*HON’BLE SRI JUSTICE R.KANTHA RAO + CCCA No. 154 of 2001, + CCCA No. 165 of 2009 AND + C.C.No. 14 of 2010 % Date: 23.12.2011 Between: C.C.C.A.No.154 of 2001 & C.C.No.14 of 2010: Between: #Rudraraju Venkata Surayanarayana Raju …Appellant And $Rudraraju Krishnam Raju (died) per L.Rs. …Respondents C.C.C.A.No.165 of 2009: Between: #Sridhar Vasudev Bedekar and two others … Appellants And $Rudraraju Venkata Suryanarayana Raju and others …Respondents ! Counsel for the appellants : Sri VLNGK Murthy in CCCA No.154/01 And CC No.14/2010, M/s N.Mohan Venkata Chalam, Rama Mohan Palanki in CCCA 165/09 ^ Counsel for respondents : M/s P.N.Murthy, TVS Prabhakar Rao, VVLN Sarma,K.S.Murthy, Venkateshwarlu G, KVA Rama Prasad, Mrs.B.Naga Sailaxmi in CCCA No.154 of 2001. Sri VLNGK Murthy in CCCA No.165/09 Sri P.N.Murthy in CC No.14/2010. < GIST: >HEAD NOTE: ? Cases referred: HON’BLE SRI JUSTICE R.KANTHA RAO C.C.C.A.No. 154 of 2001, C.C.C.A.No. 165 of 2009, AND CONTEMPT CASE NO.14 of 2010 Date:23-12-2011 C.C.C.A.No.154 of 2001 & C.C.No.14 of 2010: Between: Rudraraju Venkata Surayanarayana Raju …Appellant And Rudraraju Krishnam Raju (died) per L.Rs. …Respondents C.C.C.A.No.165 of 2009: Between: Sridhar Vasudev Bedekar and two others …Appellants And Rudraraju Venkata Suryanarayana Raju and others …Respondents HON’BLE SRI JUSTICE R.KANTHA RAO C.C.C.A.No. 154 of 2001, C.C.C.A.No. 165 of 2009, AND CONTEMPT CASE NO.14 of 2010 COMMON JUDGMENT: These two appeals arise out of the judgment, dated 10.04.2001 in O.S.No.605 of 1991 passed by the IV Senior Civil Judge, City Civil Court, Hyderabad. 2. C.C.No.14 of 2010 is filed by the plaintiff in O.S.No.605 of 1991 seeking to punish the respondents 8 and 11 for alienating part of item No.35 of plaint ‘A’ schedule property under a registered sale deed dated 29.10.2009 and registered agreement of sale-cum-general power of attorney for violation of the orders passed by this Court on 19.11.2001 in CMP No.13863 of 2001 in CCCA N.154 of 2001 and also to punish the respondents 12 and 13 for purchasing the portion of item No.35 plaint 'A' schedule property for violation of the orders passed by this Court on 19.11.2001 in CMP No.13863 of 2001 in CCCA N.154 of 2001 by attaching the property shown in the schedule and also by sending them to civil prison. 3. CCCA No.154 of 2001 is filed by the plaintiff, whereas CCCA No.165 of 2001 is filed by the defendants 2 to 4. 4. While disposing of the appeals and the contempt case, the parties will be referred to as the plaintiff and defendants i.e. as they were originally arrayed in the suit. 5. In the first place, I would like to briefly state the pleadings of the respective parties and the brief averments of the contempt case. 6. C.C.C.A.Nos. 154 of 2001 and 165 of 2009, Plaintiff is the adopted son of Rudraraju Krishnam Raju, the first defendant in the suit. The defendant No.8- Pericherla Sundara Vijayalaxmi is the natural daughter of the first defendant. The plaintiff was adopted by the first defendant on 07.06.1964. It is alleged in the plaint that the plaintiff and first defendant are the members of the joint Hindu family and the properties situated at different places are of joint nature. It is alleged that there is no partition between the plaintiff and the defendants in respect of ‘A’ schedule property and ‘B’ schedule property and a partition list was prepared by the defendants in 1975 and at the request of the first defendant, the plaintiff signed on the list on 05.06.1969 for filing the same before the Land Reforms Tribunal. The partition list is sham and nominal and never acted upon and the plaintiff is never in separate possession of the property as mentioned in the list. The plaintiff used to look after the joint family lands and the defendant No.1 purchased several agricultural lands and houses in the name of his wife, daughter, out of joint family funds. It is alleged that on 18.05.1975 the mother of the plaintiff died and she during her life time executed a Will and on the said Will, he put his signature as witness and the lands belong to his mother were sold in the year 1980-81. The first defendant also purchased movable assets, shares, jewellery, tractor in the name of the plaintiff, defendant No.1 and defendant No.8. Originally the plaintiff filed suit seeking partition of item No.1 of the schedule property contending that the suit property is the joint family property of himself and the first defendant. It is alleged in the plaint that when the first defendant issued a paper publication offering to sell item No.1, he approached the court and instituted the suit for partition claiming half share in item No.1 of the plaint schedule property. 