THE HON'BLE SRI JUSTICE M.S.RAMACHANDRA RAO
APPEAL SUIT No.1630 of 1993
Date: 14-07-2014
Between :-
1. Chintapalli Aswathappa and another.
… Appellants.
And
1. Ademma (Died) and others.
… Respondents.
Counsel for the appellants : Sri T.C.D.Sekhar Counsel for respondents : --
This Court delivered the following :-
THE HON’BLE SRI JUSTICE M.S. RAMACHANDRA RAO
APPEAL SUIT No.1630 of 1993
JUDGMENT:
This appeal is filed challenging the judgment and decree dt.23-11-1992 in O.S.No.41 of 1986 of the Additional District Judge, Hindupur.
2. The appellants herein are plaintiffs in the suit. The suit was filed for partition of the plaint schedule properties into 5 shares, for allotment of 1/5th share to plaintiffs and for possession of the same.
3. The 1st plaintiff is husband of 2nd plaintiff. Defendant Nos.2 to 4 are sisters of 2nd plaintiff. The 1st defendant is mother and one Elipi Nanjaiah is father of 2nd plaintiff and defendant Nos.2 to 4.
4. The plaintiffs contended that there was a family arrangement during the lifetime of Nanjaiah on 09-4-1976 which was reduced into writing and 2nd plaintiff was given an extent of Ac.1.20 cents in Sy.No.637/1 and 6 annas joint right in a well situated in Sy.No.641/1 along with right on pump room and pump set; that plaintiffs are residing in door Nos.14-64 and 13- 28 in Srirangarajupalli; that 2nd plaintiff has no disputes with defendant Nos.1 to 4; that 5th defendant is a lessee under Nanjaiah; on the death of Nanjaiah, under the Hindu Succession Act, 1956, the 2nd plaintiff and defendant Nos.1 to 4 are equally entitled to 1/5th share in the plaint schedule properties; the 1st plaintiff is entitled to Ac.1.20 cents and 2nd plaintiff is entitled to Ac.0.14 cents in Sy.No.637/1 aggregating to Ac.1.34 cents; and the balance share of 2 annas in the well situated in Sy.No.641.1 should be divided equally among 2nd plaintiff and defendant Nos.1 to 4. They alleged that 5th defendant fabricated an agreement to sell allegedly executed by defendant Nos.1 to 4 in his favour without making the 2nd plaintiff as a party to it, then filed O.S.No.41 of 1985 before the Additional District Judge, Hindupur for specific performance of it and obtained a judgment and decree therein; and the said judgment would not bind her.
5. The 1st defendant filed a written statement, which was adopted by defendant Nos.2 to 4 supporting the plaintiffs stating that 5th defendant cannot claim the right of plaintiffs in the properties mentioned in the schedule to O.S.No.41 of 1985 and the judgment in O.S.No.41 of 1985 would not bar the filing of a separate suit by 2nd plaintiff for partition and separate possession of her 1/5th share in the properties of late Nanjaiah.
6. The 5th defendant contended that he was originally a tenant of Nanjaiah under registered lease deed dt.18-09-1976 and was in exclusive possession and enjoyment of the property; that Nanjaiah had filed A.T.C.No.4 of 1980 on the file of District Munsif, Hindupur against 5th defendant for title of the leased properties and for lease amount; during pendency of the said A.T.C, he died and defendant Nos.2 to 4 convened a panchayat through elders and entered into a compromise with 5th defendant, under the terms of said panchayat they agreed to withdraw A.T.C.No.4 of 1980 and sell the properties mentioned in the written statement to 5th defendant for Rs.42,000/- and also received Rs.10,000/- apart from executing an agreement of sale in his favour. He contended that at the time of entering into the said agreement, defendant Nos.1 to 4 specifically informed 5th defendant and the elders that all properties of late Nanjaiah devolved on them only as per their family arrangement; but defendant Nos.1 to 4 did not fulfil their obligation under it; then 5th defendant filed O.S.No.23 of 1983 in Sub Court, Penukonda for specific performance of agreement to sell against defendant Nos.1 to 4; the said suit was subsequently transferred to Additional District Court, Hindupur and renumbered as O.S.No.31 of 1985 and was decreed on 24-03-1986. He further contended that he had deposited the balance of consideration into Court within the time granted and filed E.P.No.11 of 1986 for execution of the sale deed. He also stated that defendant Nos.1 to 4 alone filed I.A.No.489 of 1982 in A.T.C.No.4 of 1980 before the District Munsif Court, Hindupur to implead them as legal representatives of Nanjaiah as all properties of said Nanjaiah had devolved on them and that application also indicates that 2nd plaintiff had no share therein and only defendant Nos.1 to 4 were entitled thereto. He alleged that now defendant Nos.1 to 4 had set up the plaintiffs and got the suit filed collusively. He denied the alleged family arrangement between plaintiffs and Nanjaiah and contended that there is no such family arrangement and the alleged document dt.09-04-1976 itself is invalid. He also contended that 1st plaintiff never enjoyed the property under the alleged family arrangement. He admitted that he filed O.S.No.441 of 1976 before the District Munsif Court, Hindupur for permanent injunction against 1st plaintiff and his son for causing obstruction from using the well water, that the said suit was dismissed and was confirmed in A.S.No.114 of 1974.
