THE HONOURABLE SMT. JUSTICE M.G. PRIYADARSINI
A.S.No.299 OF 2004
JUDGMENT:
This appeal is filed by the unsuccessful plaintiff in O.S. No. 12 of 1995 assailing the judgment and decree dated 22.10.2003 on the file of learned Senior Civil Judge, Vikarabad, whereby the suit of the sole plaintiff for partition of the suit schedule 'A' and 'B' properties was dismissed.
2. For the sake of convenience, the parties hereinafter are referred to as they are arrayed before the trial Court.
3. The brief facts of the case, which necessitated the plaintiff to file the present appeal, are as follows:
a) The plaintiff filed the suit for partition in respect of the suit schedule 'A' and 'B' properties contending that he is the son of defendant No.1, defendant Nos. 2 and 6 are the younger brothers of defendant No.1 and defendant No.5 is the daughter of defendant No.1. The lands in Sy. Nos.164, 168, 184, 188, 193, 191 and 190 admeasuring Ac.4.6 guntas, Ac.0.10 guntas, Ac.1.15 guntas, Ac.1.15 guntas, Ac.1.28 guntas, Ac.1.1 guntas and Ac.0.30 guntas respectively, and a House bearing No.2-5, situated at Jalarguda, Hamlet of Allade Village, Chevella Mandal, Ranga Reddy District are the joint family coparcenary properties of plaintiff and defendant 2 MGP, J AS_299_2004 Nos. 1 and 2. Extent of land shown in different survey numbers is the share of father of the defendant Nos. 1 and 2 in his ancestral property. The suit properties have been in joint possession and enjoyment of all the coparceners. The lands in Sy. Nos.164, 168, 188, 193, 191 and 190 are dry agricultural lands and the land in Sy.No.184 is abutting to the village and thus, useful for making plots for house sites.
b) The plaintiff learnt that defendant Nos.1 and 2 colluded with each other with mala fide intention of causing loss to the plaintiff and in pursuance thereof, defendant No.1 is trying to alienate his share of the ancestral property in favour of defendant No.2 without any legal necessity whatsoever. Immediately, he got issued legal notice dated 07.04.1994 to both the defendants, who failed to give reply, in spite of receipt of the legal notice. The Plaintiff demanded both the defendants for partition of all the coparcenary properties, both movable and immovable, and to allot 1/4th share to the plaintiff and 1/4th share to defendant No.1 and ½ share to defendant No.2 but the defendants refused for partition. Thus, the plaintiff filed suit for partition of the suit schedule 'A' and 'B' properties and to put the plaintiff in possession of his 1/4th share and mesne profits from the date of suit till the plaintiff is put in actual possession of his share. 3
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c) After receipt of the summons, defendant Nos.1 and 2 filed their written statements respectively, wherein defendant No.1 denied the plaint averments except admitting the relationship between the parties. The lands are dry agricultural lands and their values, as shown in the plaint, are lesser than the actual value prevailing now. The cause of action, as shown in the plaint, is nothing but imaginary. Defendant No.1 admitted that the plaint schedule properties are in joint possession and enjoyment of all the coparceners. It is denied that defendant Nos.1 and 2 have colluded together with mala fide intention of causing loss to the plaintiff and that they are trying to alienate the ancestral properties. However, defendant No.1 reported no objection if the suit is decreed, separate possession is given to the respective parties to suit as prayed for.
d) Defendant No.2 denied the plaint averments except the relationship between the parties. It is contended that the suit schedule properties are neither joint family properties nor coparcenary properties of plaintiff and defendant Nos.1 and 2. In fact, the suit schedule 'A' and 'B' properties are the exclusive properties of this defendant. The plaintiff is not at all in possession of the suit schedule properties or any part of it.
e) It is contended by defendant No.2 that the partition of the suit 4 MGP, J AS_299_2004 schedule properties took place long back orally i.e., more than 20 years back. The defendant No.1, being Kartha of his own family, sold away his ½ share of suit schedule properties and out of such sale consideration, defendant No.2 purchased lands at Pedda Mangalaram Village of Moinabad from one Venkat Reddy and his son, Hanmanth Reddy. Defendant No.2 is in exclusive and peaceful possession of suit schedule properties continuously as absolute owner for the last 12 years and perfected his title over the suit schedule properties. The suit is bad for non joinder of landed properties of Pedda Mangalaram Village and non joinder of necessary parties and also barred by limitation. The present suit is filed to usurp the properties belonging to defendant No.2. There is no collusion between defendant Nos.1 and 2 as alleged in the plaint.