7. The first defendant filed written statement contending that in 1969 itself the movable and immovable properties of the joint family were partitioned in the presence of elders and well wishers and subsequently on 05.06.1969, a list of immovable properties was reduced into writing evidencing oral partition. The plaintiff and the first defendant are in possession of their respective shares. Item No.1 is self acquired property of the first defendant and the plaintiff has no right, title or interest and this property was not purchased out of joint family funds. The suit plot was given to defendant No.8 under registered Will on 09.11.1983, later also, the first defendant executed another Will on 11.01.1991 and got it registered under which he bequeathed the suit plot in favour of his daughter. The defendant No.1 has only daughter and he has no sons. It is contended that the plaintiff filed declaration on 10.04.1975 wherein he has clearly shown his share of lands, which he got in the oral partition. It is further contended that when some hut dwellers tried to encroach on item No.1 property, the first defendant filed O.S.No.3918 of 1980 on the file of VII Assistant Judge, City City Court, Hyderabad and obtained injunction. 8. The second defendant filed written statement contending that the defendants 2 to 4 have purchased item No.1 of ‘A’ schedule property under three registered sale deeds on 30.03.1995 and they also entered into development agreement-cum-G.P.A. on 02.05.1997 which was registered. Item No.1 of ‘A’ schedule property is self acquired property of defendant No.1 and plaintiff has no right in the property and there is no evidence that item No.1 was purchased out of income from the joint family properties. The defendants 3 to 5 filed memo adopting the written statement filed by the second defendant. 9. The 7th defendant filed written statement contending that he purchased item Nos.2, 5,7, 9 and 47 of ‘A’ schedule property under registered sale deeds on 30.01.1995 from the first defendant and similarly, 6th defendant purchased item Nos.3 and 6 of ‘A’ schedule property from the first defendant under registered sale deed dated 31.01.1995. The first defendant is the exclusive owner of the suit property and the defendants purchased the said items which fell to the share of first defendant in the oral partition. 10. The defendants 8 and 9 filed written statement contending that they purchased item Nos.2, 3, 6, 7, 14, 15, 16, 24, 26, 27, 48 and 50. During her life time, wife of defendant No.1 sold item Nos.5, 8, 9, 18 and 25 and she also gave item Nos.29, 30, 42 to defendant No.8 at the time of her marriage towards Stridhana. It is further contended that item Nos.31 to 41, 43 to 46, 40 and 52 properties were purchased by defendant No.8 with the income derived from the agricultural lands belonging to her and her husband, who is the defendant No.10. Item Nos.53 and 54 were bequeathed by her mother in favour of the defendant No.8 under registered Will in 1975 and subsequently they were sold away and the plaintiff has nothing to do with those properties. Item Nos.10 to12, 17, 19 to 23 and 28 properties stand in the name of plaintiff and he had received the same at the time of partition. The defendant No.10 filed a memo adopting the written statement filed by the defendants 8 and 9. It is further contended that several amendments were made in the plaint and an additional written statement was also filed by the defendant No.1. The amendment that was done was in accordance with the order in IA No.848 of 1992 and additional written statement filed alleging that plaintiff high handedly included all the properties and that the properties were already partitioned in 1969 and each of the joint family member is in exclusive possession of his/her properties. 11. Before the learned trial Court, to substantiate his case, the plaintiff examined PWs.1 and 2, and marked Exs:A-1 to A-56. On behalf of the defendants, DWs.1 and 2 were examined and Exs:B-1 to B-26 were marked. 12. On appreciation of oral and documentary evidence adduced by both the parties, the learned trial Court partly decreed the suit granting half share to the plaintiff and other half share to the defendants 2 to 4 in item No.1 of the schedule mentioned property holding that the remaining properties are not liable for partition. 13. Assailing the said findings, the plaintiff and the defendants 2 to 4 filed the present appeals. 