P.Narayanamma 3 Others vs P.Kumar 6 Others
2021 Latest Caselaw 4432 AP

             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

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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

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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

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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

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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

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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

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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

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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-

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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

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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

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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

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