Andhra Pradesh High Court - Amravati
Karthana Jayalakshmamma vs Karthana Venkateswarlu Died on 5 November, 2024
1
APHC010358112002
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3369]
(Special Original Jurisdiction)
TUESDAY,, THE FIFTH DAY OF NOVEMBER
TWO THOUSAND AND TWENTY
TWENTY-FOUR
PRESENT
THE HONOURABLE SRI JUSTICE T
T. MALLIKARJUNA RAO
SECOND APPEAL NO: 817/2002
Between:
Karthana Jayalakshmamma and Others ...APPELLANT(S)
AND
Karthana Venkateswarlu Died and Others ...RESPONDENT(S)
Counsel for the Appellant(S):
1. M RAVINDRA
Counsel for the Respondent(S):
1. P VENKATA RAO
2. VENKATESWARLU SANISETTY
The Court made the following JUDGMENT:
1. This Second Appeal was filed by the Appellants/L.Rs
L.Rs of the Defendant
under Section 100 of the Code of Civil Procedure, 1908 (for short, 'C.P.C.')
against the Judgment and decree dated 11.03.2002 passed in A.S.No.17
A.S.No. of
1998 on the file of I Additional District Judge, Nellore (for short, 'the 1st
Appellate Court') reversing the Judgment and decree, dated 07.11.1997
passed in O.S.No.1 of 1992 on the file of Senior Civil Judge, Kavali (for short
'the trial Court').
2. Respondents 1 and 2 are the Plaintiffs who filed the suit in O.S.No.1 of
1992 for partitioning plaint schedule property into three equal shares and for
separate possession of two such shares and future profits.
3. It is prudent to refer to the parties as they are originally presented in the
suit O.S. No. 1 of 1992 to minimize any potential confusion.
4. The factual matrix essential for adjudicating the contentious issues
between the parties can be outlined as follows:
Plaintiffs 1 and 2 and Defendant are the undivided sons of
Karthana Ankaiah of Kaligiri Village. Their father passed away
intestate in 1965, followed by their mother's death in 1984. The
1st Plaintiff served as a Conductor with APSRTC and retired on
01.07.1990. The 2nd Plaintiff is currently employed as an
Elementary School Teacher in Kandriga, Kaligiri Mandal. The
joint family, comprising the Plaintiffs and the Defendant, owns the
property detailed in the plaint schedule. Due to their employment,
Plaintiffs 1 and 2 reside elsewhere, while Defendant continues to
live in the village, managing the family properties in Kaligiri since
their father's passing. Following their mother's death, Plaintiffs 1
and 2 have repeatedly requested the Defendant for partition and
separate possession of the schedule properties. However, the
Defendant has consistently deferred these requests under
various pretexts. On 18.01.1991, the Plaintiffs issued a notice
through their advocate demanding partition, yet the Defendant
failed to respond, despite acknowledging receipt of the notice.
The Plaintiffs were constrained to file the suit.
5. In the written statement, Defendant denies the plaint averments and
contends that Item No.4 of the plaint schedule property was purchased by
Defendant from one Dakarapu Krishna Rao about ten years ago. Items No.5
and 6 shown in the plaint schedule have been occupied by Defendant during
1972, and Item No.7 belongs to Defendant's wife by the patta issued by the
Government in A.D. No.779/84. Item No.8 of the plaint schedule property
belongs to one Maddineni Thirupalu, who got it under patta in the year 1976
and from whom Defendant purchased the same for Rs.3,600/- under an
agreement of sale dated 11.03.1979. Thus, the joint family had nothing to do
with Items No.4 to 8 of the plaint schedule. The Plaintiffs, therefore, hold no
rights or claims to the property outlined in the plaint schedule, and they cannot
seek a partition of the suit schedule properties.
6. Based on the above pleadings in O.S. No.1 of 1992, the trial Court
framed the following issues:
1) Whether the Plaintiffs have any right over the plaint schedule properties?
2) Whether the Plaintiffs 1 and 2 and Defendant are undivided brothers as
alleged in the plaint?
