Telangana High Court
P. Yadagiri vs P.R. Raju on 28 May, 2025
Author: Nagesh Bheemapaka
Bench: Nagesh Bheemapaka
HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
C.C.C.A. No. 40 OF 2022
AND
CROSS OBJECTIONS NO. 27 OF 2022
JUDGMENT:
C.C.C.A.No. 40 of 2022 was filed by the 1st
defendant in O.S.No. 839 of 2014 on the file of the XIV
Additional Chief Judge (FTC), City Civil Courts at Hyderabad.
The said suit was filed by plaintiff - the 1st respondent herein for
partition of suit schedule properties.
2. Parties herein are referred to as they are arrayed in
the suit, for convenience.
3. Plaintiff and defendants 1 to 3 are sons and
daughters of late Sri P. Ram Gopal Rao and Smt. P. Laxmamma.
It is the case of plaintiff that on 04.03.1974, he purchased
house property bearing No. 1-7-629/93, admeasuring 233
square yards at Zamisthanpur, Ramnagar, Hyderabad for a sale
consideration of Rs.4,000/- from one Smt. Gandla Bharathi Bai
in the name of his mother and got construed ground and first
floor and residing therein. On 27.03.1985, he purchased
another schedule property bearing H.No. 1-7-1002/34/A
admeasuring 204 sq. yards at Ramnagar, Hyderabad ('A'
Schedule property) from G.S. Srinivasa Rao for a sale
consideration of Rs.5,000/- in the name of his father; at the
time of purchase it was an open plot and thereafter he got
constructed two-storied building out of his own funds and
permitted his brother - the 1st defendant to stay therein
temporarily. On 30.10.1985, plaintiff is stated to have
purchased 'B' schedule property bearing No. 1-7-1022/29/A/1
admeasuring 90 square yards for a sale consideration of
Rs.6,000/- from Ch. Kantamma in the name of his father and
raised a shed for carrying on his furniture business; thus,
plaintiff is the sole and absolute owner of the above properties.
It is the further case of plaintiff that Will deed dated
05.03.2007 was not executed by their mother and it was created
and fabricated by the 1st defendant who filed O.S.No. 440 of
2008 based on the said Will deed seeking partition of house
property bearing No. 1-7-629/93 and the same was pending as
on that date. As the defendants are not coming for partition, he
got issued a legal notice dated 12.08.2014 and since there was
no response from the 1st defendant, he filed the present suit
seeking partition of 'A' and 'B' Schedule properties which stand
in the name of their father Sri P. Ramgopal Rao by passing a
preliminary decree by allotting ½ share in the said properties.
4. The 1st defendant filed the written statement
denying the averments in the plaint. It is stated therein that
plaintiff purchasing three properties in the name of his parents
even when he was a 11-year-old boy is highly unbelievable. It is
stated that 'A' schedule property was a vacant land about 40
years ago and the same was occupied by him and got
constructed a double-storied house and originally, it is situated
in Harinagar slum; the said property correlates to Town Survey
No. 22 in Block P, Ward No. 153, Zamisthanpur Village and
belongs to Surabyarjug as per authentic town survey land
records, therefore, the alleged notarised sale deed dated
27.03.1985 is a fictitious document and it cannot be considered
as secondary evidence as per the judgment reported in J.
Yashoda v. K. Shobha Rani 1 and Shalimar Chemical Works
Ltd. v. Surendra Oil and Dal Mills (Refineries) 2. According
to the 1st defendant, 'A' Schedule property belongs to him and it
is not liable for partition and it never belongs to their father and
'B' Schedule property only is liable for partition as it was
purchased by their father under a registered sale deed and
himself and plaintiff will get 50% share each in the said
property.
(2007) 5 SCC 730
(2010) 8 SCC 423
5. Before the trial Court, on behalf of plaintiff, P.Ws.1
to 3 were examined and Exs.A1 to A7 were marked. On behalf of
the 1st defendant, D.W.1 was examined and no documents were
marked. On considering the evidence and on hearing the
counsel, the trial Court dismissed the suit.
6. Heard Sri G. Anil Kiran Kumar, learned counsel on
behalf of Appellant and Sri Shyam S. Agarwal, learned counsel
on behalf of the 1st respondent - plaintiff.
7. Plaintiff approached the Court seeking partition of
'A' and 'B' schedule properties claiming to have been purchased
by him in the name of his parents, hence, he has to establish
those properties were purchased by him with his own earnings
in the name of his parents, as per Section 101 of the Indian
Evidence Act. However, he did not choose to file any documents
in proof of the same. Ex.A1 is the certified copy of the sale deed
vide doc. No. 1665 of 1985 dated 30.10.1985 which discloses
that father of plaintiff purchased Plot No. 28/1 in Survey No.
148, admeasuring 90 square yards situated at Miyakal Banda,
new Atchiyya Naar, Slum area, Zamishthanpur from one
Ch. Kantamma ('B' Schedule property), whereas in the plaint, 'B'
Schedule property was shown as house admeasuring 90 square
yards bearing No. 1-7-1022/29/A/1 in Plot No. 28/1 in part of
Plot No 28 situated in Ramnagar, Hyderabad, may be after
purchasing plot, the parties might have raised structure therein.
However, plaintiff on the one hand contended that 'A' and 'B'
Schedule properties were purchased by him with his own
earnings and on the other, is seeking for partition of the said
properties. This itself creates a doubt on the case of plaintiff.