f) It is further contended by defendant No.2 that no notice was served on him. The plaintiff is not entitled for any share, much less 1/4th share in the suit schedule properties. Defendant No.2 is the exclusive owner and possessor of the suit schedule 'A' and 'B' properties. The plaintiff is not at all in possession of suit schedule properties, hence, the suit for mere partition is not maintainable. The prayer for mesne profits itself would reveal the said fact. The suit is wrongly valued, court fee paid is insufficient and finally 5 MGP, J AS_299_2004 prayed to dismiss the suit with costs.
g) Based on the rival contentions, the following issues were framed by the trial Court:
1. Whether the plaint schedule properties are the join family properties of plaintiff and defendants by the date of suit?
2. Whether the schedule properties were orally partition about two years back between defendant Nos.1 and 2; and defendant No.1 sold his half share in the schedule properties to defendant No.2 and since then defendant No.2 is in exclusive possession and enjoyment of the properties as alleged?
3. Whether the plaintiff is entitled to the relief of partition as prayed for and 1/4th share in them?
4. Whether court fee paid is proper and sufficient?
5. To what relief?
h) The plaintiff, in support of his case, has examined PW1 and got marked Exs. A1 to A5. On behalf of defendants, DWs 1 to 5 were examined and Exs.B1 to B7 were marked. The trial Court on appreciation of oral and documentary evidence on record, has dismissed the suit. Aggrieved by the same, the plaintiff has filed the present appeal.
4. It is pertinent to note that initially the suit was filed by the sole plaintiff against defendant Nos.1 and 2 and thereafter defendant Nos.3 to 6 were impleaded. Defendant Nos.1, 2 and 6 are the real 6 MGP, J AS_299_2004 brothers and whereas defendant Nos.3 and 4 are the purchasers of Ac.2.00 guntas land in Sy.No.164 from the defendant No.2 during the pendency of the suit. Defendant No.5 is the daughter of defendant No.1 and sister of plaintiff. Furthermore, during the pendency of the appeal before this Court, defendant No.2 passed away and thereby his legal heirs i.e., defendant Nos.7 to 10 were brought on record.
5. Heard Sri T. Muralidhar Rao, learned counsel for the appellant, Sri B. Dananjaya, learned counsel for the respondent No. 1 and Sri V. Venkat Mayur, learned counsel for respondent Nos.2 and 7 to 10. Perused the material on record.
6. The defendant Nos.7 to 10 i.e., legal heirs of defendant No.2 filed written arguments contending that appellant has not raised any valid ground to set aside the well - reasoned judgment; and that the trial Court has rightly dismissed the suit and prayed to dismiss the appeal.
7. There is no dispute with regard to the relationship between the parties. There is also no dispute that the suit schedule lands are ancestral properties of plaintiff and defendants except defendant Nos.3 and 4, who are purchasers of part of suit schedule lands 7 MGP, J AS_299_2004 under Ex.A5 from defendant No.2 during lis pendens. The defendant Nos.1, 2 and 6 are the real brothers and they are the sons of late A. Venkat Reddy. DW1, who is defendant No.1 in the suit, testified before the Court that his younger brother, Malla Reddy (Defendant No.6) relinquished his share of properties in his favour and defendant No.2 by receiving Rs.1,200/- each. However, he volunteers that Malla Reddy did not collect money from them and it was only for record sake. D.W.1 again deposed that Mallareddy received Rs.1,200/- each from him and defendant No.2 in the year 1978 and executed documents. However, Ex.B1 is the affidavit given by defendant No.6, who is the own brother of defendant Nos.1 and 2, in the year 1996 relinquishing all his rights in respect of the properties of his natural father, late Attelli Venkat Reddy. Thus, it is clear that defendant No.6, who is one of the coparcener in the suit schedule properties, has relinquished his rights over the suit schedule properties.