3) Whether items 5 and 6 shown in the plaint separate have been occupied
by the Defendant?
4) Whether Item 8 of the plaint schedule properties are owned by the
Maddineni Tirupalu?
5) To what relief?
7. Subsequently, the trial Court struck out Issues Nos.1 and 4, and they
are re-casted as per the provisions under Order 14, Rule 5 of C.P.C. The
issues 1 and 4 are re-caste as follows:
1) Whether the Plaintiffs are entitled for partition of suit schedule
property and for separate possession as prayed?
4) Whether the plaintiffs are entitled to profits as prayed?
8. During the trial, P.Ws.1 to 5 were examined on behalf of the Plaintiffs
and marked Exs.A.1 to A.7 documents. Conversely, on behalf of the
Defendant, D.Ws.1 to 5 were examined and marked Exs.B.1 to B.5
documents.
9. After the trial concluded and both sides presented their arguments, the
trial Court passed a preliminary decree partly in favour of the Plaintiffs in its
Judgment dated 07.11.1997. Dissatisfied with the Judgment and decree in
O.S. No.1 of 1992, the Defendant subsequently filed an appeal in A.S. No. 17
of 1998 before the 1st Appellate Court.
10. The 1st Appellate Court, being the final fact-finding Court, on scrutiny of
oral and documentary evidence adduced on behalf of both sides, had partly
allowed the Appeal without costs and thereby granted the relief of partition
and separate possession in respect of the items No.4 and 8 of the plaint
schedule properties in favour of the plaintiffs by its Judgment, dated
11.03.2002. Aggrieved by the 1st Appellate Court's Judgment passed in A.S.
No.17 of 1998, the Appellants/L.Rs. of the Defendant preferred the present
Second Appeal.
11. A perusal of the record shows that after disposal of the Appeal Suit, the
Defendant died. His legal representatives were brought on record, and the
L.R.s of the Defendant are arrayed as Appellants. During the pendency of the
Second Appeal, the 1st Respondent/Plaintiff died. Respondents 3 and 4 were
brought on record as L.R.s of the deceased/1st Respondent as per order
dated 03.07.2013 in SAMP.No.45 of 2013.
12. I heard Sri M. Ravindra, learned counsel representing the
Appellants/L.R.s of the Defendant, and Sri P. Venkata Rao, learned counsel
for the Respondents/Plaintiffs.
13. Based on the Appellants' contentions, the following substantial
questions of law are involved in this Second Appeal:
1. Whether the Lower Appellate Court has not erred in
reversing the Judgment of the trial Court relating to Items 4
and 8 of the plaint schedule by wrongly placing the burden
of proof upon the appellants.
2. Whether the Lower Appellate Court has not erred in its
failure to take into consideration that under Hindu Law,
there is a presumption concerning jointness of the family,
but there is no such presumption concerning properties
held by every member of the family are the joint family
properties and he who asserts that any of the properties
are joint family properties, it is for him to establish about the
character of the said properties being joint family
properties.
3. Whether the Lower Appellate Court has not erred in not
considering the catena of judgments rendered by this
Hon'ble Court and Apex Court about the burden of proof
concerning the joint family property and whether the Lower
Appellate Court has also not erred in holding that items 4
and 8 are the joint family properties in the absence of any
evidence placed by the respondents that there existed
adequate joint family nucleus.
14. With the assistance of the learned counsel for the respective parties, I
have gone through the Judgments, the pleadings and the evidence on record.
15. The record reveals that the trial Court passed a preliminary decree for
the partition of items No.1 to 3 of the plaint schedule properties, affirming their
status as joint family properties. However, the trial Court dismissed the
Plaintiffs' claims regarding items No.5 and 6 of the schedule properties, citing
a lack of evidence to support their assertion that these properties belonged to
the joint family. Additionally, the trial Court dismissed the suit against the
Plaintiffs concerning item No.7 of the schedule property, observing that the
government issued patta to the Defendant's wife for this property. Lastly, the
trial Court also dismissed the claims related to items 4 and 8 of the schedule
properties, providing specific reasons.
