S. Narsimha Reddy Died Per Lrs ... vs Smt G. Vijayamma
2023 Latest Caselaw 1018 Tel

     HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY

                SECOND APPEAL No.921 of 2011

JUDGMENT :

This appeal is arising out of the judgment dated 30.03.2011

in A.S.No.32 of 2008 on the file of Family Court-cum-Additional

District and Sessions Judge, Mahabubnagar, which is arising out of

the judgment and decree dated 29.01.2008 in O.S.No.6 of 2004 on

the file of Senior Civil Judge, Mahabubnagar.

2. For the purpose of convenience, the parties are referred to as

arrayed in the original suit.

3. The appellants are the defendants. The suit was filed for

partition and separate possession. The brief facts of the plaint are

that plaintiff Nos.1 to 3 are the sisters of defendant Nos.1 to 3. The

suit scheduled land in Sy.No.503 to an extent of 10-00 acres

situated at Sankalamaddi village of Addakal Mandal, is the self-

acquired property and stridhana of their mother Smt. Rathnamma

and that during the life time of said Rathnamma, she donated the

land to the Government for construction of office complex and

possession of land was handedover to the Government in the year

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1984 and the land was converted into Khariz Khatha. But the

Mandal headquarters could not be constructed, as Addakal was

selected as Mandal headquarters. Then, on the petition by the

parties to the suit, the Chief Commissioner of Land Administration,

A.P., ordered for return of land to the legal heirs of the donor

Smt.Rathnamma vide proceedings No.B4/1348/2002, dated

01.08.2002. As per the said orders, the District Collector,

Mahabubnagar issued proceedings No.B1/5116/2001, dated

23.06.2003 and directed the MRO to return the land to the legal

heirs of the original donor. Accordingly, the MRO, Addakal has

complied with the orders of the District Collector and restored the

names of defendant Nos.1 to 3 alone in the revenue records as legal

heirs of Rathnamma, instead of plaintiff Nos.1 to 3 along with

defendant Nos.1 to 3.

4. It is the further case of plaintiffs that they have filed an

application before the MRO, Addakal under Section 4 of Record of

Rights Act and that MRO, Addakal has granted succession in

favour of defendant Nos.1 to 3 only, for which, the plaintiffs have

filed an appeal against the illegal succession done by MRO, before

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the RDO, for which, an appeal was registered as Appeal

No.3013/03, as the property is the Stridhana property of plaintiff's

mother, the plaintiffs are also equally entitled for equal shares

along with defendant Nos.1 to 3, but the MRO delayed in issuing

the proceedings, for which, defendant Nos.1 to 3 filed Writ Petition

No.19333/03 before this Court, wherein, directions were issued to

implement the orders of the Collector. It is the specific contention

of the plaintiffs that the MRO ignored the orders of the Collector

and recorded the names of defendant Nos.1 to 3 alone in the

revenue records and in view of the illegal implementation of the

orders in the name of defendant Nos.1 to 3, they converted the

entire 10 acres of land into house plots and started selling the land

and that the defendants executed registered sale deed document

No.3029/03 in favour of one Md.Omer for 266 square yards, and as

such, the present suit was filed by the plaintiffs demanding for

partition of suit schedule land into six equal shares.

5. The defendants filed a detailed written statement denying all

the allegations made in the plaint. The specific contention of the

defendants is that the lands in Sy.No.363/1 to an extent of Ac.1-22

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guntas, Sy.No.363/2 to an extent of Ac.0-38 guntas, Sy.No.365 to

an extent of Ac.1-39 gts., Sy.No.366 to an extent of Ac.2-30 gts.,

Sy.No.502 to an extent of Ac.9-11 gts., dry and the suit survey

No.503 to an extent of Ac.15-34 guntas, totally an area of Ac.32-34

guntas originally belong to one Sri Venkata Kishan Rao resident of

Gundumal village of Kodangal Taluq and the entire land was under

the actual possession and enjoyment of Late Sudhakar Reddy, who

is the father of plaintiffs and defendants 1 to 3 and in continuation

of his actual possession, Late Sudhakar Reddy had purchased the

above land including the suit schedule property from the original

owner in the year 1958. During the life time of Sudhakar Reddy,

he partitioned the entire property including the above purchased

land into 4 equal shares amongst his sons i.e. S. Ramchandra

Reddy and defendant Nos.1 to 3 and the eldest son S.Ramchandra

Reddy, by taking his share, has separated from his father and his

step-brothers and since then, defendant Nos.1 to 3 are living

separately. It is the specific averment in the written statement that

Sudhakar Reddy lived with his three sons i.e. defendant Nos.1 to 3

till his death in 1969 and defendants 1 to 3 are enjoying their

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respective shares as absolute owners and possessors of the land and