8. Now, it is to be seen as to whether the suit schedule properties were in joint possession of the plaintiff and defendant Nos. 1 and 2 as on the date of filing of the suit. The sole plaintiff, who was examined as PW1, has reiterated the averments of the plaint in his chief-examination. In the cross-examination, P.W.1 admitted that 8 MGP, J AS_299_2004 the total extent of Ac.10.30 guntas is in possession of defendant No.2. However, witness adds that since 1992 defendant No.2 is in possession of the suit schedule properties. Even the father of the plaintiff was examined as D.W.1, admitted that since 1992-93 defendant No.2 was in possession and cultivating all the plaint schedule lands. The sole plaintiff got issued legal notice on 07.04.1994 under Ex.A1 and got filed the suit in the year 1995. There is no explanation on the part of the plaintiff, as to why he kept quiet for a period of two years, when defendant No.2 was in possession of the suit schedule properties. P.W.1 further admitted that his father i.e., defendant No.1 is residing in Pedda Mangalaram Village since 1992. D.W.1 deposed that till 1992 he resided in Pedda Mangalaram Village. P.W.1 admitted that he never resided in Jalarguda Village. When suit schedule properties are in possession of defendant No.2 and when father of sole plaintiff was residing at Pedda Mangalaram since 1992, certainly, it cannot be said that the suit schedule properties situated at Jalarguda Hamlet of Allade Village, Chevella Mandal, Ranga Reddy District are in joint possession of plaintiff and defendants, more particularly, when plaintiff himself never resided in the Jalarguda village, where the suit schedule properties are situated.
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9. The other crucial aspect that requires to be considered is whether an oral partition took place between the parties prior to filing of the suit as contended by the defendant No.2. P.W.1 in his cross-examination admitted that in the year 1990 his father told him that he and defendant No.2 partitioned the property. He further admitted that he did not tell him about the year in which properties were partitioned. P.W.1 deposed that he had no idea about the lands, which fell to the share of his father in the partition, as his father did not give him the details. P.W.1 admitted that his father was doing agriculture in Pedda Mangalaram Village by cultivating their Ac.3.00 guntas of land since 1990.
10. Further, P.W.1 testified that in the year 1990, his father was in possession of Ac.5.00 guntas of land, which fell to the share of his father. However, P.W.1 failed to give the details of the survey numbers of the said land Ac.5.00 guntas. P.W.1 pleaded ignorance about the land, which was being cultivated by his father in the year 1990. It is pertinent to note that lands in Sy.No.184 are part of the suit schedule properties claimed in the suit and obviously P.W.1 should have knowledge about the extent of the land in Sy. No.184 and its nature. However, P.W.1 pleaded ignorance about the extent of land in Sy.No.184 and the houses of 13 persons in Sy.No.184. 10
MGP, J AS_299_2004 P.W.1 denied a suggestion that his father sold the said house sites to those 13 persons prior to 1987. But it is the evidence of D.W.1 that there are about 20 houses in Sy. No.184 and that no land is left out in Sy.No.184 for cultivation. D.W.1 further deposed that his father and defendant No.2 sold that land in Suy.No.184. On the other hand, the younger brother of defendant No.1, by name, A. Madhava Reddy i.e., defendant No.2, was examined as D.W.2, who deposed that defendant No.1 sold away his share of land Sy.No.184 for house sites to eight persons i.e., Tirumala Ananthaiah, Tirumala Rajaiah, Tirumala Mallaiah, A. Chandra Reddy, A. Srinivasa Reddy, A. Ananthareddy, T. Yadaiah and T. Tirumalaiah. D.W.2 further deposed that defendant No.1 sold about Ac.0.02 guntas of land in Sy.No.188 to Cheguri Ramireddy and Pamena Shivaiah. It is observed that defendant No.2 is able to disclose the names of the purchasers, who have purchased land from defendant No.1 and on the other hand, surprisingly, the vendor i.e., defendant No.1, who sold the lands in Sy.No.184 to purchasers is unable to disclose the names of the persons, who have purchased the land from him.
11. Though P.W.1 admitted that his father was doing agriculture in Pedda Mangalaram Village by cultivating their Ac.3.00 guntas of land since 1990, surprisingly, a suggestion was given to D.W.2 to the 11 MGP, J AS_299_2004 effect that the schedule lands were jointly cultivated by himself and defendant No.1 till 1992-93. When D.W.1 i.e., father of the plaintiff was cultivating the lands at Pedda Mangalaram since 1990, the question of D.W.1 and D.W.2 cultivating the schedule lands jointly till 1992-93 does not arise. Thus, the plaintiff is blowing hot and cold together i.e., his father/D.W.1 alone was cultivating the lands at Pedda Mangalaram since 1990 and simultaneously D.W.1 and D.W.2 were cultivating the schedule lands jointly situated at Jalarguda till 1992-93.
