HON’BLE SRI JUSTICE M.S.RAMACHANDRA RAO SECOND APPEAL No.363 of 2014 Date : 14-07-2014 Between :
1. Veerapuram Narasimhulu and others …. Appellants.
And
1. Veerapuram Chennappa (Died) and others. …. Respondents.
Counsel for the appellants : Sri M.Vidyasagar Counsel for respondents : --
This Court delivered the following:
HON’BLE SRI JUSTICE M.S.RAMACHANDRA RAO SECOND APPEAL No.363 of 2014.
JUDGMENT:
This appeal is filed challenging the judgment and decree dt.24-01-2014 of the Judge, Family Court-cum-VIII Additional District and Sessions Judge, FAC II Additional District and Sessions Judge, Mahabubnagar in A.S.No.88 of 2010, confirming the judgment and decree dt.18-08-2010 in O.S.No.252 of 2006 of the Senior Civil Judge, Mahabubnagar.
2. The appellants are plaintiffs in the suit. They filed the suit partition and separate possession of their 20/21st share in the plaint schedule properties.
3. One Gajjalaiah had 5 sons. The 1st defendant is the son of Pedda Sayanna, one of the sons of Gajjalaiah. Gajjalaiah had another son by name Chinna Sayanna, whose wife was Pedda Kistamma. The 1st plaintiff is son of Gandappa another son of Gajjalaiah. Plaintiff Nos.2 to 7 are sons of 1st defendant. Plaintiff Nos.8 and 9 are sons of Chinnaih , another son of Gajjaliah. Plaintiff Nos. Nos.10 to 12 are wife and sons of Chennaiah, another son of Chinniah.
4. The plaintiffs contended that the plaint schedule properties are in possession and enjoyment of defendant Nos.2 to 10; but these properties have been acquired by the 5 sons of Gajjalaiah and were shown in the name of Chinna Sayanna and his wife Pedda Kistamma; on the death of Chinna Sayanna and Pedda Kistamma, the plaintiffs would be entitled to 20/21 share therein.
5. The 1st defendant filed a written statement supporting the plaintiffs.
6. The defendant Nos.2 to 10 filed written statement and contended that Gajjalaiah had no property and there was no joint Hindu undivided family as claimed by plaintiffs; that sons of Gajjalaiah had never acquired any agricultural land, more so in the name of Chinna Sayanna and his wife Pedda Kistamma; that the said plea is contrary to the Benami Transaction (Prohibition) Act,1988. They pleaded that Chinna Sayanna and his wife Kistamma had no children and so they adopted 3rd defendant, who is son of younger sister of Pedda Kistamma by name Chinna Kistamma; that 2nd defendant is the daughter of Pyata Pedda Chinnaiah, brother of Pedda Kistamma; and she was brought up by Pedda Kistamma and got married to 3rd defendant. They contended that the extent of Ac.5.00 gts. in Sy.No.69/1 originally belong to one Mohd. Haneef and he sold Ac.1-27 gts each to Pyta Pedda Chinnaiah( husband of 10th defendant), 7th defendant and 3rd defendant through a private sale deed which was validated under Ex.B-1; that Pedda Kistamma had executed Ex.B-2 gift deed dt.25-11-1983 settling extent A.3.08 gts in Sy.No.69/2 in favour of 2nd defendant; an extent of Ac.3.08 gts in Sy.No.69/2 was sold to 7th defendant by Mogulan Sab; that another extent of Ac.3.08 cents was sold in favour of husband of 10th defendant by the said Mogulan Sab; and that plaintiffs and 1st defendant had no concern with the extent of Ac.9.25 gts of land in Sy.No.69/2 shown in plaint ‘A’ schedule. They also stated that Mogulan Sab sold Ac.0.25 gts in Sy.No.71 in favour of Pedda Kistamma, which was also gifted by her to 2nd defendant under Ex.B-2 registered gift deed dt.25-11-1983; that he also sold Ac. 0.25 gts each in favour of 10th defendant and 7th defendant; that ‘B’ schedule properties in Sy.No.2 were gifted by Pedda Kistamma to 2nd defendant under Ex.B-2 registered gift deed dt.25-11-1983 and were given sub-Division No.2/1/B after mutation in the revenue records. Chinna Kistamma, w/o.Somanna had purchased Ac.1.05 gts from Chakali Shankaraiah and others and she also purchased Ac.0.38 gts in Sy.No.2 and her name is recorded as pattedar in the revenue records. They contended that ‘C’ schedule properties were also purchased by 7th defendant who later sold to 3rd defendant through registered sale deed dt.23-12-2002; that original owner of land in Sy.No.407 sold an extent of Ac.0.26 gts in favour of 3rd defendant through a private sale deed dt.15-05-1987, due to which 3rd defendant became the owner of the land to an extent Ac.0.27 gts in Sy.No.407. It is further contended that originally one Md. Mohinuddin Sofi was the owner of land in Sy.No.428 to an extent Ac.1.00 and he sold the same in favour of Pyata Pedda Chinnaiah @ Chinnaiah, S/o.Buchanna and Chinna Sayanna, S/o.Gajjalaiah, each to an extent of Ac.0.20 gts and in turn Pyata Pedda Chinnaiah sold Ac.0.20 gts. in favour of 2nd defendant under a registered sale deed dt.17-05-2002 and the said land was purchased by Chinna Syanna in Sy.No.428 to an extent of Ac.0.20 gts was given to 2nd defendant, which is shown as ‘D’ schedule in the plaint. They further contended that in view of above transactions, they became the absolute owners and possessors of the entire suit schedule properties, in which plaintiffs and 1st defendant have no right and title.
7. On the basis of the above pleadings, the trial Court framed the following issues:
“i) Whether the plaintiffs are entitled to partition and separate possession as prayed for ?
ii) To what relief?”