perfected title over the entire property.

6. It is the further case of the defendants that Late

S.Rathnamma's two brothers, namely, Bojja Raghavareddy and

B.Damodar Reddy together have given the land in Sy.No.456 to an

extent of Ac.1-27 guntas of Balmoor village and Mandal to their

sisters towards "Pasupu Kumkuma" and the same is Stridhana

property of S.Rathnamma, which was cultivated by the legal heirs

of her brothers, till her death and they were giving share of the

yield. After the death of S.Rathnamma, the plaintiffs herein have

sold said property of their mother in favour of one Narsimulu S/o.

Sailu and Chinna Narsimulu S/o.Sailu, residents of Ananthavaram

village of Balmoor Mandal for huge sale consideration amount and

they alone have taken the entire amount for themselves and that the

plaintiffs have no interest over the suit schedule property i.e. the

land in Sy.No.503 and that the marriages of plaintiffs were

performed long back and at the time of their marriages, sufficient

amounts, gold and silver were given to plaintiff Nos.1 and 2 by

their father S.Sudhakar Reddy and the marriage of plaintiff No.3

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was performed by defendants 1 to 3 and as such, they are not

entitled for partition of the suit schedule property. It is the further

case of the defendants that the original owner of the suit land and

also the lands purchased in other survey numbers was clearly

mentioned in the declaration in C.C.No.A/1908/75 filed by him

under the Land Ceiling Act by the original owner that the suit land

and other lands shown above, were in the exclusive possession and

enjoyment of the defendants which were purchased by him and

therefore, the same could not be computed as his holding of lands

and that the defendants got filed separate declaration by their

mother S. Rathnamma and the High Court, in its judgment dated

25.09.2003 passed in W.P.No.19339/03 has rightly directed the

revenue authorities to implement the names of defendants 1 to 3

herein in the revenue records and the said judgment has become

final. As per the directions of this Court only, the revenue

authorities concerned have mutated the names of defendants 1 to 3

in ROR and other records for the suit land to an extent of Ac.8-98

cents and issued pattadar passbooks and title deeds with regard to

the ownership of the said land. Therefore, defendants 1 to 3 alone

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are exclusive owners and possessors of the land and the same

cannot be partitioned.

7. It is the further averment in the written statement that the

plaintiffs have not taken steps to challenge the verdict of the High

Court in W.P.No.19339/03 which has become final and that the

actual extent of the said land is Ac.15-34 cents, out of which, two

acres was already acquired by the Government for house sites for

Scheduled Caste people of the village, in which area, houses were

already constructed and the defendants 1 to 3, for the purpose of

establishing the Mandal Complex in the name of their mother

Smt.Rathnamma, have donated the area of Ac.10-00 cents, which

could not be established for some reasons, that ultimately out of

Ac.10-00 land given by defendants 1 to 3, they got back an extent

of Ac.8-98 cents and the plaintiffs, without looking into all these

aspects, have claimed total land of 10 Acres in Sy.No.503, which

was wrong and incorrect. The suit land is still in the name of

original owner Venkata Kishan Rao even today and the claim for

partition is imaginary and illegal, which is not maintainable under

law, and therefore, prayed to dismiss the suit.

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8. Basing on the above pleadings, the trial Court has framed the

following issues for trial:

"1. Whether the suit schedule property is the Stridhana property of the mother of the plaintiffs and defendants ?

2. Whether the plaintiffs are entitled for decree for partition of 1/6th share each in the suit schedule property with separate possession ?

