THE HON’BLE SRI JUSTICE M.S.RAMACHANDRA RAO SECOND APPEAL No.553 of 2013 Date : 13-08-2014 Between :
1. D.Obilesu (Died) and others. …. Appellants.
And
1. D.Narayana Reddy and others. …. Respondents.
Counsel for appellants : Sri K.Maheswara Rao Counsel for respondents : - NA-
This Court delivered the following:
THE HON’BLE SRI JUSTICE M.S.RAMACHANDRA RAO SECOND APPEAL No.553 of 2013 JUDGMENT:
This Second Appeal is filed challenging the judgment and decree dt.08-08-2012 in A.S.No.9 of 2007 of the Senior Civil Judge, Penukonda confirming the judgment and decree dt.13- 07-2007 in O.S.No.135 of 1998 of the Junior Civil Judge, Dharmavaram.
2. The appellants herein are plaintiffs in the suit. They filed the suit partition and separate possession of 1/9th share in the plaint schedule properties and for costs.
3. According to plaintiffs, one Narappagari Narayanappa is the common ancestor of plaintiff Nos.1, 2 and defendants; he had three sons by name Peddanna, Nadipi Narappa and Gorla Narappa; they all constitute a Hindu joint family and the plaint schedule property was ancestral joint family property of these persons. They contended that Narappagari Nayanappa and his three sons died intestate without partition of the plaint schedule property; each of the sons of Narappagari Narayanappa had 1/3rd joint share in the plaint schedule property; plaintiff Nos.1 and 2 and husband of 4th defendant were sons of Nadipi Narappa and succeeded to his 1/3rd share in the plaint schedule property; father of defendant Nos.1 and 2 and 3rd defendant are the sons of late Peddanna and they succeeded to his 1/3rd joint share in the joint family property; and 5th defendant being the son of Gorla Narappa succeeded to his 1/3rd share in the plaint schedule property. They contended that 1st plaintiff died intestate leaving plaintiff Nos.3 and 4 and five daughters, that plaintiff Nos.3 and 4 are managing the affairs of this property and therefore they are entitled to represent the deceased 1st plaintiff and to take 1/9th share therein.
4. The 5th defendant filed written statement which was adopted by defendant Nos.1, 2 and 3. He set up a plea that the sons of Narayanappa partitioned their ancestral properties among them during their life time more than 30 to 40 years back orally and since then onwards they have enjoyed their respective shares. He alleged that the plaintiffs and defendants are not on good terms and so the plaintiffs have opted for this type of vexatious litigation. He alleged that item Nos.1 and 2 of the plaint schedule fell to the share of defendant Nos.1 to 3 and 5th defendant’s fathers, and after division, defendant Nos.1 to 3 and 5 were enjoying their respective shares exclusively to the knowledge of plaintiffs and everybody; as far as item No.3 is concerned, they alleged that it fell to the share of defendants as well as plaintiffs and was being enjoyed in separate plots by them; there were other properties which were not included in the plaint schedule; and since already a partition took place between the fathers of plaintiffs, defendants and father-in-law of 4th defendant, there is no question of a fresh partition.
5. The 4th defendant filed another written statement also stating that there was a prior partition, and supported the stand of 5th defendant.
6. The following issues are framed by the trial Court:
“1. Whether the plaintiffs are entitled for partition and separate possession of 1/9th share each in the suit schedule property as prayed for?
2. To what relief?”
7. The 2nd plaintiff examined himself as P.W.1 and 4th plaintiff was examined as P.W.2. Ex.A-1 was marked on behalf of plaintiffs. The defendants examined D.Ws.1 and 2 and marked Exs.B-1 to B-19.
8. By judgment and decree dt.13-07-2007, the trial Court dismissed the suit holding that the defendants had established that there was a prior partition of the properties by relying on the evidence of D.W.2 and the documentary evidence in the form of Exs.B-14 to B-18 which indicated exclusive possession and enjoyment of defendants over the plaint schedule properties.
9. This was questioned in A.S.No.9 of 2007 by plaintiff. By judgment and decree dt.08-08-2012, the said appeal was also dismissed confirming the findings of the trial Court.
10. Aggrieved thereby this Second Appeal is filed.
11. Heard Sri K.Maheswara Rao, learned counsel for appellants.
12. The principal contention of the learned counsel for appellants is that there is no evidence to prove the partition by metes and bounds and that the entries in Revenue records, not being conclusive proof of ownership of the properties, the finding that there was a prior partition by both the Courts below cannot be accepted.
13. I am unable to accede to this contention. D.W.2, a resident of Pothulanagepalli village stated that he was present at the time of partition between Peddanna, Nadipi Narappa and Gorla Narappa about 50 years back and that in the said partition item Nos.1 and 2 of the plaint schedule fell to the share of Peddanna and Gorla Narappa and item No.3 fell to the share of Peddanna, Nadipinarappa and Gorla Narappa and their sons are enjoying the shares of their fathers. His evidence is corroborated by the evidence of D.W.1. Ex.B-1 certified copy of 10(1) extract shows that Sy.Nos.127, 130 and Sy.No.157/1 and even Sy.No.310/2 stands in the name of Narayanappagari Narappa. Ex.B-2 certified copy of adangal for faslis 1398, 1399 and 1400 shows that the schedule land with various extents stand in the names of Narayanappagari Narappa, Obulesu and Anjineyulu and defendants in the suit. It does not show that plaintiffs are in possession and enjoyment of the land. Ex.B-3 is the registered sale deed dt.26-09-1928 under which N.Narappa and Gorla Narappa purchased land in Sy.No.150/1. Ex.B-4 is the certified copy of the registered sale deed dt.1-07-1981 showing that Narappa sold an extent of Ac.2.79 cents in Sy.No.150. Ex.B-5 shows that on 14-06-1993 Sriramulu sold land in Sy.No.101/1 to others. Ex.B- 6 gift deed dt.13-07-2004 shows that 5th defendant gifted the land of extent Ac.2.69 cents in Sy.No.150/1D, Ac.2.77 cents in Sy.No.159/3, Ac.1.53 cents in Sy.No.154/4 and Ac.0.99 cents in Sy.No.155/6 and other lands to one G.Subbi Reddy. Ex.B-7 Ryotwari pass book shows the lands standing in the name of Narayanappagiri Narappa;
Exs.B-14 to B-18 pattadar pass books show enjoyment by various parties including defendants and cist receipts Exs.B-9, B-10, B-11 and B-13 also suggest that each of the parties to the suit and their fathers were in possession and enjoyment of the properties separately. Both Courts, in my opinion, rightly relied on the evidence of D.Ws.1 and 2 and the above ‘B’ series exhibits which proves separate possession and enjoyment of the properties by the respective parties thus establishing prior oral partition. The findings on the facts by both the Courts below have been rendered on consideration of oral and documentary evidence on record and cannot be said to be perverse.
14. Therefore, I do not find any question of law much less substantial question of law for consideration in the appeal.
The Second Appeal is accordingly dismissed at the stage of admission. No costs.
15. As a sequel, the miscellaneous petitions, if any pending, shall stand closed.
JUSTICE M.S.RAMACHANDRA RAO Date : 13-08-2014 Vsv