THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT NO.691 OF 1989 JUDGMENT: The plaintiff in O.S.No.49 of 1967 on the file of the District Judge, West Godavari at Eluru is the appellant herein. The suit was one filed for recovery of possession of the B-schedule properties from the defendants. The brief facts are that one Gutta Venkanna had three wives by name Seethamma, Kotamma and Seshamma. Seethamma died issueless. Kotamma has got a daughter by name Seethamma, who has got two sons viz. Veerayya and Venkaiah. Veerayya has got three daughters by name Tulasamma, Pushpamma and Annamma. Pushpamma’s husband is the 1st defendant and Veerayya’s adopted son is the 2nd defendant. Seethamma’s second son is Venkayya and his son is the plaintiff, who is Ramakrishna Rao. Sheshamma has got four daughters by name Kotamma, Buchamma, Lakshmamma and Mahalakshmamma. Kotamma’s son is Venkata Subbayya. It is further stated that there is a family settlement in respect of the estate of Venkanna in between Seshamma and her daughters and Seethamma. According to the case of the plaintiff, in the family settlement Seethamma is maternal grand mother, got the item No.2 of the schedule property along with other items and continued to be in possession. Earlier two suits were filed by Venkata Subbayya, son of Kotamma in O.S.No.330 of 1949 and Veerayya, son of Seethamma, in O.S.No.178 of 1949 on the file of the District Munsif, Eluru claiming the estate of Venkanna as reversioner. Pending the suit, a receiver was appointed and the 1st defendant happened to be the highest bidder in the auction and took possession of the land, which is the subject matter of the present suit and the 1st defendant became the highest bidder and he failed to surrender the property. The plaintiff, therefore, filed the suit for recovery of possession of the property from the 1st defendant as he is said to be in illegal possession. It was the claim that the possession of the 1st defendant after the termination of the earlier suits and the lease period, it is illegal and, therefore, the plaintiff is entitled for the properties. In both the earlier suits, the plaintiff herein was shown as a party and possession of the properties was also admitted. The defendants denied the right of possession and after consideration of the material evidence on record, the suit of the plaintiff was decreed by judgment dated 31.08.1974. Thereafter, first appeal in A.S.No.867 of 1975 was filed and it was also dismissed. As against that L.P.A.No.63 of 1979 was preferred and this Court by its judgment dated 17.10.1985 has considered that the dispute is with regard to item No.2 of plaint B-schedule property to an extent of Ac.1-15½ cents in Sy.No.304/2 out of the total extent of Ac.4-31 cents and finding that the identity of the property is not established and the possession of the plaintiff or his predecessor is to be established till the dispossession by the receiver and consequently, remanded the matter to the lower Court. After remand the plaintiff has granted the schedule giving the particulars and claiming the eastern Ac.1-15 cents as the property he is entitled out of the total extent of Ac.4-31 cents from which he is said to have been dispossessed. The defendants 4 to 9 filed written statements stating that they are the legal representatives of the 1st defendant and they claimed that by virtue of the Will executed by the 1st defendant they became entitled to the property and there was a partition in 1957 and subsequently there was a codicil and the total extent of Ac.4-31 cents was given to 7th defendant. It was also further pleaded that though the Supreme Court has upheld the earlier family arrangement, the plaintiff has to prove that this particular item of the property fell to the share of Seethamma and that the plaintiff is entitled to the said property. Accordingly, the issue was framed by the lower Court and P.W.3 was recalled and examined. After considering the material on record, the lower Court found that the plaintiff has failed to prove that Ac.1-15 cents of land is a divided bit and that he or his predecessors in interest are in possession of the property and dismissed the claim. Accordingly, the present appeal is preferred. The points that arise for consideration are: 1. Whether the property Ac.1-15 cents in item No.2 situated in Sy.No.304/2 is the property of the plaintiff and entitled for recovery of possession of the same? 2. Whether the judgment and decree passed by the learned District Judge is legal and sustainable? POINTS: So far as the relationship between the parties is concerned, there is not of much dispute. So also the filing of the earlier suits in O.S.No.330 of 1949 and O.S.No.178 of 1949 and in those suits the plaintiff being the defendant and his possession on Ac.1-15 cents having pleaded and admitted is also not in dispute. The earlier suits were dismissed upholding the family arrangement set up by the present plaintiff and they have become final even in the Supreme Court. As per the directions of this Court, the lower Court has to decide the identity of Ac.1-15 cents out of the total extent of Ac.4-31 cents and possession of the plaintiff and