THE HON’BLE SRI JUSTICE A.GOPAL REDDY S.A.Nos. 949 and 950 of 2011 COMMON JUDGMENT: Since these two appeals are interconnected with each other and arise out of the common judgment passed in O.S.Nos. 948 of 2004 and 420 of 2005 dated 13.06.2008, by the V Additional Senior Civil Judge (FTC), Vijayawada, they are heard together and disposed of by this common judgment at the stage of admission. Appellant is the defendant in O.S.No.948 of 2004 and the plaintiff in O.S.No.420 of 2005 (Old No.185 of 2001). For the sake of convenience, the parties would be referred to as they are arrayed in O.S.No.948 of 2004. The brief facts of the case are as follows: The respondent herein who is the plaintiff in O.S.No.948 of 2004 filed the said suit for declaration of his title and recovery of possession of the plaint schedule property from the defendant and also for past and future damages stating that he purchased the plaint schedule property under two registered sale deeds dated 31.05.1982 and 31.07.1982 in all measuring 280 square yards and obtained approval of the building plan from the Vijayawada Municipal Corporation. He being a Government Employee, he was not in a position to look after the construction work personally and hence, he entrusted the said work to the defendant by sending money to him for the purpose of construction. After completion of the construction work, when the defendant requested the plaintiff to allow him to stay in the plaint schedule property for a nominal rent of Rs.400/- per month, the plaintiff agreed and permitted the defendant to stay in the plaint schedule property as a tenant but he did not pay the rents regularly. As the plaintiff retired from service in the year 1997 and as he was unable to maintain his old mother and widowed sister, he demanded the defendant to pay the rents regularly or to vacate the plaint schedule property. The defendant having developed an evil idea to grab the plaint schedule property, filed the suit in O.S.No.185 of 2001 for permanent injunction with false averments stating that with the joint family funds, he constructed the plaint schedule house and it is his exclusive property and denied the title of the plaintiff over the plaint schedule property and further set up title in him. Hence the suit. Defendant filed a written statement denying all the averments of the plaint and admitting that the plaintiff is his elder brother and a retired Government Employee but contended that he is residing in the plaint schedule property since 1994 after construction of the house in the year 1993 and paying municipal taxes since 1994. The defendant and the plaintiff lived jointly as a joint family without dividing their joint family properties till the date of execution of Parikhat (partition) dated 18.08.1992 (Ex.B1) in lieu of oral partition that took place prior to 1992 whereby the property was allotted to him on payment of a sum of Rs.10,000/- by him to the plaintiff towards his share. Subsequent to the execution of Parikhat, he constructed the house in the name of the plaintiff as the site stood in his name. He being a Vaasthu Pandit and Astrologer came to know that it is not good to have the immovable properties in his name according to the astrological predictions. Since the plaintiff is his elder brother and manager of the joint family, the sale deeds (Exs.A1 and A2) were obtained in his name but the entire consideration was paid by him that is the reason why the property was allotted to him under the document dated 18.08.1992. When the plaintiff with some unknown persons came to the plaint schedule property and demanded the defendant to vacate the property, he filed the suit in O.S.No.185 of 2001 before the Principal Junior Civil Judge, Vijayawada for permanent injunction. The defendant is not a tenant under the plaintiff and prayed for dismissal of the suit. The defendant filed the suit in O.S.No.185 of 2001 for permanent injunction with the same averments made in the written statement, in which, the plaintiff filed a written statement as pleaded in O.S.No.948 of 2004. On settling the issues, O.S.No.185 of 2001 was transferred to the Court of II Additional Senior Civil Judge, Vijayawada as per the orders of the District Court in Tr.O.P.No.419 of 2004 dated 04.03.2005 to be tried along with O.S.No.948 of 2004 and on such transfer it was renumbered as O.S.No.420 of 2005. Common evidence was let in, in O.S.No.948 of 2004 wherein on behalf of the plaintiff PW1 was examined and Exs.A1 to A22 were marked. The defendant apart from examining himself as DW1 examined another witness and got marked Exs.B1 to B3. The trial Court by the impugned common judgment decreed the suit in O.S.No.948 of 2004 with costs holding that the plaintiff is the absolute owner of the plaint schedule property and entitled for recovery of possession and directing the defendant to vacate the plaint schedule property within two months from the date of the decree and handover the vacant possession to the plaintiff and to pay damages at the rate of Rs.800/- per month for unauthorised use and occupation from the date of the suit till he vacates the premises and dismissed the suit in O.S.No.420 of 2005 with costs. Aggrieved by the same, A.S.Nos. 147 and 148 of 2008 were filed by the defendant before the VII Additional District and Sessions Judge (Fast Track Court) Vijayawada. The lower Appellate Court by two separate judgments dated 08.06.2011 dismissed both the appeals. Hence, these two second appeals. The plaintiff who examined himself as PW1 stated that he acquired the property through two registered sale deeds under Exs.A1 and A2 and produced Exs.A6 to A8 and A15 to A19 property tax receipts out of which Exs.A6 to A8 and A15 were issued prior to the filing of the suit. His evidence discloses that he was a Government Employee and staying elsewhere in connection with his employment. It was elicited in the cross examination of DW1 that he worked for three or four years in a medical shop since 1964 and thereafter, he had no fixed avocation. No evidence whatsoever was let in by the defendant to show that he could acquire the plaint schedule property with his self- exertion or with the joint family funds. When the defendant pleaded that there was oral partition prior to 1992 and till then himself and his elder brother who is the plaintiff constituted joint family, it is for him to establish that there was ancestral property. Admittedly, both the sale deeds under Exs.A1 and A2 were registered in the name of the plaintiff. When the defendant was examined as DW1, he failed to offer any explanation as to why he paid an amount of Rs.10,000/- towards his share to the plaintiff who is his brother for allotting the plaint schedule property in his favour though he himself purchased the suit property under Exs.A1 and A2 sale deeds. When he admitted that there were no joint family properties acquired by them and he purchased the plaint schedule property with his money in the name of the plaintiff, the necessity for him to pay a sum of Rs.10,000/- to the plaintiff does not arise. Another important aspect is that even according to the defendant subsequent to the execution of Parikhat dated 18.08.1992 permission was obtained in the name of the plaintiff and he constructed the house. When according to the defendant, the schedule house was constructed subsequent to Ex.B1 and the property mentioned in Ex.B1 was a vacant site by that time, he failed to explain how assessment number was noted in Ex.B1 even prior to the construction of the house. Therefore, it can be held that Ex.B1 is a fabricated document. In view of the same, I am of the opinion that the plaintiff could be able to establish that with his own money he purchased the plaint schedule property, while he was in service and got constructed the schedule house through the defendant and permitted the defendant to reside therein. Therefore, the concurrent findings recorded by the lower Courts on appreciation of oral and documentary evidence do not give rise to any question of law. Hence, both the appeals are liable to be dismissed. The second appeals are accordingly dismissed. No costs. A.GOPAL REDDY,J Dt. 25.11.2011 lvl THE HON’BLE SRI JUSTICE A.GOPAL REDDY S.A.Nos. 949 and 950 of 2011 Dt. 25.11.2011