12. One of the contentions raised by the learned counsel for the plaintiff is that the trial Court erred in doubting the gift deed under Ex.B2 in favour of mother of plaintiff on the basis of assumptions and presumptions without any iota of evidence. The plaintiff contended that his father i.e., D.W.1 was cultivating lands at Pedda Managalram and the said lands were given by brother of his mother. D.W.1 also deposed that the brother of his wife gifted the said lands to him under a registered gift deed dated 30.08.1996 under Ex.B2. However, it is the contention of the defendant No.2 that about 16 years back, the defendant No.1 offered all his lands and the house property for sale and out of such sale proceeds defendant No. 1 purchased the lands at Pedda Mangalaram. Though the lands 12 MGP, J AS_299_2004 covered under Ex.B2 were being cultivated by defendant No.1 is not part of the suit schedule property, defendant No.1 got marked the said document to establish that he has not purchased the said lands out of the sale proceeds received from defendant No.2 after sale of part of suit schedule property, which fell to his share. It is pertinent to note that the suit was filed in the year 1995 and only after filing of the suit i.e., on 30.08.1996 Ex.B2 was executed. When defendant No.1 was cultivating the lands at Pedda Mangalaram since 1990, what was the necessity for the brother-in-law of defendant No.1 to execute Ex.B2 only after filing of the suit is not explained either by the plaintiff or by his father i.e., defendant No.1. In such circumstances, an inference can be drawn against plaintiff and his father i.e., defendant No.1 that in order to refute the contention of the defendant No.2 that defendant No.1 has purchased the lands at Pedda Mangalaaram out of the sale proceeds received from defendant No.2 after sale of part of suit schedule property, which fell to his share, Ex.B.2 was pressed into service.
13. In support of the above said contention, defendant No.2 got examined one Srinivas Reddy as D.W.5, who is a resident of Jalagudem Village. D.W.5 deposed that plaintiff, defendant Nos.1 and 2 are his agnates. He further deposed that defendant Nos.1 and 13 MGP, J AS_299_2004 2 have partitioned the joint family properties and about 17 years back he purchased a house site measuring 600 square yards in Sy.No.184 of Jalagudem Village under registered sale deed under Ex.X1 dated 24.02.1986 from the defendant No.1 for Rs.4,000/-. He further testified that the land purchased by him from defendant No.1 was fell to the share of defendant No.1 and that the remaining plots in Sy.No.184 were sold away by defendant No.1 to other third parties. D.W.5 further deposed that Ex.X1 was executed through the father of defendant No.1, wherein defendant No.1 signed as one of the attestors. He further deposed that defendant No.1 sold out his share of land in favour of defendant No.2. D.W.5 denied the suggestion that he has not paid any consideration covered by Ex.X1 transaction to defendant No.1 and that in order to avoid future litigation or any problem from defendant No.1, D.W.5 has obtained the signature of defendant No.1 on Ex.X1. If at all there was no consideration in respect of Ex.X1 from D.W.5 to the father of defendant No.1, there is no explanation from plaintiff and defendant No.1 as to what prompted defendant No.1 to sign as attestor to Ex.X1. No reason is assigned by the plaintiff as to why there was no consideration in the sale transaction.
14. It is contended by the learned counsel for the plaintiff that the 14 MGP, J AS_299_2004 trial Court has wrongly come to the conclusion that the partition took place between defendant Nos.1 and 2 even when father of defendant Nos.1 and 2 executed Ex.X1 in favour of D.W.5, which is much subsequent to the date of partition and admittedly when the property is ancestral property. It is further contended that the trial Court placed its reliance on the evidence of D.W.5 though the sale deed, Ex.X1, dated 24.02.1986, which is executed by father of defendant Nos.1 and 2, is much after the alleged partition put forth by defendant No.2. A perusal of Ex.X1, the vendor i.e., father of defendant Nos.1 and 2 and grandfather of plaintiff, by name, A. Venkat Reddy has clearly stated that the sale consideration was already received from the purchaser and that the possession of the said property was also delivered to the purchaser long back. Thus, it is clear that the said property under Ex.X1 was sold to DW5 previously and only in proof of said sale transaction Ex.X1 was executed for the benefit of purchaser. It is pertinent to note that the property covered under Ex.X1 was standing in the name of Sri A. Venkat Reddy. As the partition between the parties was done orally and it was not materialized on paper, the said property was still subsisting in the name of Sri A. Venkat Reddy. Though, the property under Ex.X1 fell to the share of defendant No.1, he could not execute Ex.X1 in favour of D.W.5 since the property was standing in the 15 MGP, J AS_299_2004 name of Sri A. Venkat Reddy. Therefore, the contention of learned counsel for the plaintiff holds no water.
