IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE FOURTEENTH DAY OF SEPTEMBER TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Second Appeal No.895 of 2007 Between: Voruganti Anthaiah .. Appellant AND Voruganti Venkaiah and others .. Respondents JUDGMENT: The second appeal is directed against the judgment and decree in A.S. No.43 of 2004 on the file of the II Additional District Judge, Nalgonda at Suryapet, dated 30-04-2007, by which the appeal was dismissed without costs and the judgment and decree in O.S. No.54 of 1997 on the file of the Senior Civil Judge’s Court, Suryapet, dated 27-01-2003 dismissing the suit without costs were confirmed. The parties are referred to herein as they are arrayed before the trial Court. The plaintiff filed the suit for partition of the plaint schedule properties between him and defendants 1 and 2 and allotment and possession of one-third share to him and for costs. The plaintiff claimed that his father Voruganti Veeraiah purchased plaint A schedule agricultural lands and developed plaint B schedule house property from out of the income from the joint family business and expired in 1982, while he was ‘Kartha’ of the joint family consisting of himself, the plaintiff and defendants 1 and 2. The mother of the plaintiff, two daughters and sons of the second daughter of Veeraiah were also left behind by Veeraiah. But at the time of marriages of the three daughters, sufficient properties were given by Veeraiah as ‘pasupu kumkuma’ exceeding their legal shares in the family properties. The undivided one-fourth share of the plaintiff’s father and the entire gold jewellery, etc., were given away by Veeraiah during his life time and the mother of the plaintiff sold Ac.0.10 guntas of land in survey No.522 to the first daughter’s son. The 14 tulas of gold and Ac.0.10 guntas of land given to the mother was more than one-seventh share out of one-fourth share of the father and therefore, the plaintiff and defendants 1 and 2 alone are entitled to one-third share each out of plaint A and B schedule properties. The plaintiff claimed that the plaintiff and defendants 1 and 2 are residing in separate portions in plaint B schedule house property and are enjoying their respective shares in plaint A schedule property separately, but without any partition by metes and bounds. Therefore, the plaintiff filed the suit for partition. Defendants 1 and 2 contested the suit contending that the very admission by the plaintiff about separate possession and enjoyment of their respective shares left no cause of action for filing the suit. The partition between the father, the plaintiff and defendants 1 and 2 was effected in 1970 since when the parties are enjoying their respective shares. The suit was improperly valued, was barred by limitation and was vitiated by non-joinder of necessary and proper parties due to not impleading the mother, the daughters and the deceased daughter’s children. Defendants 1 and 2 claimed that in the partition in 1970, Veeraiah got Ac.2.00 in survey No.522 and the land in survey Nos.533 and 538. The plaintiff and defendants 1 and 2 got Ac.2.02 guntas each in survey No.522 and also equal extents in survey Nos.536, 534 and 535. The house property was also divided into equal shares and defendants 1 and 2 and the plaintiff got two rooms each, while Veeraiah got the remaining three rooms. Separate house numbers were allotted to the respective portions after partition and the mother sold Ac.0.10 guntas of land to Santhosh after partition. Santhosh filed O.S. No.1153 of 1984 on the file of the District Munsif’s Court, Suryapet to protect his possession against interference, in which the earlier partition was specifically pleaded. Similarly, the mother of the plaintiff Lakshmamma filed O.S. No.685 of 1985 before the same Court for a permanent injunction against the plaintiff and others again pleading the earlier partition. The names of the sharers were specified as possessors of the respective properties in the pahanies and ryotwari pass books were separately issued and property tax and land revenue were separately paid. Defendants 1 and 2, therefore, desired the suit to fail. Defendants 3 to 10 were subsequently impleaded as per orders on I.A. No.74 of 2001, dated 04-04-2001 and the 10th defendant also had taken up a similar defence, which was adopted by defendants 3 and 4. On such pleadings, the trial Court framed the following issues and additional issues for trial: 1. Whether there was partition among the plaintiff, defendants and their father in 1970 ? 2. Whether the suit is bad for non-joinder of necessary parties ? 3. Whether there is no cause of action for the suit ? 