A.Srinivas Reddy vs A.Narasimha Reddy
2023 Latest Caselaw 1878 Tel

     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

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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.

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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

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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

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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

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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

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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

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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.

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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.

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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