3. Whether the plaint schedule property is the self acquired property of the father of the parties and that whether it was partitioned among the defendants and one more brother even during the life time of the father ?

4. To what relief ?"

9. On behalf of plaintiffs, PW.1 was examined and got Exs.A-1

and A-2 marked. On behalf of defendants, DW-1 was examined

and got Exs.B-1 to B-43 marked. The trial Court, after considering

the rival contentions and the material on record, decreed the suit by

partitioning the suit schedule property into six shares by allotting

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1/6th share to each of the plaintiff and also granted separate

possession.

10. Being aggrieved by the judgment and decree of the trial

Court, the defendants in the suit have preferred appeal before the

Family Court-cum-Additional District and Sessions Judge,

Mahabubnagar, vide A.S.No.32 of 2008. The appellate Court has

framed the following points for consideration :

"1. Whether the suit schedule property was purchased by S. Sudhakar Reddy from Venkata Kishan Rao in the year 1958 ? If so, late Sudhakar Reddy became absolute owner of suit schedule property ?

2. Whether suit schedule property is self-acquired Stridhana property of late Rathnamma ?

3. Whether plaintiffs are entitled to seek partition of suit schedule property and for allotment of their 1/6th share each and for separate possession as prayed for in O.S.No.6/2004 ?

4. Whether there are any grounds to interfere with the Judgment and Decree of learned Senior Civil Judge at Mahabubnagar made in O.S.No.6/2004 dt.29.1.2008 ?

5. To what relief ?"

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11. During the pendency of appeal, plaintiffs have filed a

petition to recall PW-1 for the purpose of marking some documents

and Exs.A-3 to A-11 were marked as additional evidence before

the appellate Court. On appreciating the entire evidence on record

and considering the rival contentions of the parties, the appellate

Court has dismissed the appeal, confirming the judgment of the

trial Court. Hence, this Second Appeal is preferred by the

defendants. The following substantial questions of law were

framed :

"i) Whether the courts below were right in holding that the suit property belongs to Sthreedhana of Smt. Late Ratnamma (Mother of the parties) or self-acquired property of the appellants and their father.

ii) Whether the court below right in ignoring the material evidence in Ex.B-1 to B-43 which contain the specific recital about the title and possession.

iii) What is the weight of the evidence in Ex.A-1 to A-11.

iv) Whether the lower courts right in determining the case in absence of true and trustworthy evidence.

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12. It is the specific contention of the learned counsel for

appellants that there is no documentary evidence on record to show

that the property belongs to their mother Late Rathnamma and

inspite of it, both the Courts below have decreed the suit in favour

of plaintiffs on the ground that plaintiffs being the daughters of

Rathnamma, are entitled for 1/6th share, which is bad in the eye of

law. It is also contended by the learned counsel for the appellants

that Ex.A-3 is only the copy of representation and Exs.A-4 to A-11

are the revenue documents, which do not confer any title on said

Rathnamma and therefore, the first appellate Court has not

appreciated the documentary evidence in proper perspective and in

the absence of true and trustworthy evidence, it is a fit case to

allow the Second Appeal by setting aside the orders of both the

Courts below.

13. The learned counsel for the appellants, in support of his

contentions, has relied on the judgment of Hon'ble Supreme Court

in Easwari v. Parvathi & others1, wherein, it is held that, "the

High Court can interfere in second appeal when finding of the first

(2014) 15 SCC 255

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appellate court is not properly supported by evidence. The High

Court cannot be precluded from reversing the order and judgment

of the lower appellate Court if there is perversity in the decision

due to mis-appreciation of evidence."

14. On the other hand, the learned counsel for respondents has

contended that the ROC letter of the District Collector disclose that

initially the property was donated in the name of Rathnamma to the

Government for constructing Mandal headquarters, which has been

returned which itself shows that the property is in the name of

Rathnamma and therefore, the plaintiffs are entitled for a share in

the said property.

15. Under Section 100 of CPC, there is very limited scope for

interference. The substantial questions of law to be considered in

this Second Appeal are;

"1. Whether the suit schedule property which is in Sy.No.503 to an extent of 10 acres, is property of Late Rathnamma, being given by her parents or not, in which, the plaintiffs are entitled for partition or not, in the absence of any title ?"