4. Whether the plaintiff is entitled for partition and separate possession of his alleged 1/3rd share in the suit properties ? 5. To what relief ? Additional issues: 1. Whether the plaintiff got 1/4th share of the father out of A and B schedule properties ? 2. Whether the plaintiff got 1/7th share of defendant No.4 and mother of D-5 to D-10 ? 3. Whether the suit is barred by limitation ? 4. To what relief ? During trial, P.Ws.1 to 5 and D.Ws.1 to 7 were examined and Exs.A.1, A.2, B.1 to B.33 and C.1 to C.12 were marked. The trial Court in its judgment, while holding that the plaintiff had cause of action to sue for partition, as his demand for partition was not accepted by others, also concluded that the suit was not barred by limitation, as the plaintiff was not pleaded to have been ousted from the joint family property altogether. The trial Court also concluded that though defendants 3 to 10 were impleaded subsequently, the plaintiff did not take steps to implead P. Santhosh, purchaser of Ac.0.10 guntas of land from Lakshmamma, the mother of the plaintiff, due to which the suit should be considered to be bad for non-joinder of necessary party. The trial Court also considered the burden of proving the earlier partition to be on defendants 1 and 2 and on the analysis of the oral and documentary evidence, considered defendants 1 and 2 to have succeeded in proving such partition in 1970. While considering the conflicting pleadings about the share of Veeraiah in the properties, the trial Court left it open to the plaintiff to file a separate suit for partition of his father’s share and declined to decide the same in this suit. Accordingly, the suit was dismissed without costs. In appeal, the impugned judgment was rendered by the first appellate Court again referring to the rival pleadings, contentions and evidence as well as the conclusions of the trial Court and the challenge by the plaintiff to the same. The first appellate Court considered whether the conclusions of the trial Court were right and found that the plaintiff himself admitted that he, his brothers and others were in separate possession and enjoyment of their respective properties. The assertion of the mother about the earlier partition and the issuance of separate pattadar pass books and separate payment of house taxes and land revenue were also noted and the sale of Ac.0.10 guntas of land by Lakshmamma to Santhosh, which was the subject of O.S. No.1153 of 1984, was also considered. The filing of O.S. No.685 of 1985 by Lakshmamma and the entries in Exs.B.1 to B.13 pahanies, which were undisputed, were considered to be probablising the division of the properties between the parties and their separate possession and enjoyment. The first appellate Court further observed that the plaintiff was silent without denying the earlier partition in 1970 in spite of mutation in the revenue records and separate collection of land revenue and house taxes. The first appellate Court further noted construction of separate lavatories for the respective portions and the advocate commissioner’s report disclosing the division and separate living by metes and bounds. The evidence of a neighbour-D.W.7 about his presence at the time of partition was also relied on and non-production of the document of partition said to have been executed during the life time of Veeraiah, was ignored, as the document was stated to be not traced. The first appellate Court consequently agreed on all the findings of fact with the trial Court and dismissed the appeal without costs. The plaintiff is before this Court with the second appeal against the said judgment contending that defendants 1 and 2 never specified the metes and bounds of the respective shares and the defendants failed to establish by direct or circumstantial evidence, the alleged partition in 1970. The fact that the plaintiff and defendants 1 and 2 were living separately, was for better living and not because of any final partition and there was no admission of the earlier partition by the plaintiff in the earlier two suits. The validity of the sale in favour of Santhosh was wrongly upheld and even if he had purchased Ac.0.10 guntas of land, his non- impleadment would not have affected the suit for partition. The plaintiff, therefore, contended that substantial questions of law arise about any separate enjoyment amounting to partition without any evidence of partition or mere entries in the pahanies indicating any partition by metes and bounds. Questions also arise about unjustified rejection of the evidence of P.Ws.1 to 5 and the adverse impact of non-production of the document for partition. The plaintiff could not have been referred to separate suit concerning the share of Veeraiah and hence, the appellant desired the impugned judgment and decree to be reversed. The second appeal was admitted on the following substantial questions of law: 1. Whether separate enjoyment of the joint family property for the sake of convenience constitutes partition in the eye of law without partition by metes and bounds ? 