16. Aggrieved by the Judgment rendered by the trial Court, the Plaintiffs,
now Appellants, filed an appeal in A.S. No.17 of 1998. The 1 st Appellate Court
found the absence of any appeal or cross-appeal concerning the trial Court's
findings regarding items No.1 to 3 as joint family properties. Consequently, the
Appeal pertained solely to items No.4 to 8 of the plaint schedule properties.
While allowing the Appeal partly, the 1st Appellate Court granted relief in the
form of partition and separate possession for items No.4 and 8 of the schedule
properties, thereby affirming the Plaintiffs' claims regarding these specific
properties and dismissed the Appeal in respect of items No.5 to 7 of the
schedule properties.
17. Sri M. Ravindra, learned counsel for the Appellants, argues that the 1 st
Appellate Court should have concluded that the Respondents failed to
adequately demonstrate the joint family character of Items No.4 and 8,
thereby upholding the Judgment and decree of the trial Court. Furthermore,
learned counsel contends that the 1 st Appellate Court erred in asserting that,
in the absence of a sufficient joint family nucleus, the properties acquired
through independent efforts could not be classified as joint family properties.
Additionally, he maintains that the 1st Appellate Court improperly set aside the
trial Court's Judgment regarding Items No.4 and 8 on the grounds that the trial
court had not thoroughly considered the evidence presented.
18. Per contra, learned Counsel for the Respondents/Plaintiffs contend that
the 1st Appellate Court correctly appreciated the facts of the case and reached
a correct conclusion. The reasons given by the 1st Appellate Court do not
require any modifications.
19. To evaluate the competing submissions from both parties, I have
meticulously examined the judgments passed by the trial Court and the 1 st
Appellate Court.
20. The record reflects that the familial relationship asserted in the suit is
undisputed. The Plaintiffs and Defendant are sons of Karthana Ankaiah, who
passed away intestate in 1965, while the Plaintiffs' mother died in 1984. The
1st Plaintiff served as a conductor with the APSRTC, retired on 01.07.1990,
and the 2nd Plaintiff worked as an elementary school teacher. Notably, the
written statement acknowledges that items No.1 to 3 of the plaint schedule
properties are indeed joint family properties. The trial Court accepted the
Defendant's defence concerning items No.4 to 8 of the schedule properties;
however, the 1st Appellate Court reversed the trial Court's Judgment only
concerning items No.4 and 8 of the schedule properties while affirming the
trial Court's findings regarding items No.5, 6, and 7 of the schedule properties.
Therefore, this Court is to assess the validity of the 1st Appellate Court's
Judgment concerning items No.4 and 8 of the schedule properties. Item No.4
of the schedule property pertains to land measuring 0.33 acres in Sy.No. 701-
2, and item 8 of the schedule property involves a site of 29 ankanams with a
manure pit.
21. Since the Appeal is filed under Sec.100 CPC, this Court must see the
scope of Section 100 of C.P.C. Considerations in Section 100 of C.P.C. arise
only when there is a substantial question of law and not mere such questions
of law or one based on facts. However, it has to be borne in mind that in case
of misapplication of law and improper appreciation of evidence on record,
particularly the documentary evidence, it is the bounden duty of the High
Court sitting in Second Appeal to consider such questions which are
substantial in nature in terms of law.
22. In Mallanaguoda v. Ninganagouda1, the Hon'ble Supreme Court held
that:
10. The first appellate Court is the final Court on facts. This Court has
repeatedly held that the Judgment of the first appellate Court should not be
interfered with by the High Court in exercising its jurisdiction under Section
100CPC unless there is a substantial question of law. The High Court
committed an error in setting aside the Judgment of the first appellate Court
and finding fault with the final decree by taking a different view on factual
findings recorded by the first appellate Court.......
23. In K.N. Nagarajappa v. H. Narasimha Reddy2, the Hon'ble Supreme
Court held that:
14. Undoubtedly, the jurisdiction which a High Court derives under Section
100 is based upon its framing of a substantial question of law. As a matter of
law, it is axiomatic that the findings of the first appellate Court are final.