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2. Whether the revenue records confer any title in respect of the property ?

16. On perusal of the entire evidence, it is evident that the

documents relied on by the defendants disclose that the suit

schedule property was donated in the name of Rathnamma in the

year 1984 and since Mandal Complex could not be constructed,

Government ordered to re-deliver the said land to the legal

representatives of the donor/Smt. Rathnamma. On perusal of the

documents filed by the plaintiffs before the Court, it is evident that

Exs.A-1 and A-2 are the notices issued by the plaintiffs to the

MRO and RDO for recording the names of defendant Nos.1 to 3 as

successors of the suit land. The entire evidence on record discloses

that the plaintiffs have filed suit for partition and allotment of 1/6th

share to each of them. The trial Court have come to the conclusion

that the suit schedule property is in the name of their mother, which

was donated for the purpose of Mandal office and again it was

delivered back by the Government. There is no iota of evidence

before the Court to show that the said property belongs to

Rathnamma. The plaintiffs did not file any document to prove that

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the suit schedule land is in the name of Rathnamma. As per

Section 101 of Indian Evidence Act, whoever asserts a particular

fact, it is for them to prove the same. Therefore, the initial burden

is on the plaintiffs to prove that the property is in the name of

Rathnamma, in which, they are entitled for a share. Without

establishing the title of Rathnamma in respect of suit land, the

plaintiffs cannot seek any relief for partition of the said property.

Admittedly, the land was donated to the Government in the name

of Rathnamma and it has been re-delivered to defendant Nos.1 to 3

as legal heirs of Late Sudhakar Reddy. Exs.B-1 to B-15 are the

Khasra pahanis in respect of the suit land starting from the year

1954-55 to 1999-2000, which are in the name of the original owner

and pattadar of the land Late Sudhakar Reddy. Exs.B-16 and B-17

are the certified copies of ROR and letter of RDO, dated

10.10.1990. All the documents relied on by the defendants show

that they are in possession of the said land and they have succeeded

to the land from their father. The judgment dated 25.09.2003 of

this Court in W.P.No.19339 of 2003 disclose that a specific

direction was given to the revenue authorities to implement the

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orders of the Collector forthwith. Admittedly, no writ appeal was

preferred by the plaintiffs challenging the orders of this Court. The

initial burden is always on plaintiffs to prove that they are entitled

for the relief. The additional evidence filed vide Exs.A-3 to A-11

also does not disclose that Rathnamma is the original owner of the

property. Both the Courts have erred in giving a finding that

Rathnamma has donated the said property in the year 1984 for

construction of Mandal complex and came to the conclusion that

Rathnamma is the owner of property, and therefore, the plaintiffs

are entitled for 1/6th share each. The Courts below cannot presume

that the property is in the name of Rathnamma, without there being

any documentary evidence. Admittedly, the parties are none other

than the real brothers and sisters. Moreover, there is no document

before the Court to prove that Rathnamma has inherited the suit

schedule property by way of 'pasupu kumkuma'. The plaintiffs

have not examined their maternal uncles to prove that the land was

given to their mother by way of Stridhana in order to substantiate

their contentions. PW-1 alone was examined and the entire

evidence is nothing but reiteration of the plaint. This is not a suit

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for possession but it is a suit for partition seeking right over the

property. Therefore, this Court is of the considered view that

without there being any documentary evidence to prove about the

right over the property, the Courts below cannot pass decree in a

suit for partition. Ex.A-4 shows that an extent of 2 acres of land in

Sy.No.503 was covered by Government house sites and remaining

extent is in possession of Sudheer Reddy, Johan Prathap Reddy and

Ranga Reddy. As per Exs.A-5 to A-8 i.e. pahanis for the years

from 1954-55 to 2000-2001, Sri Venkata Kishan Rao was the

pattadar of the suit schedule property to an extent of 15 acres and

the father of the plaintiffs and defendants were in possession of the

said land. On perusal of Exs.A-9 to A-11, it is evident that the

names of Sri Venkata Kishan Rao and Government Mandal

Complex were shown as pattadars of the said land.