14. CONTEMPT CASE NO.14 of 2010: This contempt case has been filed by the petitioner/plaintiff under Order 39 Rule 2A of CPC to punish the respondents 8 and 11 for alienating part of item No.35 of plaint ‘A’ schedule property under a registered sale deed dated 29.10.2009 and registered agreement of sale-cum- general power of attorney in violation of the order dated 19.11.2001 in C.M.P.No. 13863 of 2001 in C.C.C.A.No.154 of 2001 and the respondents 12 and 13 for purchasing part of item No.35 of plaint ‘A’ schedule property in violation of the order in C.M.P.No. 13863 of 2001 in C.C.C.A.No.154 of 2001. It appears that after filing CCCA No.154 of 2001, the plaintiff filed an application seeking interim injunction restraining the defendants from alienating the properties and an interim order was passed by the learned single Judge of this Court to the said effect and thereafter, it seems that despite the said order in CMP No.13863 of 2001, the respondents 8 and 11 in the contempt case and also the respondents 12 and 13 therein made certain alienations in respect of item No.35 of 'A' schedule properties and inconsequence thereof, the contempt case has been filed by the plaintiff/appellant to punish them for violating the orders of injunction not to alienate the property passed by this Court. 15. I have heard the learned counsel appearing for the appellants and the respondents. 16. Admittedly and also from the evidence forthcoming in this case, Rudraraju Venkata Suryanarayana Raju, plaintiff is the adopted son of Rudraraju Krishnam Raju, the first defendant in the suit. The defendant No.8-Pericherla Sundara Vijayalaxmi is the natural daughter of the first defendant. The plaintiff was adopted by the first defendant on 07.06.1964. Originally the plaintiff filed suit seeking partition of item No.1 of the schedule property contending that the suit property is the joint family property of himself and the first defendant. It is alleged in the plaint that when the first defendant issued a paper publication offering to sell item No.1, he approached the court and instituted the suit for partition claiming half share in plaint schedule property, item No.1. Subsequently, the plaintiff filed amendment petition in I.A.No.848 of 1992 for including items 2 to 54 in the suit schedule property. The said amendment petition was allowed. Thus, ultimately the suit for partition stood for consideration before the learned trial Court for partition of items 1 to 54 of the schedule mentioned property. Initially the contention of the plaintiff was that item No.1 of the schedule mentioned property is the joint family property of himself and the first defendant. Subsequently, he came forward with a plea that items 2 to 54 also are the joint family properties. The defendants 2 to 4, 6, 7 and 9 are the purchasers. Defendant No.5 was also added in the suit on the ground that the defendants 2 to 4 entered into development agreement with defendant No.5 in respect of schedule 'A' property. Further, originally the plaintiff filed the suit against the first defendant alone and thereafter the other defendants were added as parties by means of amendment which was allowed by the learned trial Court. 17. There are certain admitted facts in this case. There is no dispute that the first defendant purchased item No.1 of 'A' schedule properties under a registered sale deed dated 19.11.1964 which is marked as Ex.A-18. Originally it is said that there was a partition between the first defendant and his brothers and under the said partition, the first defendant got the plaint schedule properties to his share. Ex.A-1 is the certified copy of the registered partition deed of the year 1954 which shows that there was partition among the first defendant and his brothers and that the schedule mentioned property fell to the share of the first defendant in the said partition. Subsequent to 1964, there were number of transactions under which the properties were sold and purchased by the first defendant, his wife, plaintiff and also his natural daughter defendant No.8. Ex.B-1 is a crucial document in this case. Ex.B-1 is a partition list prepared by the plaintiff and the first defendant evidencing partition of the properties earlier between them. The said document is marked as Ex.B-1. The said document was filed by the plaintiff and the first defendant before the learned Land Ceiling authorities at the time of submitting their declarations under the Land Reforms Act. The parties also have not disputed about the execution of Ex.B-1 partition deed. The plaintiff, however, contends that Ex.B-1 was executed only for the purpose of submitting declaration before the land ceiling authorities and the said document was never acted upon. According to the plaintiff, all the properties were never partitioned and they were joint on the date of filing of the suit. It was further contended by the plaintiff that in fact, Ex.B- 1 was executed in 1975 but not in 1963, but the said contention was rightly rejected by the learned trial Court on the ground that the burden to prove the said fact lies on the plaintiff and he failed to adduce evidence to show that the document was in fact executed in 1975. Further, PW-2 who is the scribe of Ex.B-1 document gave evidence before the learned trial Court that he drafted the document and it was executed in the year 1969 itself. 