2. Whether the entries in the pahanies constitute partition without metes and bounds when the names of the parties are reflected in the pahanies ? 3. Whether there is any perversity in the judgments of the Courts below ? Sri A. Satyaprasad, learned senior counsel and Sri L.V.S. Naga Raju, learned counsel for the appellant and Sri V.V.N. Narayana Rao, learned counsel for the 2nd respondent, are heard. While the 3rd respondent is no more, respondents 4 to 10 were stated to be not necessary parties to the second appeal and none entered appearance on behalf of the 1st respondent. The points for consideration in the second appeal are the three substantial questions of law formulated at the time of its admission. Apart from the interested evidence of P.W.1, the plaintiff himself, four witnesses were examined on his behalf. P.W.2, who claimed to be having land near the suit land, himself stated about the plaintiff and defendants 1 and 2 enjoying the suit land separately as shown by their father, while being ignorant as to whether there was any division by metes and bounds. P.W.2 stated the separate cultivation of the lands to be since 30 years and he was also unaware whether the father took a share for himself and whether payment of land revenue was also separate. The sale of some land by the mother to the grand son was also stated by P.W.2 who was unaware of separate allotment of door numbers to the respective portions of the house under the possession of the parties. The witness was also unaware as to whether the father’s share was being cultivated by the mother after the death of the father about 18 years earlier and even he was ignorant as to whether the father during his life partitioned the lands by metes and bounds between the brothers and whether mutation was also effected. Accordingly, he cannot be considered to have corroborated the plaintiff on any relevant aspect and during cross-examination, he even admitted ignorance about any demand by the plaintiff at any time for partition, contrary to his chief-examination. P.W.3 claimed the suit lands to be in joint possession and not partitioned, but had to admit the separate cultivation of the lands since 15 to 20 years. The witness also admitted that the mother was cultivating the land of the father after the father’s death and he was also aware of the suit filed by Santhosh against the interference with his possession of some land. The witness was unaware of the mutation of the names of the parties separately and also admitted that defendants 1 and 2 were cultivating their respective lands through lessees and farm servants respectively. P.W.4 was a former Sarpanch of the village like the father of the plaintiff and he stated about Veeraiah retaining two rooms for himself and giving one room each to his sons in the house property. He also stated about Lakshmamma residing in the two rooms retained by Veeraiah and he further stated about Veeraiah retaining Ac.2.00 of wet land and Ac.2.00 of dry land and giving the remaining land to his sons who were cultivating the lands separately. The witness was unaware of any partition between the father and the sons about 30 years earlier and their getting specified lands in that partition. He was also unaware of O.S. Ns.1153 of 1984 by Santhosh or O.S. No.685 of 1985 by Lakshmamma. P.W.5 also stated about separate cultivation of the respective shares by the three sons of Veeraiah, who are living in separate houses and he was unaware whether partition was effected about 30 years earlier. Apart from the probability of P.Ws.3 and 5 being very young by the time of the alleged partition between the parties, the evidence of P.Ws.2 to 5 itself was, thus, very clear that there was separate enjoyment of their respective portions in the suit house and the respective extents in the agricultural land of the family by the father and the sons on a division made by the father and the evidence of the plaintiff as P.W.1 in reiteration of his claims in the suit cannot be considered corroborated by P.Ws.2 to 5 about the absence of any partition by such division. Even P.W.1 had to admit during his cross- examination that separate house numbers were allotted for the respective portions of the house under their respective occupation and that Ac.0.10 guntas of land was sold by Lakshmamma to Santhosh. The suit by Santhosh and the suit by