17. On perusal of the above documents, it is evident that the

defendants have come up with right contention before the Court

that 2 acres of land was acquired by the Government for providing

house sites to Scheduled Caste people and the remaining land was

in possession of their father. It is the specific admission of PW-1

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in her evidence that she did not file any registered sale deed before

the Court to prove that the property is in the name of her mother.

Though it is the evidence of PW-1 that there is passbook in the

name of Rathnamma, the same was not produced before the Court

and further, it is the specific contention of plaintiffs that they were

not aware of the acquiring of the land and as to the compensation

paid to the defendants.

18. On the other hand, the evidence of defendants disclose that

DW-1 and his brothers have donated the land to the Government in

the name of their mother, in her memory and as on the date of

donating the said land, their mother was alive. They have also

filed a copy of the sale deed, to prove that the purchase was made

by their father from one Kishan Rao, but his father's name was not

mutated in the revenue records, but after the death of their father,

they got mutated their names in the revenue records in the year

2007. The evidence of defendants further disclose that they have

made an application to the Collector for return of the suit property,

as the Mandal Office was not constructed in the land, for which,

the Collector has issued proceedings to return the land and his

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evidence also disclose that they have applied for mutation of their

names in the revenue records being the legal heirs of Rathnamma.

On perusal of the entire evidence on record, it is evident that there

is not even a scrap of paper to prove that the land belongs to

Rathnamma, for which, the plaintiffs have a right over the property

for seeking partition. In the absence of such evidence on record,

this Court is of the considered view that both the Courts have erred

in granting the decree in favour of plaintiffs.

19. The learned counsel for respondents has relied on the

judgment of Hon'ble Supreme Court in V.Prabhakara v.

Basavaraj K. (Dead) by Legal Representatives & another2,

wherein, it is held as under:

"A relief can only be on the basis of the pleadings alone. Evidence is also to be based on such pleadings. The only exception would be when the parties know each other's case very well and such a pleading is implicit in an issue. Additionally, a Court can take judicial note of a fact when it is so apparent on the face of the record."

(2022) 1 SCC 115

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The aforesaid judgment is in no way applicable to the facts of the

present case. On the other hand, the judgment relied on by the

learned counsel for appellants in the case of Easwari v. Parvathi

(1 supra) is squarely applicable to the facts and circumstances of

the present case.

20. Furthermore, it is not the case of the plaintiffs that they are

entitled for the share of the property of their father Late Sudhakar

Reddy for an extent of Ac.32-00. The State amendment made to

the Hindu Succession Act has come into force in the year 1986 and

Central Amendment has come into force in the year 2005. It is not

in dispute that the father of plaintiffs 1 to 3 and defendants 1 to 3

died in the year 1969, thus, as on the date of amendment of Hindu

Succession Act, the father of plaintiffs is no more.

21. As per the judgment of the Hon'ble Apex Court in Prakash

and others v. Phulavati and others3, daughters can claim for

partition of property of the male Hindu, only during his life time.

However, the case of the plaintiffs is that they are entitled for 1/6th

share in the property of their mother Rathnamma, as their mother

2016) 2 SCC 36 (

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inherited the property as Stridhana. Therefore, it can be construed

that the plaintiffs have miserably failed to prove that the suit

scheduled property is the Stridhana property of their mother

Rathnamma, as there is no specific documentary evidence to show

that the property was in the name of Rathnamma. It is relevant to

mention that the order of Collector, directing MRO to return the

property to the legal heirs of Rathnamma does not confer any title,

in order to claim right by the plaintiffs. Therefore, the plaintiffs

are not entitled to seek for partition of the suit scheduled property,

in the absence of establishing that the property belongs to their

mother Rathnamma, as she got it by way of Stridhana.

22. For the aforesaid reasons, this second appeal is allowed,

setting aside the judgment and decree dated 30.03.2011 in

A.S.No.32 of 2008 on the file of Family Court-cum-Additional

District and Sessions Judge, Mahabubnagar. No order as to costs.

Pending miscellaneous applications, if any, shall stand closed.

________________________________ G.ANUPAMA CHAKRAVARTHY, J Date: 01.03.2023 ajr