15. P.W.1 and D.W.1 admitted that Pratapreddy, Anjireddy, Galreddy, Sathaiah and Sayanna were elders of the village. D.W.3 is one of such village elders and he deposed that about 25 years back defendant Nos.1 and 2 have orally partitioned their joint family properties and since then they are residing separately and enjoying their properties separately. He further deposed that defendant No.1 sold out the house sites in Sy.No.184 to some of their villagers and rest of his agricultural lands, which fell to share was sold to the defendant No.2 for Rs.32,000/- about 16 years back and that the said sale transaction took place in his presence. D.W.3 further deposed that defendant No.2 paid Rs.18,600/- as part of the sale consideration to defendant No.1 and for the balance amount, defendant No.2 executed a document under Ex.B4 dated 04.02.1987. Defendant No.1 executed a document acknowledging the sale of the property and receipt of Rs.18,600/- and defendant No.2 executed a document agreeing to pay the balance money by Dasara or Deepavali. D.W.3 further deposed that out of that balance amount, defendant No.2 agreed to discharge the loan amount of defendant No.1 to the Cooperative Society and for the balance 16 MGP, J AS_299_2004 amount of Rs.10,000/- a document was executed. D.W.3 also deposed that one Pratap Reddy of their village scribed the documents executed by defendant Nos.1 and 2 under a tree near Venkateswara Swamy temple in Chevella and the said documents were attested by himself, Anjireddy, Sayanna and Galreddy. It is his further evidence that four or five days after Deepavali festival, defendant No.2 paid Rs.10,000/- to defendant No.1. He deposed that defendant No.1 sold his lands to defendant No.2 and others for purchasing the lands in Pedda Mangalaram village and cultivating the lands therein. One Pratap Reddy, who was alleged to be the scribe of Ex.B4 and other documents executed between defendant Nos.1 and 2, was examined as DW4 and he deposed in similar lines with that of D.W.3. He deposed that defendant No.1told him that by selling his share of lands in Jalagudem to defendant No.2, he would purchase the lands in Pedda Mangalaram Village. In the cross examination he deposed that he has seen the documents executed by Defendant No.1 regarding the house plots. D.W.5 further deposed that defendant Nos.1 and 2 have partitioned their joint family properties into two equal shares and that they were having Ac.0.30 guntas each in Sy.No.184. Thus, it is crystal clear from the evidence of DWs 3 and 4, who are the independent witnesses that oral partition has taken place during the life time of A. Venkat Reedy i.e., father of defendant 17 MGP, J AS_299_2004 Nos.1 and 2, and that the parties are in exclusive possession of parts of the suit schedule properties, which fell to their respective shares.
16. A suggestion was given to D.W.3 that defendant No.2 was cultivating the schedule lands on behalf of the joint family. It is quite astonishing to note that when defendant No.1 was cultivating the lands belonging to him at Pedda Mangalaram for his family, there was no explanation on behalf of the plaintiff as to what was the necessity for defendant No.2 to cultivate the suit schedule lands for the joint family ignoring the welfare of his own family. If at all the suit schedule properties are in joint possession of the plaintiff and defendants, then certainly the suit schedule properties should have been cultivated by defendant Nos.1 and 2 together.
17. It is observed that the total extent of suit schedule property is Ac.10.30 guntas in various survey numbers. Sri A. Venkat Reddy has three sons i.e., defendant Nos.1, 2 and 6 and out of them defendant No.6 has relinquished his rights over the suit schedule properties. D.W.1 in his evidence deposed that he was in possession of land to an extent of 4 or 5 acres altogether in each survey number and that for about 20 years he used to cultivate the said lands on his own prior to 1992. It is not the case of D.W.1 that he, along with his brother i.e., DW2, was cultivating the suit schedule properties 18 MGP, J AS_299_2004 jointly since the suit schedule properties are alleged to be joint family properties as on the date of filing of the suit. The trial Court in the impugned judgment has rightly observed that if really there was no earlier partition between defendant Nos.1 and 2, the question of D.W.1 cultivating the suit schedule properties separately for a period of 20 years prior to 1992 does not arise. Thus, an inference can be drawn from the above piece of evidence that an oral partition in respect of suit schedule properties took place prior to filing of the suit and out of such oral partition, the properties, which were alleged to have been cultivated by D.W.1 prior to 1992, fell to the share of D.W.1.