Lakshmamma were also admitted. Separate payment of land revenue was admitted. Individual payment of house tax was admitted. Issuance of separate title deeds and pattadar pass books was admitted and the plaintiff himself claimed to have developed his wet land by levelling the same. The manner in which the house and the agricultural properties are enjoyed even according to the admissions of the plaintiff, thus, does not run consistent with the absence of any partition by metes and bounds keeping in view the ordinary and natural course of human events and conduct in such cases. The 2nd defendant as D.W.1 in reiteration of the defence version, claimed an earlier partition and possession of his father’s share with his mother. He referred to the two earlier suits and though he claimed that a partition list was prepared at the time of the partition, signed by all the sharers and prepared by his father, he was unaware as to what happened to that list and he claimed that list to have not been handed over after the death of their father. There is nothing unnatural in such a partition list being in the custody of the father during his life and the sons being unaware of the whereabouts of that list, given the rural setting of the family. The claims of D.W.1 are supported by D.W.2 who claimed to have been a witness for the partition and his claims were attempted to be supported by the other witnesses for the defendants including the advocate commissioner who noted the extent of the house property in the respective possession of the parties. While any further analysis of the evidence of D.Ws.1 to 7 becomes unnecessary in the light of the absence of proof of the claims of the plaintiff, even prima facie, by the evidence of P.Ws.1 to 5, the two documents filed by the plaintiff, Exs.A.1 and A.2, pale into insignificance in the light of the certified copies of pahanies Exs.B.1 to B.13, the land revenue receipts, title deeds, ryotwari pass books and copies of the proceedings relating to the two earlier suits, etc., marked as Exs.B.14 to B.33. The mutation of the names of the parties in the revenue records, specification of separate possession in the pahanies, separate payment of land revenue and house taxes, assignment of separate door numbers to the respective portions, etc., coupled with the assertion about the earlier partition in O.S. No.1153 of 1984 and O.S. No.685 of 1985, which was not contradicted by the plaintiff at that point of time, do not run consistent with any understanding of the earlier division as a mere separation for convenient enjoyment and not a final partition by metes and bounds. If there was earlier partition by metes and bounds, the failure of the plaintiff in the suit for partition cannot be considered to be inappropriate or unreasonable. The conclusion about the earlier partition arrived at by the trial Court and the first appellate Court was not merely on the basis of the entries in the pahanies or mere separate possession and enjoyment of their respective shares by the brothers, but on the cumulative effect of broad human probabilities arising out of the evidence on record and the said conclusions cannot be considered to be perverse. The learned senior counsel Sri Satya Prasad referred to certain precedents like State of Himachal Pradesh and others v. Thakur Gian Singh and others[1], wherein the Apex Court held that when the directions in the impugned judgment become infructuous, the High Court had to decide the appeal before it on merits. This was with reference to the directions given giving liberty to the plaintiff to file a fresh suit for partition of his father’s share. As O.S. No.146 of 2008 was already filed by the plaintiff in respect of the properties said to be gifted by the mother from out of the father’s share, the necessity for the same being decided in this appeal itself without referring the parties to that suit also does not arise. The learned senior counsel also relied on Dr. K. Ashok Reddy v. K. Ramchandra Reddy and another[2], wherein a learned Judge of this Court concluded that a partition cannot be inferred on the basis of the entries in the revenue records. The principle is unexceptionable, but the question herein is not concluded by any of the Courts only on the basis of entries in the revenue records, but on the entries in the revenue records being taken as one of the circumstances probablising the partition relied on by defendants 1 and 2. Even the learned Judge had noted that a partition can give rise to the entries in the revenue records and the said decision is, thus, of no avail to the plaintiff. Similarly, in Phoolchand and another v. Gopal Lal[3], the Apex Court was dealing with a question of the