THE HON’BLE SRI JUSTICE P NAVEEN RAO SECOND APPEAL No. 426 OF 2014 Date: 20.10.2014 Between :
Baddam Kanthamma W/o. Narayana, Age 71 years, Occu: Agriculture, R/o. Venkatraopet, V/o. Madipalli Mandal, Karimnagar District and others.
…. Appellants/appellants/defendants And Alluri Laxmi W/o. Bhagavantha Reddy, Age 44 years, Occu: Agriculture, r/o. Obulapur, V/o. Mallial Mandal, Karimnagar district.
…. Respondent/respondent/plaintiff This Court made the following :
THE HON’BLE SRI JUSTICE P NAVEEN RAO SECOND APPEAL No. 426 OF 2014 JUDGMENT :-
The unsuccessful appellants/defendants are the appellants herein. The first Appellate Court affirmed decree dated 11.7.2013 in O.S. No. 70 of 2007 on the file of the Senior Civil Judge, Jagtial.
2. For the sake of convenience, the parties are referred to as they are arrayed before the trial Court.
3. First defendant is mother of plaintiff and defendants 2 and 3. Defendants 2 and 3 are sisters of plaintiff. Defendant No. 4 claims to be the purchaser of item Nos. 3 and 4 of the plaint schedule properties.
4. Suit was instituted praying to grant preliminary decree declaring that the plaintiff is entitled 1/4th share in the plaint schedule properties and to pass final decree allotting 1/4th share to the plaintiff with metes and bounds and costs. The trial Court by judgment and decree dated 11.7.2013 granted preliminary decree holding that the plaintiff is entitled to 1/4th share in the plaint schedule properties and defendants 1 to 3 are entitled to 1/4th share each in the plaint schedule property but without costs. Aggrieved by the said judgment and decree, defendants filed A.S. No. 28 of 2013 on the file of the II Additional District Judge, Karimnagar at Jagtial. By judgment and decree dated 8.11.2013 the first Appellate Court dismissed the appeal affirming the judgment and decree passed by the trial Court.
5. Case of the plaintiff was that item Nos. 1 to 4 of the suit schedule properties are ancestral joint family properties. Father of the plaintiff died in the year 2004. Apprehending that without her consent the first defendant was disposing of the properties, the plaintiff issued legal notice dated 12.6.2007 calling upon the defendants 1 to 3 to partition the suit properties and to apportion 1/4th of the suit properties to the plaintiff. On 25.6.2007 plaintiff demanded the first defendant to effect partition. Since defendants 1 to 3 did not accede to the request made by the plaintiff for partition of the suit schedule properties, plaintiff instituted O S No. 70 of 2007.
6. Case of the defendants was that item No. 1 of the suit schedule property i.e., dry mango orchard admeasuring Ac.4.02 and item no.2 land admeasuring Ac.0.30 guntas in Survey No. 301/E are not ancestral properties and that item no.3 was purchased by 4th defendant 10 years ago. Plaintiff was married 20 years ago and after her marriage, she was no way concerned with the suit schedule properties. Plaintiff was paid Rs.60,000/- in cash and ten tulas of gold at the time of performance of her marriage and subsequently at the instance of her husband, cash of Rs.60,000/- and Rs.50,000 was paid. Further case of the defendants 1 to 3 was that late Baddam Narayana (father of plaintiff and defendants 2 & 3) incurred huge debts running into Rs.4,00,000/- to perform the marriage of his daughters, i.e., plaintiff, defendants 2 and 3 and in order to clear the debts there was oral family settlement where-under plaintiff and defendants 2 and 3 agreed to relinquish their shares and first defendant was authorised to hold all the properties and to clear the debts. Therefore, the question of now partitioning the properties and giving a share to the plaintiff does not arise. It is further case of the defendants that item No. 1 of the suit schedule property was mutated in favour of first defendant and pattadar pass books and title deeds were also issued. Item No.2 of the suit schedule property was purchased by first defendant by borrowing loans and same is her self acquired property. Even defendants 2 and 3 were given Rs.60,000/- each as part of the settlement. That in item no.1 of the suit schedule property, first defendant on her own raised a mango orchard. Further case of the defendants is that first defendant borrowed Rs.3,85,000/- from several people and Rs.25,000/- from Cooperative banks. It is further case of defendants that item No. 3 of suit schedule was sold to 4th defendant and the same no more belongs to the joint family.