18. One of the issues framed by the trial Court was whether the court fee as paid by the plaintiff was sufficient. The plaintiff has paid Rs.200/- as fixed Court fee, as if, defendant Nos.1 and 2, plaintiff, were in joint possession and enjoyment of the suit schedule property as on the date of filing of the suit. However, as per the evidence let in by PW1 and DW1, defendant Nos.1 and 2 and plaintiff never in joint possession of the suit schedule property as on the date of filing of the suit. Ex.A4 is the certified copy of pahani for the year 1991-92, which does not disclose the names of either plaintiff or his father defendant No.1 and in fact, the name of defendant No.2 19 MGP, J AS_299_2004 reflects as pattadar and possessor in respect of suit schedule survey numbers. Hence, the plaintiff is not entitled to pay the fixed court of Rs.200/-, as the parties to the suit were not in joint possession of the suit schedule properties as on the date of filing of the suit.
19. Admittedly, the lands in Sy. No.184 is also part of the suit schedule "A" property. As per the evidence of D.W.5, after sale of 600 square yards by defendant No.1 in favour of D.W.5, the remaining plots in Sy.No.184 were sold away by defendant No.1 in favour of third parties. In such circumstances, the plaintiff cannot seek partition of the suit schedule property, more particularly, when the part of suit schedule property has already been sold away by defendant No.1, who is none other than the father of plaintiff.
20. The plaintiff is seeking the relief of partition of the suit schedule property, which is ancestral property deriving the title from Late Attelli Venkat Reddy, who is father of defendant Nos.1 and 2 and there is no information as to when Attelli Venkat Reddy passed away.
21. The other ground raised by the learned counsel for the plaintiff is that the trial Court wrongly dismissed the suit on the ground that the plaintiff has not pleaded in his plaint or deposed that the suit 20 MGP, J AS_299_2004 properties were joint family properties of plaintiff, defendant Nos.1, 2 and 6 and there was no partition prior to the partition of the suit; the suit itself is filed for partition of the joint family properties even though properties are admittedly ancestral and the presumption is they are in joint possession unless partition is established. A plain reading of the plaint clearly discloses that the plaintiff never pleaded that the suit property has been in joint possession and enjoyment of all the coparceners. But as per the evidence let in by defendant No.2, defendant No.6, who is one of the coparceners, has relinquished his rights over the suit schedule properties in the year 1978 itself. Even as per the evidence of PW1, defendant No.1, who is the father of plaintiff and also one of the coparceners, has been residing at Pedda Mangalaram since 1992 i.e., three years prior to filing of the suit. Thus, there is no truth in the pleading of the plaintiff that the suit property is in joint possession of all the coparceners.
22. One of the grounds raised by the learned counsel for the plaintiff is that the trial Court erred in coming to a conclusion about the partition of the property and based its reliance on evidence of PW1 that his father told him about the partition, which pertains to partition between father's father of the plaintiff and his brothers. 21
MGP, J AS_299_2004 But as seen from the record, PW1 in his cross-examination deposed as follows:
"In the year 1990 my father told me that he and the D-2 partitioned the property".
23. From a reading of the above sentence, it cannot be construed in any manner that the partition which defendant No.1 spoke to PW1 pertains to father's father of the plaintiff and his brothers.
24. Learned counsel for the plaintiff contended that the trial court ought to have referred to Ex.B1 before drawing any conclusion with respect to sale of properties by defendant No.6 to defendant Nos.1 and 2, though correctly held that defendant No.6 sold his share in joint properties to defendant Nos.1 and 2. It was further contended that the trial Court has misinterpreted the contents of Ex.B1 with respect to relinquishment of rights of defendant No.6 in the suit property in favour of defendant Nos.1 and 2 and erred in holding that the partition took place between the parties in the year 1978 because the share of defendant No.6 was purchased by defendant Nos.1 and 2 from out of their independent income and that defendant Nos.1 and 2 never constituted joint family by that time. It was further contended that the trial Court wrongly concluded that the question of getting separate income by the defendant Nos.1 and 22 MGP, J AS_299_2004 2 arise only when they were residing separately and attending to their avocation separately. It is pertinent to note that Ex.B1 was alleged to have been executed in the year 1996. But surprisingly, DW1, who is none other than father of the plaintiff and sailing with the plaintiff, deposed in his cross examination that his younger brother Malla Reddy (defendant No.6) received Rs.1200/- each from him and defendant No.2 in the year 1978 and executed the documents. It is not explained either by PW1 or DW1 as to what prompted defendant No.6 to execute Ex.B1 in the year 1996, when defendant No.6 has received Rs.1200/- each from defendant Nos.1 and 2 in the year 1978 itself. It appears that defendant No.6 is intending to extend his helping hand to plaintiff and defendant No.1 in claiming the relief of partition. It also appears that oral partition might have taken