18. Ex.B-22 is the date of birth certificate of plaintiff who was examined as PW-1 in which his date of birth is mentioned as 01.06.1950. So, on the date of execution of Ex.B-1, the plaintiff was a major and he did not challenge the same till the date of filing of the suit on the ground that it was merely brought into existence for the purpose of submitting the declaration under the Land Reforms Act and was really not acted upon. Ex.B-26 is the Will executed by the wife of the first defendant bequeathing some properties in favour of her husband and others. This is a registered Will and was attested by PW-1. It is pertinent to mention in this context that in the said Will there is a mention about the partition of the joint family properties between the plaintiffs and the first defendant and there is also reference to Ex:B-1 partition list dated 17.06.1964. Voluminous evidence was brought on record before the learned trial Court which clearly shows that there were several alienations made by the plaintiff, first defendant, his wife and his daughter which clearly revealed that each party was dealing with the properties fell to their respective share independently and this is one factor which was considered by the trial Court that there was partition of properties among the principal parties to the suit. It is also crucial to mention that PW-1, the plaintiff is one of the attestors of Ex.B-26 registered Will dated 13.05.1975 executed by his adoptiv mother who is the wife of the defendant No.1. It is clearly mentioned in Ex.B-26 Will that the wife of the first defendant was suffering from cancer and she wanted to bequeath some of her properties during her life time and accordingly she executed the Will bequeathing certain properties in favour of her husband and others. PW-1 who is one of the attestors of the said Will did not explain the circumstances which made him to attest the Will though all the contents of the said Will are not true. Since Ex.B-1 partition list was referred in Ex.B-26. Ex.B-26 must be certainly prior to Ex.B-1. Ex.B-26 was executed on 13.05.1975 and if really the partition was effected in the year 1975, there would not have been any mention about the said partition in Ex.B-26. The learned trial Court considering all these aspects though held that there was partition of properties between first defendant and the plaintiff, curiously took a view that the evidence on record shows that there was partition of items 2 to 54 of the schedule mentioned properties, but the item No.1 of the schedule mentioned properties was kept joint and it has to be considered as the joint family property. The first defendant some time after filing written statement in the suit died and the 8th defendant, his natural daughter was brought on record as his legal representative. The basis for arriving at the above said finding by the learned trial Court is that there was no mention about item No.1 of schedule mentioned property in Ex.B-1 partition list executed between the plaintiff and the first defendant. Arriving at the said conclusion, the learned trial Court held that items 2 to 54 of the schedule mentioned property being subject matter of the partition between the plaintiff and the first defendant as evidenced by Ex.B-1 partition list are not available for partition. Whereas item No.1 of the schedule mentioned property being kept joint is liable for partition and in the said property, the plaintiff is entitled for half share. Accordingly, the learned trial Court partly decreed the suit granting half share to the plaintiff in item No.1 of the schedule mentioned property holding that the remaining properties are not liable for partition. It appears that after filing CCCA No.154 of 2001, the plaintiff filed an application seeking interim injunction restraining the defendants from alienating the properties and an interim order was passed by the learned single Judge of this Court to the said effect and thereafter it seems that despite the said order in CMP No.13863 of 2001, the respondents 8 and 11 in the contempt case and also the respondents 12 and 13 therein made certain alienations in respect of item No.35 of 'A' schedule properties and inconsequence thereof, the contempt case has been filed by the plaintiff/appellant to punish them for violating the orders of injunction not to alienate the property passed by this Court. 