However, the rule that sans a substantial question of law, the High Courts
cannot interfere with the findings of the lower Court or concurrent findings of
fact is subject to two important caveats. The first is that if the findings of fact
are palpably perverse or outrage the conscience of the Court, in other words,
it flies in the face of logic that given the facts on the record, interference
would be justified. The other is where the findings of fact may call for
examination and be upset, in the limited circumstances spelt out in Section
103CPC.
15. Section 103CPC reads as follows:
(2021) 16 SCC 367
(2021) 18 SCC 263
"103. Power of High Court to determine issues of fact.--In any second
appeal, the High Court may, if the evidence on the record is sufficient,
determine any issue necessary for the disposal of the Appeal--
(a) which has not been determined by the lower appellate Court or both by
the Court of first instance and the lower appellate Court or
(b) which has been wrongly determined by such Court or courts by reason of
a decision on such question of law as is referred to in Section 100."
16. In the Judgment in Municipal Committee, Hoshiarpur v. Punjab S.E.B.
[Municipal Committee, Hoshiarpur v. Punjab S.E.B., (2010) 13 SCC 216 :
(2010) 4 S.C.C. (Civ) 861], this Court held as follows : (S.C.C. pp. 228-29,
paras 26-28)
"26. Thus, it is evident that Section 103CPC is not an exception to Section
100CPC, nor is it meant to supplant it; rather, it is to serve the same
purpose. Even while pressing Section 103CPC in service, the High Court
has to record a finding that it had to exercise such power because it found
that finding(s) of fact recorded by the Court (s) below stood vitiated because
of perversity. More so, such power can be exercised only in exceptional
circumstances and with circumspection, where the core question involved in
the case has not been decided by the Court (s) below.
27. There is no prohibition on entertaining a second appeal, even on a
question of fact, provided the Court is satisfied that the findings of fact
recorded by the courts below stood vitiated by non-consideration of relevant
evidence or by showing an erroneous approach to the matter, i.e. that the
findings of fact are found to be perverse. However, the High Court cannot
interfere with the concurrent findings of fact in a routine and casual manner
by substituting its subjective satisfaction in place of that of the lower courts.
(Vide Jagdish Singh v. Natthu Singh [Jagdish Singh v. Natthu Singh, (1992)
1 SCC 647]; Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-Un-
Niswan [Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-Un-Niswan,
(1999) 6 SCC 343] and Dinesh Kumar v. Yusuf Ali [Dinesh Kumar v. Yusuf
Ali, (2010) 12 SCC 740 : (2010) 4 S.C.C. (Civ) 738] .)
28. If a finding of fact is arrived at by ignoring or excluding relevant material
or by taking into consideration irrelevant material or if the finding so
outrageously defies logic as to suffer from the vice of irrationality incurring
the blame of being perverse, then the finding is rendered infirm in the eye of
the law. If the findings of the Court are based on no evidence or evidence
that is thoroughly unreliable or that suffers from the vice of procedural
irregularity or the findings are such that no reasonable person would have
arrived at those findings, then the findings may be said to be perverse.
Further, if the findings are either ipse dixit of the Court or based on
conjecture and surmises, the Judgment suffers from the additional infirmity
of non-application of mind and, thus, stands vitiated. (Vide Bharatha Matha
v. R. Vijaya Renganathan [Bharatha Matha v. R. Vijaya Renganathan,
(2010) 11 SCC 483 : (2010) 4 SCC (Civ) 498] .)"
(emphasis supplied)
17. In a recent judgment of this Court, Narayan SitaramjiBadwaik v. Bisaram
[Narayan SitaramjiBadwaik v. Bisaram, (2021) 15 SCC 234], this Court
observed as follows, in the context of the High Courts' jurisdiction to
appreciate factual issues under Section 103IPC : (S.C.C. p. 238, para 11)
"11. A bare perusal of Section 103CPC clearly indicates that it provides for
the High Court to decide an issue of fact, provided there is sufficient
evidence on record before it, in two circumstances. First, when an issue
necessary for the disposal of the Appeal has not been determined by the
lower appellate Court or by both the courts below. And second, when an
issue of fact has been wrongly determined by the Court (s) below by virtue of
the decision on the question of law under Section 100 of the Code of Civil
Procedure."