8. Before the trial Court, the plaintiffs examined P.Ws.1 to 4 and marked Exs.A-1 to A-18. The defendants examined D.Ws.1 to 3 and marked Exs.B-1 to B-11.
9. By judgment and decree dt.18-08-2010, the trial Court dismissed the suit with costs holding that P.W.1 himself admitted that Gajjalaiah had only one house and no other properties; the sons of Gajjaiah were living separately and there was no question of their jointly purchasing the properties with their own funds; that certain properties had been gifted by Pedda Kistamma under Ex.B-2 during her lifetime itself; that plaintiffs had failed to prove that the plaint schedule properties were joint family properties and had been purchased with the joint funds of sons of late Gajjalaiah; that the defendants have filed documentary evidence to show how they have acquired title to the properties and since defendant Nos.2 to 10 were not related to plaintiffs, the plaintiffs could not make a claim for a share in the properties of defendant Nos.2 to 10.
10. Challenging the same, A.S.No.88 of 2010 was filed before the lower appellate court by the plaintiffs.
11. By judgment and decree dt.24-01-2014, the said appeal was also dismissed confirming the findings of the trial Court. The appellate Court held that according to P.W.1, Gajjalaiah had only one house and did not have any other property; that his eldest son Pedda Sayanna died about 30 years back; third son Gandappa migrated to Hyderabad and had no property in his name; and 5th son Chennayya continued to live in the house of Gajjalaiah. When the sons of Gajjalaiah were living separately, it is difficult to understand as to how they could acquire the plaint schedule properties with their joint efforts and there is no sufficient and positive evidence that the plaint schedule properties were acquired by the sons of Gajjalaiah with joint family funds. It therefore held that the plaint schedule properties were acquired by Chinna Sayanna and Pedda Kistamma with their own efforts and under Exs.B-1 to B-3 and B- 11 defendant Nos. 2 to 10 acquired the lands as explained in detail in the written statement.
12. Challenging the same, this Second Appeal is filed.
13. The learned counsel for the appellants contends that the judgments of both the Courts below are erroneous; that the plaint schedule properties should have been held to have been acquired benami in the names of Chinna Sayanna and Pedda Kistamma for the benefit of the joint family of Gajjalaiah and his sons; and that the documents filed by the defendants did not show their right, title or interest in the plaint schedule property.
14. Admittedly late Gajjalaiah had five sons by name Pedda Sayanna, Chinna Sayanna, Chandrappa, Gandaiah and Chinnayya. The plaintiffs contention is that the plaint schedule properties are purchased out of the joint family funds in the name of Chinna Sayanna and his wife Pedda Kistamma and that they are joint family properties. Plaintiffs contend that on 17- 10-2004 Pedda Kistamma, the wife of Chinna Sayanna died issueless leaving plaintiffs 1 to 12 and defendant No.1 as her legal heirs and successors; that defendant Nos.2 to 10 have nothing to do with the plaint schedule property and are in possession thereof illegally; and that they demanded the 1st defendant to partition the plaint schedule properties by metes and bounds and delivered 20/21 share to them. The 1st defendant supported them.
15. The 3rd defendant is the husband of the 2nd defendant and defendants 4 to 6 are the brothers of 3rd defendant. The other defendants are also related to 3rd defendant.
16. The defendants 2 to 10 contended that Gajjalaiah had no property and there is no joint Hindu undivided family as claimed by the plaintiffs. They pleaded that the provisions of the Benami Transaction (Prohibition) Act, 1988 bars a plea by plaintiffs that the plaint schedule properties were acquired in the name of Chinna Sayanna and his wife Pedda Kistamma. They pleaded that the 3rd defendant was adopted by Chinna Sayanna and Pedda Kistamma. They pleaded that they acquired title to the plaint schedule properties under Exs.B-1 to B-11.
17. Since the plaintiffs have raised the plea that the plaint schedule properties are the joint family properties, the burden is on them to prove the said fact. P.W.1 admitted that Gajjalaiah owned only a house and did not have any other properties. Therefore there was no ancestral nucleus which could have financed the purchase of the plaint schedule properties. The plaintiffs pleaded that joint family funds were used to purchase the plaint schedule properties in the names of Chinna Sayanna and Pedda Kistamma. There is no evidence adduced by plaintiffs to establish this fact. In fact P.W.1 admitted that Gandappa migrated to Hyderabad and had no properties in his name while Chinnaiah, another son of Gajjalaiah continued to live in the house of his father though his other brothers left the house and lived separately. When all the sons of Gajjalaiah were living separately, it cannot be presumed that the properties in the name of Chinna Sayanna and his wife were purchased with joint family funds.
18. P.W.1 admitted that Pedda Kistamma had gifted a major portion of her property under a registered gift deed Ex.B-2 to defendant No.2 in 1983 itself. Pahanies Exs.A-1 to A-15 filed by the plaintiffs from 1954-55 to 2002-03 and Ex.A-16, the certified copy of record of rights show possession of the defendants. This is also corroborated by Exs.B-1 to B-11. There is no evidence adduced by plaintiffs to show that the plaint schedule properties were acquired originally by the sons of Gajjalaiah.
19. Therefore in my opinion both the Courts have rightly held that plaintiffs are not entitled to any relief since they failed to establish that the plaint schedule properties are ancestral properties purchased by Gajjalaiah or purchased with joint family funds. There is no question of law much less any substantial question of law arising for consideration in this appeal.
20. Therefore the Second Appeal is dismissed. No costs.
21. Miscellaneous petitions pending, if any, in this appeal shall stand closed.
JUSTICE M.S.RAMACHANDRA RAO Date : 14-07-2014 Vsv/kvr