7. On the basis of pleadings the trial Court framed the following issues for consideration:
1. Whether the plaintiff is entitled for partition? If yes, what are the shares of the plaintiff and defendant No.1 to 3?
2. Whether the Court fee paid is sufficient?
3. Whether the suit is within limitation?
4. What relief ?
8. On behalf of plaintiff P.W.1 to P.W.3 were examined. Exhibits Ex.A.1 to A.7 were marked.
9. On behalf of defendants 1 to 3, D.W.1 to D.W.6 were examined and Ex.B1 to B.5 were marked.
10. On through evaluation of evidence on record and on careful consideration of submissions made, trial Court held that all the suit schedule properties are joint family properties and plaintiff is entitled to 1/4th share in the suit schedule properties. The suit was decreed.
11. Assailing the said judgment and decree, defendants filed Appeal Suit No. 28 of 2013. The first appellate Court framed the following issues for consideration:
1. Whether the item No.2 of the suit schedule lands is the self acquired property of first appellant as contended by her?
2. Whether the 4th appellant purchased the Item NO.3 of the suit schedule lands from Baddam Narayana during his life time and if the answer is affirmative, then, whether the 4th respondent/appellant became absolute owner and possessor of it since the date of purchase and for that reason the same can not be subjected for partition?
3. Whether the respondent and the appellants 2 and 3 relinquished their shares in the Item Nos.1 and 4 of the suit schedule lands in favour of first appellant as contended by the appellants.?
4. Whether the respondent/plaintiff is entitled for partition and separate possession of the suit schedule lands.?
5. Whether the judgment and decree of the trial Court warrants any interference?
6. To what relief?
12. Having analysed the entire evidence on record, the first appellate Court held that the findings recorded by trial Court are not dislodged by any evidence on record brought out by the defendants and held that the issues were properly decided by the trial Court and accordingly the appeal suit was dismissed by judgment dated 8.11.2013.
13. Learned counsel for appellant Sri V.Ravinder Rao contended that the Courts below have failed to make a distinction between pleadings and proof and that proof brought out during the course of recording of evidence need not be supported by pleadings and trial Court and first appellate Court erred in not appreciating this principle.
14. As seen from the judgments of Courts below, there were no pleadings in support of the stand of the defendants that item No.1 of the suit schedule properties was acquired by the first defendant from out of her own funds and that item No.3 was sold by late Baddam Narayana during his life time and therefore does not form part of the joint family property. Courts below constantly held that not only there were no specific pleadings with reference to their stand on the status of these two properties but there were also conflicting statements made by the defendants in their evidence. Courts below found that the statements brought out during the course of recording of evidence do not match the pleadings in the written statement. The Courts below found inconsistency in the written statement and in the evidence recorded. The trial Court as well as the first appellate Court discorded the stand of the defendants with reference to suit schedule properties at item No. 1 and 3 as not forming part of joint family property. Both Courts have also found inconsistency in their submissions regarding the oral partition stated to have taken place after the death of Bellam Narayana whereby and whereunder plaintiff and defendants 2 and 3 agreed to relinquish their shares in the joint family property in favour of defendant no.1 and defendant no.1 became absolute owner and became entitled to deal with the said property as her self acquired property. Courts below discorded the version of the defendants regarding the source of funds to purchase item no.1 by defendant no.1 and alleged purchase of item no.3 by defendant no.4 and alleged oral partition. Both Courts have concurrently came to the conclusion that the suit schedule properties are joint family properties and plaintiff is entitled to 1/4th share of the said properties. On elaborate analysis of the evidence and contentions, trial Court and first appellate Court have recorded consistent finding on facts on all issues. Courts below not rested their findings only on the pleadings and proof brought out by evidence but found inconsistency in the stand of defendants on several aspects. It is settled principle of law that no proof can be brought on record either orally or by way of documentary proof which is inconsistent or which is not supported by the pleadings in the written statement by the defendants. I see no merit in the Second Appeal and it is accordingly dismissed. No costs. Sequel to the same, the miscellaneous petitions, if any, stand dismissed.
P.NAVEEN RAO,J DATE: 20-10-2014 TVK THE HON’BLE SRI JUSTICE P NAVEEN RAO SECOND APPEAL No. 426 OF 2014 Date: 20-10-2014