24. InBalasubramanian v. M. Arockiasamy3, the Hon'ble Supreme Court
held that:
14. In the background of the legal position and on reasserting the position
that there is very limited scope for reappreciating the evidence or interfering
with the finding of fact rendered by the trial court and the first appellate
Court in a second appeal under Section 100 of the Civil Procedure Code, it
is necessary for us to take note as to whether in the instant facts, the High
Court has breached the said settled position........................
15.................... When such divergent findings on fact were available
before the High Court in an appeal under Section 100 of the Civil Procedure
Code, though reappreciation of the evidence was not permissible, except
when it is perverse, but it was certainly open for the High Court to take note
of the case pleaded, evidence tendered, as also the findings rendered by
the two courts which were at variance with each other and one of the views
taken by the courts below was required to be approved.
25. The Plaintiffs assert that having resided elsewhere, Defendant has been
managing the joint family property in Kaligiri since the death of their father and
following their mother's passing. Subsequently, they demanded partition and
separate possession. In setting aside the trial Court's Judgment regarding
items No.4 and 8 of the schedule properties, the 1st Appellate Court noted that
the Defendant failed to adduce evidence demonstrating how he acquired the
(2021) 12 SCC 529
necessary funds for those items. Furthermore, the Plaintiffs did not let in any
evidence regarding the purchase of these properties on behalf of the joint
family. The 1st Appellate Court concluded that, since the Defendant did not
discharge the burden of proof to show that he purchased the items with
independent sources of income, it must be inferred that the acquisitions were
made using funds from the joint family.
26. To succeed in a partition suit, it must be demonstrated that the property
in question constitutes joint family property. The initial burden lies with the
Plaintiffs to establish that items No.4 and 8 of the schedule properties are also
joint family properties. According to the plaint, the joint family of the Plaintiffs
and Defendant is claimed to own and possess the properties shown in the
plaint schedule. However, the record indicates neither party has produced title
deeds for items 4 and 8 of the schedule properties. Upon appreciating the
evidence, this Court finds inconsistencies regarding the source of title for
these properties. The 1st Plaintiff, testifying as PW.1, stated that item No.4 of
the schedule property is his father's property, which was allegedly purchased
from Seshamma in 1949-50, supported by an agreement executed in the form
of a letter. Yet, during cross-examination, PW.1 admitted that he did not place
any documentation to demonstrate that his father paid cist for item No.4 of the
schedule property. In contrast, the Defendant, testifying as DW.1, asserted
that he purchased item No.4 of the schedule property from B. Krishnaiah ten
years ago for a consideration of Rs.6,600/- and has possessed and enjoyed it
for the last fifteen years, having paid cist during that time. When cross-
examined, DW.1 claimed not to know C.H. Seshamma and denied the
suggestion that item No.4 of the schedule property belonged to K. Venkata
Subbaiah, who allegedly transferred it to his daughter as a pasupukumkuma.
27. In assessing the evidence, the trial Court noted that the Defendant has
been in possession and enjoyment of item No.4 of the schedule property,
having paid land revenue as evidenced by Exs.B.1 to B.4. Moreover, the
revenue records, as reflected in Exs.B.5 to B.7, clearly indicate that the
Defendant is recorded as the pattadar for item No.4 of the schedule property.
The trial Court further observed that the Defendant has maintained
possession of item No.4 of the schedule property for more than the statutory
period and, the Plaintiffs did not claim to have ever cultivated item No.4 of the
schedule property, and the evidence indicates that the Defendant has
continuously possessed and enjoyed this property for a period sufficient to
establish a possessory title. However, it is also pertinent to note that the
evidence does not conclusively establish that Defendant has acquired this
possessory title, given his explicit assertion that he purchased the property
only ten years ago from B. Krishnaiah.