place between the parties and that is the reason why defendant No.6 has relinquished his rights over the suit schedule properties in the year 1978 itself. It is not explained either by PW1 or DW1 as to how DW1 could pay the amount to defendant No.6 out of his own earnings, more particularly, when defendant Nos.1 and 2 are alleged to be in joint possession of the suit schedule properties. It is not the case of the plaintiff or defendant No.1 that defendant No.1 is having other avocation for livelihood. As rightly contended by the learned trial Court, if at all the suit schedule 23 MGP, J AS_299_2004 properties were in joint possession of defendant Nos.1 and 2 and being cultivated jointly, the payment of Rs.2400/- (Rs.1200/- + Rs.1200/-) shall be from out of the joint family funds but not from the separate income of defendant Nos.1 and 2. It is pertinent to note that when defendant Nos.1 and 2 are alleged to be in joint possession and enjoyment of the suit schedule ancestral properties, the question of defendant No.1 paying Rs.1200/- to defendant No.6 out of his own earnings does not arise. It is not out of place to mention here that even as per the evidence of PW1 and DW1, defendant No.1 has been residing separately at Pedda Mangalaaram by the date of the filing of the suit. Thus, it is very much clear that by 1978 itself i.e., by the date on which defendant No.6 has relinquished his rights over the suit schedule properties, there was oral partition between the parties and thereby defendant Nos.1 and 2 could pay Rs.1200/- each to defendant No.6 out of their own earnings respectively.
25. Learned counsel for the plaintiff has contended that the trial Court entirely shifted the burden of disproving the partition on the plaintiff instead of proving the same by defendant No.2 that there is a partition of properties by metes and bounds. However, it is pertinent to note that the plaintiff himself, who was examined as 24 MGP, J AS_299_2004 PW1 has admitted in his cross-examination that his father i.e., defendant No.1 told him that partition took place between defendant No.1 and defendant No.2. In such circumstances, it is irrelevant as to whether the burden of proving earlier partition is on the plaintiff or the defendant. Moreover, the defendant No.2 got examined DWs 3 to 5, who have categorically deposed about the oral partition that took place between the parties.
26. Even as per the certified copies of pahanies for the years from 1990-91 to 1991-92 under Exs.B5 to B7, neither the name of plaintiff nor the name of his father was reflecting in the possessor column and in fact, the name of defendant No.2 is being reflected in the possessor column.
27. One of the contentions raised by the learned counsel for the plaintiff is that the trial Court has placed its reliance on the oral evidence of DWs 3 and 4 just because the plaintiff has no enmity against DWs 3 and 4. Even as per the version of DW1 and PW1, it is an admitted fact that DWs 3 and 4 are the elders of Jalarguda Village, where the suit schedule properties are situated. In support of his contention, the plaintiff could not examine any independent witness. On the other hand, defendant No.2, in support of his contentions, got examined 25 MGP, J AS_299_2004 DWs 3 and 4, who categorically deposed about the earlier partition taken place between defendant Nos. 1 and 2. It is not the evidence of PW1 or DW1 that DWs 3 and 4 are the interested witnesses. In such circumstances, the evidence of DWs 3 and 4 can certainly be considered, more particularly, when they are the elders of the village, wherein suit schedule properties are situated.
28. Though several other grounds were raised by the plaintiff pointing out lacunae in the evidence adduced on behalf of the defendant No.2, it is settled law that plaintiff can succeed only on his own strength but cannot depend on the weakness of the defendants. It is not obligatory on the part of the defendants to plead and prove the possible defects in the plaintiff. Thus, if the plaintiff fails to establish his own case, even if the defendant fails to establish his case, plaintiff must be non-suited. Moreover, the evidence adduced on behalf of plaintiff i.e., his own oral evidence in the form of PW1 and documentary evidence in the form of Ex.A1, Ex.A4 are against the contentions of plaintiff and defendant No.1. No documentary evidence is adduced on behalf of the plaintiff to substantiate any of his contentions to claim the relief of partition. PW1 i.e., the plaintiff 26 MGP, J AS_299_2004 himself admitted that defendant No.2 was in possession of the suit schedule properties since 1992 and that his father was cultivating lands at Pedda Mangalaaram and that plaintiff is not residing in Jalarguda, where the suit schedule properties are located. When the plaintiff and his father i.e., defendant No.1 are not even residing in the village, where the suit schedule properties are located, the plaintiff is precluded from contending that they are in joint possession and enjoyment of the suit schedule properties. When the plaintiff and defendants were not in joint possession and enjoyment of the suit schedule properties as on the date of filing of the suit, the plaintiff is not entitled to pay fixed court fee of Rs.200/- as per Section 34 (2) of the Court Fee and Suit Valuation Act. Thus, the suit is liable to be dismissed even on this ground alone. On the other hand, the defendant No.2 got examined himself and DWs 3 to 5 apart from documentary evidence in the form of Exs.B1 to B7 in support of his contentions.