his predecessor in interest is to be established to prove the title to get back the possession after dispossession since the family settlement itself will not show the rights. In the earlier suits the family arrangement was pleaded in the written statement, which is marked as Ex.A-38. It was pleaded that there was a family arrangement prior to 09.08.1911 between Gutta Seshamma and the daughters and sons and the share that has fallen to the share of Seethamma was to be taken by her sons Venkayya and Veerayya. Venkayya is no other than the father of the present plaintiff and Seethamma is said to have become entitled to 8.00 acres of land. The present schedule of property in item No.2 is already shown in that family arrangement. The lower Court has found that when the property of Seethamma is to be taken by Veerayya and Venkayya, the burden is on the plaintiff to prove that the amended schedule in Item No.2 of the B-schedule property fell to the share of his father in the family settlement that was entered prior to 1911. Evidently, in the original plaint, the boundaries were not given and it is only after the amendment, the eastern portion is claimed as the property claimed by the plaintiff. It was further sought to be shown that the other brother has got the western portion and the western boundary is shown as the share of G.B.Ramakrishna Rao, the adopted son of Veerayya. The lower Court found that in the earlier suit, there was no plea that there was a partition between Venkayya and Veerayya about the properties they got from Seethamma and that the eastern portion fell to Venkayya and consequently the plaintiff is entitled for the same. There was also no plea that after the death of Venkayya and Veerayya, there was a partition with 2nd defendant. Though, the findings in the earlier suits and also in the L.P.A. show that the family settlement was upheld, it was felt that the plaintiff has to prove the identity of the suit land and without proof of it, the plaintiff is not entitled for the same. The contention was raised by the appellant that as in the earlier suit the possession of this item was admitted and consequently the possession of the plaintiff and the predecessors in interest has to be accepted, did not find favour with the lower Court since this was not accepted by this Court and the purpose of remand itself is to prove the same. There is no dispute about the fact that the receiver auctioned the suit schedule property also and the 1st defendant was said to be the lessee. But, however, the evidence of P.W.2 does not show that the 1st defendant participated in the auction and was a lessee. Ex.A-1 proceedings did not disclose the same. The evidence of P.W.2 does not disclose the participation of the 1st defendant in the auction. It is the specific case of the 1st defendant that he was only a bidder for item No.1 of the B-schedule property and he was only in possession of 2.00 acres and odd of item No.2, which was settled on him by Seethamma and others by registered gift deed and, therefore, the plaintiff has no title to this particular item of the property. Therefore, evidently, there is no material to show that the 1st plaintiff came into possession of item No.2 of B-schedule property in the auction proceedings conducted by the receiver and on the other hand, he is setting up independent title. Though, it was stated by the plaintiff as P.W.3 that his father told him that there was a family settlement in the year 1944 between Venkayya and Veerayya in respect of Seethamma’s properties in B-schedule property, this was not pleaded in the plaint. It was also not reduced into writing. Therefore, as matter stands, there is nothing to show that there was a division of the B- schedule property and the heirs of Seethamma and the father of the plaintiff got the eastern portion as claimed now. Furthermore, from the own admission of the plaintiff, the eastern property of 2.00 acres was purchased under Ex.B-36 on 12.01.1967. Evidently, after this suit, the plaintiff himself relied upon a partition deed in Ex.A-39 dated 07.07.1963, which goes to show that eastern half portion of Ac.2-31 cents was given to the 2nd defendant and the remaining 2.00 acres should go to show that eastern half measuring Ac.2-30 cents was given to the 2nd defendant and remaining 2.00 acres was given to Venkatasubba Rao, who executed the sale deed on 12.01.1967 in favour of the 1st defendant. Therefore, when the documents filed by the plaintiff show that the eastern portion is in possession of the 2nd defendant, his claim that he and his predecessors enjoyed the property to an extent of Ac.1-15½ cents cannot be believed. The learned District Judge has considered the factual aspects and the documents and found that the plea of the plaintiff after amendment that he got the eastern portion Ac.1-15 cents in item No.2 is not correct and there is no material evidence to come to a different conclusion and there are no merits in the appeal. Accordingly, the app0065al suit is dismissed. No costs. ________________________ N.R.L.NAGESWARA RAO, J 08-11-2011 MR THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT NO.691 OF 1989 Date: 08-11-2011 MR