7. He also filed 2 additional written statements objecting to the prayer of rendition of accounts and paying of mesne profits.
8. On the basis of the above pleadings, the trial Court framed the following issues and additional issues:
“1. Whether the 1st plaintiff is entitled to the rights under family arrangement as per decree and judgment in O.S.No.441 of 1976 and A.S.No.114 of 1979 as set forth in para-11 of the plaint?
2. Whether D-5 being the plaintiff inO.S.No.441 of 1976 on the file of District Munsif, Hindupur and plaintiff in O.S.No.31 of 1985 on the file of Additional District Judge, Hindupur is estopped to plead to the contrary in his written statement in the present suit?
3. Whether the plaintiffs are in joint possession of the suit schedule property and whether the court fee paid for the relief of partition is correct?
4. Whether D-5 is the sold owner exercising his right in the written statement schedule items of property?
5. Whether plaintiffs are entitled to partition? If so, to what there is respect of that properties?
6. To what relief?
Additional issues dt.01-07-1987:
1. Whether the boundaries given by the plaintiff are correct?
2. Whether the mango trees, the land of the plaintiff and rastha are on the south of S.No.608.3?”
9. Before the trial Court, the plaintiffs examined P.Ws.1 to 5 and marked Exs.A-1 to A-7. The 5th defendant examined D.Ws.1 and 2 and marked Exs.B-1 to B-6. On behalf of defendant Nos.1 to 4, D.W.3 was examined and Exs.B-7 to B-9 were marked.
10. By judgment and decree dt.23-11-1992, the Court below dismissed the suit. It noticed that the alleged family arrangement dt.09-04-1976 was not filed and P.W.1, the
1 st plaintiff, did not advert to it in her evidence while
P.W.3 spoke about its existence and its filing in O.S.No.441 of 1976. It further held that there is no material to show about the enjoyment of extent Ac.1-20 cents of land in Sy.No.637/1 by plaintiffs pursuant to the alleged family arrangement since 1976 and no mutation also appears to have been done in the name of plaintiffs even though 10 years had elapsed by the time of filing of suit. It therefore rejected the contention of plaintiffs that 2nd plaintiff was given Ac.1.20 cents of land in Sy.No.637/1 under the said family arrangement. It held that even though the judgment in O.S.No.441 of 1976 indicates that a family arrangement took place between 1st plaintiff’s father-in-law Nanjaiah, the 2nd plaintiff and others and was marked as Ex.B-4 in that suit, the appendix of evidence does not show the date of this document and there was no discussion about it in the judgment to know the nature of the document. It further held that 5th defendant had filed O.S.No.23 of 1983 and obtained specific performance of the agreement of sale Ex.B-3 dt.25-06- 1982 vide judgment and decree dt.24-03-1986 (Ex.B-4) from the Additional District Court, Hindupur and he also obtained Ex.B-5 registered sale deed on 22-04-1988 from the said Court. In view of the filing of A.T.C.No.4 of 1980 by late Nanjaiah against 5th defendant, it held that 5th defendant alone was in possession and enjoyment of the plaint schedule properties on the date of filing of the suit and the plaintiffs were not in joint possession and enjoyment thereof. It accepted the contention of 5th defendant that only the house property of Nanjaiah was given to plaintiffs while the agricultural lands including the plaint schedule properties were given to defendant Nos.1 to 4. In support of the said finding, it relied on the fact that in A.T.C.No.4 of 1980, after the death of Nanjaiah who had filed it, only defendant Nos.1 to 4 got themselves impleaded and they had not impleaded the
2 nd plaintiff. It also took note of the fact that plaintiffs did not make any attempt to get themselves impleaded in that A.T.C. even though they were aware of it. It further held that late Nanjaiah had also a son through 1st defendant, who had died unmarried, and if his share is taken into account, the share of 2nd plaintiff would only be Ac.0.45 cents of land out of the plaint schedule properties and the house given to 2nd plaintiff would be more valuable than it. It therefore dismissed the suit.
11. Challenging the same, the present appeal is filed.
12. Heard the learned counsel for appellants Sri T.C.D.Sekhar. Respondent Nos.1 to 3 in the appeal have been served. The 4th respondent had died and his legal representatives have been impleaded as respondent Nos.5 and 6. Although they have been served, there is no representation on their behalf.
13. The learned counsel for appellants/plaintiffs contends that a family arrangement took place between Nanjaiah, plaintiffs and defendants 1 to 4 on 09-04-1976 in which the plaintiffs got Ac.1-20 cents in Sy.No.637/1 apart from 6 annas joint right in the well situated in Sy.No.641/1 along with right in pump room and pump set; that 5th defendant played fraud on defendant Nos.1 to 4 and obtained agreement of sale dt.25-06-1982 from defendant Nos.1 to 4; that he filed O.S.No.31 of 1985 before the Additional District Judge, Hindupur for specific performance of the said agreement of sale and obtained Ex.B-4 decree dt.24- 03-1986 in respect of the plaint schedule properties and also obtained Ex.B-5 registered sale deed on 22- 04-1988; the plaintiffs are entitled to Ac.1.20 cents in item No.1 of the plaint schedule under the family arrangement which has been accepted by defendant Nos.1 to 4; although the said document was reduced into writing and was filed in O.S.No.441 of 1976 filed by 5th defendant against 1st plaintiff, by over sight it was not filed in the present suit; the same has now been made available to plaintiffs and they may be permitted to file the same as well as other documents. He prayed to set aside the judgment of the trial Court and remit the matter back to it for fresh trial.
