THE HONOURABLE SRI JUSTICE B.PRAKASH RAO AND THE HONOURABLE SRI JUSTICE G.BHAVANI PRASAD A.S.No.1792 of 2001 FRIDAY THE 21ST DAY OF AUGUST, 2009 Between: Shri Nagireddy Hema Durga Prasad and others .. Appellants and Kum. Nagireddy Vijaya Kumari and others …Respondents THE HONOURABLE SRI JUSTICE B.PRAKASH RAO AND THE HONOURABLE SRI JUSTICE G.BHAVANI PRASAD A.S.No.1792 of 2001 ORDER: (Per the Hon’ble Sri Justice B.Prakash Rao) The appellants who are the defendants 1 to 7 by way of this appeal under Section 96 of the Code of Civil Procedure are aggrieved against the judgment and decree in O.S.No.78 of 1996, dated 16-5-2001, on the file of the Additional Senior Civil Judge at Eluru partly decreeing the suit filed by the respondents 1 to 3 herein, inter alia, seeking for partition of the suit schedule properties. Heard Sri M.V.S.Suresh Kumar and Sri M.V.R.Narasimha Charya, learned counsel for the appellants and respondents, respectively. The factual matrix which gave rise to this case are that the subject matter of the suit are the acquired properties of late Venkateshwar Rao, who died on 17-1-1989 and devolved on the plaintiffs and the defendants 1 to 7. Of the parties to the suit, the plaintiffs and the 7th defendants are the sisters whereas the defendants 1 to 5 are the brothers and who are the children of the 6th defendant and late N.Venkateshwasr Rao. The properties include those purchased by late Venkateshwar Rao in the name of his sons on his own contribution. In spite of the fact that there was a demand for partition, it was not acceded to on the ground that all the properties should be kept in joint till the marriage of the 1st plaintiff is performed and the 1st plaintiff should live in item ‘A’ of plaint ‘B’ Schedule and 5th defendant who is also unmarried should reside in the said house. However, defendants 1 to 4 obtained the signatures of the 1st plaintiff who attained majority in the year 1992 on a document purporting to be relinquishment deed by misrepresentation. The plaintiffs issued a notice on 24-4-1996 seeking for partition. Realising that the defendants entered into agreement of sale with 3rd parties, hence, the suit. Contesting the suit claim, there was a denial on the principal allegations contained in the plaint. Further a specific plea was raised to the effect that there was already prior partition and consequently a partition list dated 15-6-1999 was executed allotting the properties. Therefore, the properties were never treated as joint family properties and they are liable for partition. There has been a will dated 8-11-1985 executed by the 6th defendant in favour of the 5th defendant and a relinquishment deed dated 1-4-1991 in respect of item 1 of plant ‘C’ schedule property. The other properties are stated to have been purchased in their own names, the details of which have been given in the said written statement. In respect of the pleas taken in defence by the defendant No.1, the defendant Nos. 2 to 8 without filing a separate detailed written statement filed a memo adopting the same. On those and other allegations contained, the Court below framed the following issues: 1. Whether the plaintiff Nos.1 to 3 are entitled 1/10th share each? 2. Whether the partition was effected between the father and sons (defendants 1 to 5) orally and a partition list was executed on 15-6-1979 and whether the alleged oral partition is true, valid and binding on the plaintiffs? 3. Whether the plaintiffs are entitled for past profits for Rs.3,00,000/-? 4. To what relief ? Later having regard to the impleading of subsequent purchasers as defendants 9 to 12, who filed separate written statements, especially, pleading as bona fide purchasers for value, further following issues were framed: 1. Whether the defendant Nos.9 to 11 are bona fided purchasers for valid consideration ? 2. Whether the defendant No.11 is in possession and enjoyment of the plaint schedule property? Later during the course of the trial the plaintiffs examined PWs.1 to 3 and marked Exs.A.1 to A.12. On behalf of the defendants DWs.1 to 12 were examined and marked Exs.B.1 to B.54. On considering the evidence and material on record, the Court below partly decreed the suit, which is under challenge in this appeal and passed a preliminary decree to the effect that items (a) to (d) of plaint ‘A’ schedule and items (B) and (C) of plaint ‘B’ Schedule and the immovable properties as detailed by the advocate commissioner in the report, which includes item No.4 of the plaint ‘C’ schedule property are liable for partition and directed 10 equal shares be made by metes and bounds allotting one share to each of the plaintiffs and putting them in possession. Further, the 2nd plaintiff is granted on partition item (A) of plaint ‘B’ schedule into 60 equal shares by metes and bounds allotting one such share to her and putting her in possession. It is held that the plaintiffs are entitled to past mesne profits for a period of 3 years prior to the suit and the future mesne profits to be determined later till the delivery of possession. It was directed to allot the properties covered by originals of Exs.A.9, A.10, A.12 and B.22 to the defendants 1 to 6 and the property covered by original of A.11 to the 5th defendant while working out the equities in the final decree proceedings. Ultimately the suit was dismissed as regards items 1 to 3, 5 and 6 of plaint ‘C’ schedule and also item (A) of plaint ‘B’ schedule. The parties are directed to bear their own costs. As far as the dismissal of the suit is concerned in regard to the aforesaid items