THE HON’BLE SRI JUSTICE C.V. NAGARJUNA REDDY SECOND APPEAL No.758 of 2013 Dated: 20.09.2014 Between:
Ananthaiah .. Appellant and Ramamma and others .. Respondents Counsel for the appellant: Mr. J. Suresh Babu For Mr. Venugopala Rao Pasnooru Counsel for the Respondents: --
The Court made the following:
JUDGMENT:
This second appeal arises out of judgment and decree dated 09.11.2010 in A.S.No.73 of 2007 on the file of the learned VI Additional District Judge (Fast Track Court), at Vikarabad, whereby he has confirmed the judgment and decree dated 29.07.2003 in O.S.No.177 of 1997 on the file of the learned Junior Civil Judge, Tandur.
I have heard Mr. J. Suresh Babu, learned counsel representing Mr. Venugopala Rao Pasnooru, learned counsel for the appellant, and perused the record.
Respondent No.1 filed the above-mentioned suit for partition and separate possession of her 1/4th share in the suit schedule property comprising items 1 to 3. It is her pleaded case that her father late Narsappa got agricultural land to an extent of Ac.2-39 gts. in Sy.No.64/32 of Kokat Village, Yalal Mandal, Ranga Reddy District, and that all the properties were acquired from out of the joint family nucleus. On the basis of the respective pleadings, the trial Court framed the following issues:
1) Whether the plaintiff is entitled for the partition of plaint schedule property as prayed for?
2) Whether the first defendant is exclusive owner and possessor of the suit land and the suit house?
3) Whether the court fee paid by the plaintiff is incorrect?
4) To what relief?
On behalf of respondent No.1, she has examined herself as P.W.1 and examined one Mallaiah as P.W.2. She has also got Exs.A1 to A3 marked on her side. The appellant, who is defendant No.1 in the suit, examined himself as D.W.1 and also examined one Goreppa as D.W.2 and got Exs.B1 to B3 marked.
On appreciation of the oral and documentary evidence, the trial Court answered all the issues in favour of respondent No.1-plaintiff and accordingly passed a preliminary decree. The judgment and decree of the lower Court was confirmed in appeal. Hence, this second appeal.
The learned counsel for the appellant mainly advanced two contentions, namely; 1) that the lower appellate court has not framed detailed points for determination and 2) that both the courts below have not properly appreciated the evidence on record.
A perusal of the judgment of the lower appellate court would show that it has framed the following point for consideration:
“Whether the appeal suit can be allowed?”
Under clause (a) of Rule 31 of Order XLI C.P.C, the judgment of the appellate court shall state the points for determination. There is no gainsaying of the fact that the lower appellate court has not framed multiple points based on the issues proposed to be dealt with by it. The lower appellate court has nevertheless discussed all the relevant aspects relating to evidence and on re-appreciation of the same, it has dismissed the appeal. Therefore, non-framing of proper points has not affected the outcome of the case.
While elaborating his second submission, the learned counsel for the appellant has argued that his client was working as a gumastha and had independent income. The fact that the original head of the family, namely; late Narsappa was owning Ac.2-39 gts. in Sy.No.64/32 of Kokat Village, Yalal Mandal, is not in dispute. The further fact that a joint family existed is also not in dispute. With the admission of existence of joint family nucleus, the burden heavily shifted to the appellant to prove that items 2 and 3, with respect to which he has raised a dispute, were purchased from out of his personal funds. The law is well settled that where joint family nucleus was available, which was sufficient for acquiring the properties, a presumption would follow that the property standing in the names of individual members of the joint family were purchased from out of the joint family nucleus. The appellant has miserably failed in discharging the burden cast on him to prove that items 2 and 3 are his self acquisitions.
For the above-mentioned reasons, I do not find any error of law in the judgments of both the courts below and I am of the view that no substantial question of law arises in this second appeal.
The second appeal is accordingly dismissed. As a sequel to the dismissal of the second appeal, S.A.M.P.No.1953 of 2013 shall stand disposed of as infructuous.
C.V.NAGARJUNA REDDY, J 20th September, 2014 IBL