28. This Court holds that a suit for partition cannot be dismissed solely on
the grounds that the Plaintiffs have failed to establish their proprietary title.
Partition and separate possession may be sought based on the joint
possessory rights exercised by both the Plaintiffs and the Defendant. It is
recognized that possessory title constitutes a valid claim against all parties
except the true owner, and possession is a substantive right enshrined in law.
As such, the possessory title is heritable, divisible, and transferable and
remains distinct from the proprietary title. Nonetheless, the Plaintiffs must
prove their proprietary title to facilitate the partition of the property. Notably,
neither party has claimed that their family acquired exclusive title to items
No.4 and 8 of the schedule properties through adverse possession, despite
being in exclusive possession for a duration exceeding the statutory period.
29. Both parties have failed to adduce evidence supporting their respective
claims, placing the burden on the Plaintiffs to demonstrate that their father
acquired the schedule property. However, they have not submitted any
documentation to substantiate their alleged possession during the lifetime of
their father. While Defendant has asserted an independent title to justify his
possession, he, too, has not provided sufficient evidence to establish his right
over the property. Merely because the Defendant can produce evidence of his
possession for a period of ten years does not automatically validate his claim.
Furthermore, the Defendant has not explained the absence of his vendor's
testimony, nor does the case indicate that he purchased the property under a
registered sale deed. Based on the available evidence, it is difficult to
conclude that item No.4 of the schedule property is a joint family asset, as
claimed by the Plaintiffs. The 1st Appellate Court, in reversing the trial Court's
findings regarding item No.4 of the schedule property, assumed that
Defendant purchased the property with the joint family nucleus without any
independent source of income. However, there is no substantive basis for this
conclusion, nor is there evidence to support the notion that the property was
purchased using joint family funds.
30. Consequently, this Court finds that both the 1st Appellate Court and the
trial Court rendered incorrect findings while evaluating the evidence on record.
Given that the evidence is insufficient to assert that the joint family has
possessed item No.4 of the schedule property, the 1 st Appellate Court should
not have decreed the suit concerning item 4 of the schedule property.
Likewise, the trial Court erred in determining that the Defendant acquired a
possessory title without considering DW.1's testimony. Therefore, the decree
passed by the 1st Appellate Court regarding item No.4 of the schedule
property are liable to be set aside, as those findings resulted from inadequate
appreciation of the evidence and were based on unwarranted presumptions
contrary to DW.1's evidence.
31. Regarding item No.8 of the plaint schedule property, the Plaintiffs assert
that it is joint family property. However, they did not claim in the plaint that the
1st Plaintiff purchased item No.8 through an agreement of sale, nor did he
make such a claim during his chief examination. In contrast to this stand, the
Plaintiffs examined PW.4, who testified that in 1989, the 1st Plaintiff agreed to
purchase item No.8 of the schedule property and that an agreement was
made at the scribe's house, with the 1st Plaintiff paying the amount. However,
PW.4 testified that he was unaware of what transpired afterwards.
32. In Ram Sarup Gupta v. Bishun Narain Inter College4, the Hon'ble
Supreme Court held as follows:
"It is well settled that in the absence of pleading, evidence, if any,
produced by the parties cannot be considered. It is also equally settled
that no party should be permitted to travel beyond its pleading and that
all necessary and material facts should be pleaded by the party in
support of the case set up by it. The object and purpose of pleading is to
enable the adversary party to know the case it has to meet. In order to
have a fair trial it is imperative that the party should state the essential
material facts so that other party may not be taken by surprise."
"Whenever the question about lack of pleading is raised the enquiry
should not be so much about the form of the pleadings, instead; the
Court must find out whether in substance the parties knew the case and
the issues upon which they went to trial. Once it is found that in spite of
deficiency in the pleadings parties knew the case and they proceeded to
trial on those issues by producing evidence, in that event it would not be
open to a party to raise the question of absence of pleadings in Appeal."
33. This Court observes that if PW.4's testimony were truthful, the
Plaintiffs would not have hesitated to include such a plea in the plaint, nor
would they have hesitated from deposing a similar version as PWs.1 and 2.