mentioned in ‘C’ and ‘B’ schedule, no appeal has been filed by the plaintiffs, and therefore, it is not necessary to go into the correctness of the said findings nor there are any objections as well. The learned counsel appearing for the appellants by taking us through the evidence and material on record, raised principally two contentions, firstly, the principal document executed by the defendants 1 to 5 in favour of late Venkateshwar Rao, which is marked as Ex.B.5 dated 4-5- 1998 has not been considered from the proper perspective, and secondly, even the prior partition pleaded by them has not been given due attention, hence, the very suit is liable to be dismissed accepting such partition which has already been made. The learned counsel for the respondents rebutting the aforesaid contentions submitted that the Court below has come to a right conclusion only after appreciating the entire evidence and material on record and even the plea of prior partition has been rejected by valid reasons, and that apart, the question of having any effect of Ex.B.5 either way, does not arise nor would it over come the various other checkered events which belie the effect thereof nor would it take away the rights which are conferred in between. Considering these submissions and on perusal of the material on record, the point ultimately which arises for consideration is as to whether on the facts and circumstances the Court below is right in passing a preliminary decree in respect of items as mentioned above. At the outset, it is submitted that there is no denial in regard to the relationship. There is also no denial to the effect that all the properties were virtually acquired or obtained by late Venkateshwar Rao, who died on 17-1-1989. It is the case of the plaintiffs that all these properties are self-acquired properties and therefore the parties herein are entitled to their respective shares as claimed. The same is being contested by the defendants including the 3rd party alienees to the effect that there was no such joint property at any point of time, and therefore, the properties are not liable for partition. On behalf of the plaintiffs, PW.1 who is the plaintiff No.1 was examined followed by PW.2, the other plaintiff No.2 and the 3rd plaintiff as PW.3. All these witnesses deposed to the very self-same allegations as contained in the plaint claiming their right, title and interest on the death of late Venkateshwar Rao. In support, they filed a notice issued by them on 23-4-1996 which was marked as Ex.A.1 and also various other registered sale extracts which were marked in Exs.A.3 to A.12. Having regard to the fact that the Court below did not accept the plaintiffs’ version in regard to the items 1 to 3, 5 and 6 of plaint ‘C’ and item (A) of plaint ‘B’ schedule property, we are not going into those aspects. On behalf of the defendants, DW.1 is the defendant No.1, and other witnesses include 3rd parties. They merely reiterates to the effect that most of the properties as claimed by them are their own acquisition apart from the fact that there is already a partition list prepared on 15-6-1979, which is marked as Exs.B.1 and is an un-registered one. An attempt was made on behalf of the defendants to prove the same. However, on a reading of their evidence and even the documents as filed from both sides, it amply shows, as rightly held by the Court below, that the said partition is not proved and cannot be accepted nor there is any material to show that the same was acted upon. The parties continued to live together and jointly and therefore it is only on the death of Venakteshwar Rao they will be entitled to their respective shares. In regard to the items rejected, the Court below has given valid reasons as to why they are not liable for partition. Therefore, on appraisal of the material and in the absence of any proper evidence acceptable in law to basically establish the factum of prior partition, we do not find any reason to fall back on the said plea or warrant any variation in regard to the finding arrived by the Court below. No material is shown in support of the plea. Coming to the other pleas, which have been raised on behalf of the appellants in regard to the non-consideration of Ex.B.5, it is seen that it is only a General Power of Attorney said to have been executed by defendants 1 to 5 in favour of late Venkateshwar Rao, which is dated 4-5- 1988, whereas that itself does not put an end to the continued status of the parties or even continued activities and the treatment meted out to the properties owned by the family. On an appraisal of these various transactions and checkered events as can be seen, which are prior and later to the said Ex.B.5, there cannot be any doubt as to the continued such state of affairs. Even otherwise, nothing has been pointed out on behalf of the appellants to show as to whether the said document in Ex.B.5 was in any way given effect to. In the absence of any such material and especially several other circumstances surrounding, nothing else can be made out nor would it have any effect on the finding, which ultimately arrived by the Court below. In view of the same, we do not find merits in the above appeal and except the above nothing else has been pointed out to show to warrant any such interference on the decree passed by the Court below. No other plea is raised by the appellants, hence there are no merits. For the foregoing reasons, the appeal is accordingly dismissed. No costs. _______________ B.PRAKASH RAO,J ______​____________ G.BHAVANI PRASAD,J DATE:21-8-2009 grk