competence of the Court to effect variation in the shares on the basis of an event which transpires after the preliminary decree, which necessitates a change in the shares. This decision was referred to with reference to the death of Lakshmamma on 19-05-2007 subsequent to disposal of the first appeal and before filing of the second appeal, which had to be taken into account in working out the rights of the parties concerning the share of the father. While the respective shares of the plaintiff and defendants 1 and 2 in their respective enjoyment as per the earlier partition cannot be the subject of any disturbance in the second appeal in the light of the findings of fact arrived at earlier, the direction of the Courts below regarding the reference of the plaintiff to a separate suit concerning the father’s share of the properties needs to be moulded appropriately with reference to the subsequent event of the death of Lakshmamma after the first appeal and before the second appeal. According to the contentions of the parties, the father Veeraiah was given Ac.2.00 in survey No.522 and Ac.0.12 guntas in survey No.538 and the mother Lakshmamma was given Ac.1.01 gunta in survey No.533. The said property admittedly came into the possession of Lakshsmamma after the death of the father and out of the said property, Ac.1.30 guntas in survey No.522 and Ac.1.01 gunta in survey No.533 were the subject of the registered gift deed, which was challenged by the plaintiff in O.S. No.146 of 2008 on the file of the Junior Civil Judge’s Court, Suryapet. Ac.0.10 guntas were sold by Lakshmamma to Santhosh in survey No.522 and as Santhosh is not a party to this suit and as assertion of his rights due to his purchase was already upheld in O.S. No.1153 of 1984, the same cannot be the subject of any re- adjudication herein. In O.S. No.146 of 2008, the plaintiff herein claimed that the registered gift deed executed by Lakshmamma and any consequential documents are null and void and not binding on the plaintiff concerning his rights of ownership, possession and enjoyment of the properties covered by them. That suit is admittedly pending adjudication. Thus, out of the properties of the father and mother, Ac.0.12 guntas in survey No.538 of the father remained not covered by any document or any pending or decided suit other than this suit. If the father and mother died intestate and this property is left, these Ac.0.12 guntas in survey No.538 have to be subjected to partition between the heirs of Veeraiah and Lakshmamma. Therefore, while affirming the judgments of the Courts below, a preliminary decree has to be passed for partition in respect of Ac.0.12 guntas in survey No.538 and it has to be clarified that the subject matter of O.S. No.146 of 2008 shall be determined by the civil Court on its own merits in accordance with law, uninfluenced by the proceedings arising out of the present suit O.S. No.54 of 1997 up to the second appeal. Such a clarification is necessary, as the copy of the plaint in O.S. No.146 of 2008 furnished by the appellant herein shows that the plaintiff proceeded on the footing that the properties in the possession of Lakshmamma were those given to Veeraiah and Veeraiah died intestate. As the plaintiff himself proceeded on the assumption of the properties belonging to Veeraiah in O.S. No.146 of 2008, the issues arising in that suit have to be, thus, considered and decided independently on the evidence to be placed before the civil Court by the parties in that litigation. Accordingly, the judgment and decree in A.S. No.43 of 2004 on the file of the II Additional District Judge’s Court, Nalgonda at Suryapet, dated 30-04-2007 confirming the judgment and decree in O.S. No.54 of 1997 on the file of the Senior Civil Judge’s Court, Suryapet, dated 27-01-2003 are confirmed. But in the light of the death of the 3rd defendant to the suit on 19-05-2007 subsequent to the judgment and decree of the first appellate Court and before the institution of the second appeal, the extent of Ac.0.12 guntas in survey No.538 of Thungathurthy, which was the subject matter of the suit, be partitioned between the legal heirs of Voruganti Veeraiah and Lakshmamma, who are already parties to the suit, in accordance with their personal law, on an appropriate application filed for passing of a final decree in that regard by any of the parties to the suit entitled to a share in that property. The subject matter of O.S. No.146 of 2008 on the file of the Junior Civil Judge’s Court at Suryapet shall be dealt with and determined by the civil Court on its own merits in accordance with law, uninfluenced by the proceedings arising out of the present suit in O.S. No.54 of 1997 up to