HON’BLE SRI JUSTICE A. RAMALINGESWARA RAO SECOND APPEAL No.1351 of 2010
Date: July 14, 2014
Between:
1. Kolipaka Salamma & 3 others.
… Petitioners And Kolipaka Vasanth.
… Respondent * * * HON’BLE SRI JUSTICE A. RAMALINGESWARA RAO SECOND APPEAL No.1351 of 2010
O R D E R:
Heard learned counsel for the appellants and learned counsel for the respondent.
2. This second appeal arises out of the judgment and decree in A.S.No.10 of 2008 dated 02.07.2010 passed by the Senior Civil Judge, Asifabad, reversing the judgment and decree dated 03.03.2008 in O.S.No.32 of 2005 on the file of the Junior Civil Judge, Sirpur.
3. The appellants herein are the defendants in the suit. The suit was filed by the respondent for declaration of title and recovery of possession of land in an extent of Ac.6.20 cents in Survey No.97/A situated in Laggam Village of Dahegaon Mandal, Adilabad District.
4. It is the case of the plaintiff that the suit land originally belongs to one Kolipaka Shankaraiah, husband of the first defendant. The plaintiff, defendant No.2 and one Vittal were the sons of said Shankaraiah and during their life time the said Shankaraiah partitioned the properties among them since 20 years back. In accordance with the said partition, the sons are enjoying the properties separately, but the patta was still in the name of Shankaraiah. It is also the case of the plaintiff that the plaintiff got land in Laggam Village and he has been in continuous possession of the same. During the life time of the father of the plaintiff, a document was executed in the year 1993 in token of past partition allotting the shares among three sons and thereafter he died. Based on the said document, the present suit was filed.
5. The 2nd defendant filed a written statement and the same was adopted by defendants 1 and 3. The 4th defendant filed a separate written statement.
6. The relationship of the parties was admitted, but the partition was denied. It was stated that Shankaraiah died in the year 1997 and thereafter in the year 2010 there was a partition of properties among the legal heirs of the deceased and the suit land fell to the share of the first respondent who is the mother of the plaintiff.
7. On the above pleadings, the trial Court framed the following issues:
(1) Whether the plaintiff is entitled for the relief of declaration of title in his favour over the suit property?
(2) Whether the plaintiff is entitled for recovery of possession over the suit property for the defendants?
(3) To what relief?
8. During pendency of the proceedings, defendants 1 to 4 remained ex parte. The trial Court examined Ex.A-1 deed regarding past partition and came to the conclusion that the said document is not a genuine one, as the signatures of neither the 2nd defendant nor the first defendant nor Vittal were found. It was also observed that the document does not have the survey number of any land and the same was kept blank and accordingly the trial Court dismissed the suit.
9. The matter was taken in appeal by the plaintiff. The lower appellate Court observed that it has examined Ex.A-1 document which is dated 16.04.1993 and it apportioned the land. The lower appellate Court came to the conclusion that the plaintiff has discharged his initial burden and it is the duty on the part of the defendants to prove their claim over the suit land by filing a document and also by adducing oral evidence. Without there being any oral or documentary evidence by the defendants, when Ex.A-1 is in existence, it held that the plaintiff suit has to be decreed and accordingly it allowed the appeal. The lower appellate Court noted the existence of Ex.A-1, but it did not give any finding with regard to the validity of Ex.A-1 and whether it is proved by the plaintiff.
10. In the circumstances, the appeal is allowed. The judgment and decree dated 02.07.2010 of the lower appellate Court in A.S.No.10 of 2008 is set aside and the appeal is remanded to the Senior Civil Judge, Asifabad, for disposing of the appeal in accordance with law within a period of three months from the date of receipt of a copy of this judgment. No costs.
A. RAMALINGESWARA RAO, J Date: July 14, 2014 BSB
57 HON’BLE SRI JUSTICE A. RAMALINGESWARA RAO
SECOND APPEAL No.1351 of 2010
Date: July 14, 2014
BSB