29. The plaintiff has initiated legal proceedings in this by issuing legal notice under Ex.A1 to the defendant Nos.1 and 2 seeking partition of the suit schedule properties. A scrutiny of Ex.A1, legal notice, discloses that the plaintiff sought for 27 MGP, J AS_299_2004 partition of the ancestral joint family properties of the plaintiff and defendant No.1. It was also mentioned in Ex.A1 that defendant No.1 is intending to sell away the joint family properties of defendant No.1 and plaintiff to defendant No.2. From the above said averments, it is clear that the suit schedule properties were partitioned among the parties long ago and that defendant No.1 was intending to sell part of the suit schedule properties, which fell to the share of plaintiff and defendant No.1, to defendant No.2, as evident from the plaintiff's own admission and Ex.A1 legal notice. If at all there was no partition of the suit schedule properties among the parties to the suit, the plaintiff ought not to have mentioned in Ex.A1 that suit schedule properties are ancestral joint family properties of the plaintiff and defendant No.1 alone. The only allegation against defendant No.2 in Ex.A1 was that defendant No.2 was intending to purchase the properties belonging to plaintiff and defendant No.1, as such called upon defendant No.2 not to purchase the said properties from defendant No.1. It was not at all mentioned in Ex.A1 that the plaintiff is seeking partition of suit schedule properties among himself and defendant Nos.1 and 2. Since partition of the suit schedule properties among the parties already took place, the plaintiff 28 MGP, J AS_299_2004 was seeking partition of the properties, which fell to the share of defendant No.1 and plaintiff.
30. Another lacuna in Ex.A1 is that plaintiff has not whispered anything about the lands in Sy.No.184 in the legal notice. However, the plaintiff has introduced the lands in Sy.No.184 in the plaint, without mentioning the said lands in Ex.A1. It is observed that Ex.A1 notice was issued in the year 1994 and the suit was filed in the year 1995. Though defendant No.1, who is father of the plaintiff, was very much available, did not choose to file his written statement until 1999. Even by the date of issuing legal notice, defendant No.1 was intending to sell the properties, which fell to his share, to defendant No.2. As per the evidence of PW1, defendant No.1 has informed him that in the year 1990 partition of the suit schedule properties took place between defendant No.1 and defendant No.2. After five years of issuing the legal notice, defendant No.1 came up with his written statement and took 'U' turn stating that no partition of the suit schedule properties has taken place. Perhaps, the defendant No.1 intended to assist his own son i.e., the plaintiff, to seek partition of the suit schedule properties, which were already partitioned among defendant 29 MGP, J AS_299_2004 Nos.1 and 2, which was elicited from the cross-examination of PW1.
31. Furthermore, as per the own evidence of D.W.1, no land is left out for cultivation in Sy.No.184 of Jalarguda Village, which is part and parcel of the suit schedule property in the suit. When some part of suit schedule property is already alienated, more particularly, when there is no land left in the suit survey No.184, the plaintiff ought not to have sought for the relief of partition of the said property, which was alienated in favour of third parties. Thus, the relief of partial partition of suit schedule properties other than the land in Sy. No.184, is not maintainable.
32. A perusal of the impugned judgment passed by the trial Court, it is evident that the trial Court has considered all the aspects meticulously and arrived to an appropriate conclusion of dismissing the suit. Therefore, interference of this Court with the findings of the learned Senior Civil Judge, Vikarabad is unwarranted. Hence, the appeal is devoid of merits and liable to be dismissed.
33. In the result, this appeal is dismissed confirming the 30 MGP, J AS_299_2004 judgment and decree dated 22.10.2003 in O.S.No.12 of 1995, on the file of learned Senior Civil Judge, Vikarabad. There shall be no costs.
As a sequel, pending miscellaneous applications, if any, shall stand closed.
_______________________________ JUSTICE M.G. PRIYADARSINI Date: 01.09.2023 AS