19. Now the points for determination in these appeals and in the contempt case are: 1) Whether the findings recorded by the trial Court that item No.1 of the schedule mentioned property alone is the joint family property of the plaintiff and the first defendant which is liable for partition and that the items 2 to 54 were partitioned between them and they being not joint family properties are liable for partition, is correct and in accordance with law? 2) Whether the respondents 8 and 11 for alienating part of item No.35 of plaint ‘A’ schedule property under a registered sale deed dated 29.10.2009 and registered agreement of sale cum general power of attorney and the respondents 12 and 13 for purchasing part of item No.35 of plaint ‘A’ schedule property are liable to be punished in CMP No.13863 of 2001 in CCCA No.154 of 2001 for violating the orders of injunction passed by this Court restraining them from alienating the properties, pending disposal of the suit? 20. POINT NO.1: As already said, either the plaintiff or the defendants have not disputed about the execution of Ex.B-1 partition list. The contention of the plaintiff is that it was never acted upon. The said partition list was submitted before the Land Ceiling Authorities along with declaration filed by the plaintiff and first defendant. The plaintiff attested Ex.B-1 partition list. The burden to prove that Ex.B-1 was not acted upon or that it was in fact executed in the year 1975 is on the plaintiff but he failed to discharge the said burden. When the said list was filed asserting that the partition of the properties took place between the plaintiff and the first defendant as shown in the list, it is not open for the plaintiff to contend that the partition mentioned in the partition list is not correct and it was not acted upon. If there was any contrary intention of the parties and if really the said partition list was brought into existence in 1975 only for the purpose of filing before the land ceiling authorities, the plaintiff has to establish the same by adducing convincing evidence, but the plaintiff failed to prove any intention of the parties which was contrary to the recitals of Ex.B-1. Moreover, in Ex.B-26 Will executed by the wife of the first defendant for which the plaintiff is one of the attestors it is clearly mentioned that the properties were partitioned as per Ex.B-1 partition list executed on 17.06.1964. If the recitals in the said Will in respect of partition of the properties are not correct, it is not understandable as to why the plaintiff attested as the attesting witness of the said document. Further, the plaintiff also did not challenge either the said Will Ex.B-26 or the partition list Ex.B-1 till the date of filing of the suit. Therefore, it can be safely inferred that Ex.B-1 partition list was acted upon. Various documents which were brought on record by the parties which were discussed in detail by the learned trial Court clearly revealed that there was partition of properties between the plaintiff and the first defendant and the principal parties to the suit have been dealing with the properties independently by making alienations. This is one of the important factors in proof of the fact that there was partition of the properties between the plaintiff and the first defendant. Only ground on which the learned trial Court arrived at the conclusion that the item No.1 of the schedule mentioned property is kept joint and it is only liable for partition is that there is no mention about the said property in Ex.B-1 partition list dated 17.06.1964. In this context, it is crucial to mention that there is evidence on record to show that the first defendant was having self acquired property even prior to Ex.B-1 partition list and item No.1 was purchased by the first defendant under Ex.A-18 sale deed dated 19.11.1964. Therefore, non-mention of item No.1 in Ex.B-1 partition list does not lead to any inference to the effect since it was kept joint it was not mentioned in Ex.B-1. If that was so, the parties would have certainly mentioned specifically in Ex.B-1 partition list that all the properties were partitioned between them and item No.1 was only kept joint. Evidently, there is no such recital in Ex.B-1 partition list. Therefore, obviously item No.1 which was purchased by the first defendant under Ex.A-18 registered sale deed, dated 19.11.1964 is the self acquired property of the first defendant. Nothing has been placed on record by the plaintiff to show that the first defendant purchased item No.1 of the schedule property with the earnings of joint family. It is pertinent to note that even by date of Ex.A-1 partition deed between the first defendant and his brothers dated 12.11.1954, the first defendant was having self acquired properties covered under Ex.A-24 dated 22.03.1954 and Ex.A-26 dated 01.09.1953. Therefore, it is obvious that the first defendant must have purchased item No.1 of