It is evident that this version has been introduced solely through PW.4's
evidence. In contrast, DW.1 asserts that he purchased item No.8 of the
schedule property from PW.4 under an agreement of sale. According to
DW.1, he acquired the property from PW.4 for Rs.3,600/- in 1989 and has
been in possession of it ever since.
34. It is settled law that an agreement of sale does not convey title to the
property. Furthermore, PW.4 did not support DW.1's version, but he stated
that the 1st Plaintiff purchased the property. Although the Defendant claims
to have acquired the property through an agreement of sale, he has failed
to place this agreement before the Court. While he provided oral evidence
to support his assertion, the testimony of PW.4, coupled with the absence
of the agreement, leads this Court to be sceptical of the oral claims.
(1987) 2 SCC 555
Moreover, the suit was initiated in 1992, and the trial Court noted that
neither PW.1 nor DW.1 obtained a sale deed from PW.4, resulting in no
valid title being conferred regarding item No.8 of the schedule property.
The burden thus rests on the Plaintiffs to establish their case. A significant
dispute exists between the parties regarding whether the 1st Plaintiff or
Defendant acquired the schedule property. Additionally, no explanation has
been provided for why PW.4's evidence suggests that PW.1 purchased the
property under an agreement, nor why the Plaintiffs failed to include this
assertion in the plaint or their testimonies, claiming instead that it is joint
family property.
35. As rightly noted by the trial Court, no title has been conveyed in
favour of the Defendant or the Plaintiffs. The evidence is insufficient to
determine whether item No.8 is joint family property or that Defendant
possesses any rights over it. In light of these facts, this Court finds that the
1st Appellate Court made an erroneous determination by declaring items
No.4 and 8 to be joint family properties based solely on the Defendant's
claim of purchase, by drawing an inference that that with the joint family
funds. Given that the Plaintiffs provided evidence indicating through PW.4
that item No.8 was purchased by the 1st Plaintiff himself, the 1st Appellate
Court should not have drawn such a presumption without a proper
evidentiary basis. Thus, the findings of the 1st Appellate Court regarding
items No.4 and 8 lack validity due to insufficient appreciation of the
evidence.
36. Consequently, the evidence on record does not support the
conclusion that item No.8 is joint family property. Under these
circumstances, the 1st Appellate Court should not have decreed the
partition of the schedule properties. Since both parties have failed to
establish their claims as pleaded, the mere fact that the Defendant
demonstrated possession does not suffice to validate his case. It remains
for both parties to pursue their legal remedies in accordance with law, by
adducing cogent and convincing evidence supporting their assertions.
37. This Court discerns perversity in the Judgment rendered by the
learned 1st Appellate Court. The findings and reasoning provided by the 1st
Appellate Court are inconsistent with established legal principles.
Furthermore, the 1st Appellate Court should have considered the evidence
following the well-settled principles of law. As a result, the Judgment and
decree of the 1st Appellate Court, which granted relief of partition and
separate possession concerning items No.4 and 8 of the schedule
properties in favour of the Plaintiffs, are set aside. Consequently, the
substantial questions of law raised in this Second Appeal are adjudicated
in favour of the Appellants and against the Respondents.
38. Accordingly, this Second Appeal is allowed without costs. The
Judgment and decree, dated 11.03.2002 passed by the I Additional District
Judge, Nellore in A.S. No.17 of 1998, which granted the relief of partition
and separate possession concerning items No.4 and 8 of the schedule
properties, are set aside. As a result, A.S. No.17 of 1998 is dismissed, and
the judgment and decree in O.S. No.1 of 1992 passed by the Senior Civil
Judge, Kavali, in dismissing the suit in respect of items No.4 and 8 of the
schedule properties, are confirmed, however for different reasons.
Miscellaneous petitions pending, if any, in this Appeal, shall stand
closed.
_____________________________
JUSTICE T. MALLIKARJUNA RAO
Date: 05.11.2024
SAK
THE HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO
SECOND APPEAL NO.817 OF 2002
Date: 05.11.2024
SAK