Admittedly, in the suit filed by the 1st defendant i.e. O.S.No.440
of 2008, Ex.A5 Will deed was relied on by the parties. The said
suit was decreed (wrongly noted by the trial Court as dismissed
at page 20 of its judgment) granting preliminary decree dated
28.10.2015 and Appeal was filed by plaintiff against the said
decree.
8. Today, the said Appeal was dismissed on the
ground that plaintiff failed to prove that he purchased suit
property therein out of his own funds earned by doing business
from 1972 onwards, particularly, as pointed out by the other
party, he was only 11 at that point of time and that it is
unbelievable that he could earn such amounts during that age.
Further, from the Will, it is clear that 'A' Schedule property
referred to in the subject suit was bequeathed in the name of
the 1st defendant herein and 'B' Schedule property in the name
of plaintiff and the only issue is with regard to the other house
property which was shown as Item 3 therein.
9. The trial Court in the suit on hand observed that
admittedly, plaintiff did not make all the properties as part of
suit, he especially sought for partition of 'A' and 'B' schedule
properties only by leaving other properties. It is well-settled that
in a suit for partition, all the properties and all the legal heirs
must be made as parties, otherwise the suit for partition is not
maintainable. Moreover, in the suit for partition, plaintiff has to
establish that suit properties are joint family properties, then
only the question of division and allotment of shares would
arise. Under the Hindu Succession Act, a female member is
also having share in the joint family properties, but plaintiff
sought for equal share between himself and the 1st defendant
leaving daughters. It is further observed that neither plaintiff
nor the 1st defendant chose to file any piece of paper showing
their occupation in either of the properties and even there is no
document to show that they are paying taxes in respect of the
said properties; they have not filed any document to show that
their names were entered in the relevant records in proof of
their possession or title and that their father or mother was in
possession and enjoyment of the said property at any time.
Further, plaintiff did not choose to adduce any evidence to show
that he was an earning member at the time of purchase of
properties and also proof of his age at the time of purchase of
properties in the context of the plea taken by the 1st defendant
that he was only 11-year-old at that time. Though the 1st
defendant contended that he is in occupation of 'A' Schedule
property since last 40 years and he got construed a double
storied building on that property, he did not produce any
document in proof of his possession. Thus holding, the trial
Court dismissed the suit.
10. In this Appeal, the 1st defendant had taken the plea
that the trial Judge ought to have held that Ex.A1 was
purchased by their father and was available for partition among
all the children under Section 8 of the 1956 Act. The trial Judge
ignored Ex.A1 document and erroneously held that there was
virtually no document in respect of 'B' schedule property. Here,
it is to be seen that this very 1st defendant filed O.S.No. 440 of
2008 seeking partition of House bearing No. 1-7-629/93 and 1-
7-629/93/A situated at Ramnagar between himself and plaintiff
relying on the Will deed executed by his mother and the said
suit was decreed; against the said judgment, plaintiff herein
filed CCCA No. 60 of 2016, wherein this Court relying on the
Will deed and the fact that plaintiff was aged 13 years in 1974
and it is difficult to believe that he purchased properties at that
age, dismissed the Appeal confirming the judgment in the suit.
In the said Will, 'A' schedule property was shown to have been
bequeathed in favour of the 1st defendant and 'B' Schedule
property in favour of plaintiff. At page 3, it is mentioned that
though Item No.(i) of schedule property exclusively belongs to
her elder son (the 1st defendant) who is in possession, she is
mentioning about the said property only as a matter of
precaution and her younger son (plaintiff) shall not have any
right or title in respect of the said item; similarly, Item No. (ii) of
schedule property exclusively devolve on her younger son.
Though plaintiff disputed the said Will as a fabricated
document, he did not file any proof in that regard. When the
Will deed is relied on by the 1st defendant, how he again claimed
that 'B' Schedule property said to have been covered by Ex.A1
was available for partition among all the children, is not
explained. In view of the foregoing discussion, this Court is not
in a position to grant any relief to the 1st defendant - appellant.
Hence, the judgment under Appeal does not warrant any
interference in the hands of this Court. The Appeal therefore,
must fail.
11. The Appeal is accordingly, dismissed. No costs.
CROSS OBJECTIONS:
12. Plaintiff filed the Cross-objections on the ground
that the Court below has proceeded with the matter under
wrong pretext that burden of proof always lies upon the person
who has to prove the fact under Section 101 of the Indian
Evidence Act, 1872 though the present suit being one for
partition of joint family properties purchased in the name of
parents, said principle is not applicable. The observation of the
Court below that plaintiff did not choose to exhibit the
document of agreement of sale in respect of Schedule 'A'
property is incorrect as plaintiff wanted to place on record the
proof thereof but the Court below refused and hence, Revision
was filed and it is pending. The observation of the trial Court
that there is no iota of evidence on record to show that suit
property is joint family property and liable for partition is prima
facie incorrect. Even as per the trial Court, Ex.A1 is the certified
copy of the sale deed of schedule 'B' property and oral evidence
has been led to prove the ownership of father of the parties over
Schedule 'A' property which is not in dispute. After the death of
parents, as per law, children are entitled to share the same and
under no stretch of imagination also, it could be stated that
there is no iota of truth in that regard.
13. Heard Sri Shyam S. Agarwal, learned counsel for
Cross-objectioner and Sri G.Anil Kiran Kumar, learned counsel
for respondents.
14. In view of the discussion made in the preceding
paragraphs, this Court is not inclined to entertain the Cross-
objections and the same are hereby dismissed.
15. Consequently, Miscellaneous Applications, if any
shall stand closed.
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NAGESH BHEEMAPAKA, J
28th May 2025
ksld