Alternatively, he also contended that the said document may be received as additional evidence in this appeal and considered by this Court.
14. It is true that there is a reference to a family arrangement in O.S.No.441 of 1976 in the appendix of evidence as Ex.B-4, but the date of the said document is not mentioned there and the said document itself was not considered in the judgment Ex.A-5 dt.30-04-1979 in O.S.No.441 of 1976. The said suit had been filed by 5th defendant against 1st plaintiff and his son for a perpetual injunction in respect of his right to draw water from the well. The said suit was dismissed on 30-04- 1979 and was confirmed in A.S.No.114 of 1979. So it is doubtful whether the family arrangement referred to in the judgment in O.S.No.441 of 1976 is the same family arrangement dt.09-04-1976 claimed by plaintiffs. No reason is assigned by appellants as to why they could not file the said document in the trial Court. In fact, no application to receive the said document as additional evidence has been filed and only an oral request is made at the time of arguments to receive the said document. In this view of the matter, I am not inclined to receive the said document and consider it in the appeal.
15. There is no dispute that 5th defendant had filed O.S.No.31 of 1985 against defendant Nos.1 to 4 on the basis of agreement of sale Ex.B-3 dt.25-06-1982 executed by them in his favour and obtained a decree Ex.B-4 dt.24-03-1986 therein from the Additional District Judge, Hindupur and also secured a registered sale deed Ex.B-5 dt.22-04-1988 through Court. According to 5th defendant, the said agreement of sale had been executed during pendency of A.T.C.No.4 of 1980 filed before the District Munsif, Hindupur against him by late Nanjaiah, by defendant Nos.1 to 4 and they had agreed to sell the properties mentioned therein to him for Rs.42,000/- and even received an advance of Rs.10,000/-. According to him, they had specifically told the 5th defendant and the elders who mediated at that time that all the properties of late Nanjaiah had devolved only on them as per their family arrangement. The fact that Nanjaiah died during pendency of A.T.C.No.4 of 1980 and that only defendant Nos.1 to 4 got themselves impleaded by filing I.A.No.489 of 1982 therein is not disputed. The plaintiffs made no attempt to implead themselves in the said A.T.C. If really 2nd plaintiff had any share in the plaint schedule properties, the plaintiffs would not have kept quiet and would have got themselves impleaded in A.T.C.No.4 of 1980.
P.W.1 in his cross-examination admitted that one Narasimhappa is looking after A.T.C.No.4 of 1980 and thus, the plaintiffs had knowledge of A.T.C.No.4 of 1980. There is no dispute that plaintiffs were enjoying the house given to them by late Nanjaiah. It is possible that 2nd plaintiff was given a house by late Nanjaiah in lieu of her share in other properties and that was why defendant Nos.1 to 4 did not mention her as a co-owner when they executed the agreement of sale dt.25-06- 1982 in favour of 5th defendant. It is possible that 2nd plaintiff did not get impleaded in ATC also because of this.
16. Admittedly, Ex.B-7 Will executed by late Nanjaiah indicates that he had a son who died at the age of 14 years and if his share is also taken into account, then the share of 2nd plaintiff would be only Ac.0.45 cents whereas the house property given to her is much more valuable as rightly held by trial Court.
17. If really the 2nd plaintiff had been given Ac.1.20 cents of land in 1976 by Nanjaiah, the revenue records such as adangals would show her possession and enjoyment of the same, but except oral assertions of P.Ws.1 to 3 of such enjoyment, no revenue records are filed to prove her enjoyment. The 2nd plaintiff has also not been able to show that there has been mutation in the revenue records of her name. If really 2nd plaintiff had been given Ac.1.20 cents of land in Sy.No.637/1 in 1976, by the date of filing of suit in 1976, her name would have been mutated in revenue records and her possession would be recorded therein. No land revenue receipt had also been filed by plaintiffs to prove their possession of this extent of land.
18. In this view of the matter, I am of the opinion that the trial Court had rightly come to the conclusion that 2nd plaintiff had no right or title in Ac.1.20 cents in Sy.No.637/1 under any family arrangement or otherwise.
19. It is settled law that a remand is not to be ordered to facilitate a party to fill up lacuna in his evidence. Since no valid explanation for not filing the family arrangement or revenue records have been furnished by appellants, I am not inclined to remand the matter to the trial Court to give a fresh opportunity to them to do so.
20. I therefore do not find any merit in the appeal and is accordingly dismissed. No costs.
21. As a sequel, miscellaneous applications, if any pending, shall stand closed.
JUSTICE M.S. RAMACHANDRA RAO Date: 14-07-2014
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