement by the defendants No.2 to 5?
9. Whether the plaintiffs are in joint possession of suit properties?
10.What are the properties available for partition?
11. To what relief?
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8. The plaintiffs in order to prove their case, got examined PWs.1 to 4 and relied upon Ex.A1 to A18. On behalf of defendants, DW.1 was examined and Ex.B1 to B3 were marked.
9. The trial Court as well as the First Appellate Court after appreciating the evidence, more particularly, defendants No.1 to 3 in O.S.No.304 and 305 of 1986, and oral evidence of both parties, found that there was prior partition and consequently held that the properties are not available for partition and the Courts also held that schedule "B" properties are also included in the partition, and it cannot be said that it is the exclusive property of defendant No.1 and consequently, the suit filed by the plaintiffs was dismissed. Hence, the present second appeal is filed. [
10. There is no serious dispute that in O.S.No.304 and 305 of 1986, defendants No.1 as well as defendants No.2 and 3 sought injunctions in respect of specified properties claiming that they were allotted such properties in oral partition effected in the year 1983. These pleadings of the parties were brought on record as Ex.A8, A9 and Ex.B1. Parties were put to notice of such pleadings and defendant No.1, who was examined as PW.4, withdrew such pleadings. The trial Court as well as the First Appellate Court also considered the oral evidence of partition. Admittedly, both parties agreed that there was division of family status 6 ML,J SA No.711 of 2001 even prior to 1990 as admitted by the plaintiffs. There is also admission by PW.4 in O.S.No.138 of 1985 saying that the partition was effected before the suit was filed. There are also pleadings from defendants No.2and 3 in O.S.No.290 of 1983 to the effect that there was no partition.
11. In the present case, the plaintiffs claimed that the suit decreed in O.S.No.304 and 305 of 1986 were result of coercion and undue influence. Till date the said decrees were not challenged by defendant No.1 whose consent was not free consent. According to them, such consent was given on account of threat from PWG Chandrapulla Reddy group. The evidence also shows that those claims in the above two suits were given effect by both parties by obtaining mutation entries in the revenue records. There is also evidence that the respective parties were in possession of the lands which they have sought for injunction in the above suits. Both Courts have considered the electricity connection to the meters in agricultural fields to show that both parties have been enjoying the properties in respect of claims they have made for injunction in the said suits. Both the Courts also took the fact that the present suit was filed belatedly. After appreciating the evidence on record and the enjoyment of the parties in respect of lands they have consented for under the consent decrees found that there was already partition.
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12. In the present case, the plaintiffs are not challenging the effect of consent decrees in O.S.No.304 and 305 of 1986. It is also not their case that there was inequitable distribution of properties in oral partition prior to the above suits so as to claim re-partition of the properties. Their case is that no partition is effected and the evidence is contrary to the claim made by the plaintiffs. In fact, defendant No.1 has not challenged the claim of the defendants No.2 and 3 by instituting appropriate suits for partition and the Courts below accordingly considered the evidence on record in coming to the conclusion that there was partition. This Court does not find any perversity in the findings of both the Courts below. Hence, the appeal is liable to be dismissed.
13. Accordingly, the appeal is dismissed. There shall be no order as to costs.
14. As a sequel, pending miscellaneous applications, if any, shall stand closed.
_______________ M. LAXMAN, J DATE:05.09.2022 BDR