IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE TWENTY THIRD DAY OF FEBRUARY, TWO THOUSAND AND ELEVEN PRESENT THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT No. 416 OF 2001 BETWEEN: Dasari Gangulappa. …APPELLANT AND Dasari Krishna Murthy and others. …RESPONDENTS The Court made the following: THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO APPEAL SUIT No. 416 OF 2001 JUDGMENT: The 1st defendant in O.S.No. 138 of 1995 on the file of Senior Civil Judge, Madanapalle, is the appellant herein. 2. The suit was filed for partition of the plaint A & B-Schedule properties into three equal shares and for allotment of the same to the plaintiffs and defendants. 3. According to the case of the plaintiffs, one Gangappa and Anthirappa are brothers and they have partitioned their joint family properties under registered partition deed, dated 01-08-1973 and the plaint A-Schedule property fell to the share of Anthirappa and B- Schedule property fell to the share of Gangappa. Gangappa has got two wives and the 1st defendant is the son through the 1st wife and the plaintiffs are the children through second wife. The brothers of Gangappa died intestate and the children of Gangappa have also succeeded to their shares. After the death of Gangappa, 1st defendant assumed the management of the family properties and acquired some properties with the income from ancestral landed properties and also some of the schedule properties were purchased. But, the documents were taken in the name of the 1st defendant, he being the eldest member. Therefore, the plaintiffs and 1st defendant have got share and the suit was filed for partition of the property into three shares and that 2/3rd share to the plaintiffs and 1/3rd share to the 1st defendant. 4. Defendants 2 to 16 were added as parties as they are said to be co-owners with regard to some of the items of the property and they remained exparte. 5. The 1st defendant, who contested the suit, filed a written statement admitting the relationship and also the registered partition between Gangappa and his brother. According to the 1st defendant, Gangappa died about 15 years back and one year thereafter, there was a division of the joint family properties, which are items 1 to 6 and each brother has got his share. After the division, the 1st defendant has purchased items 7 to 18 of A-schedule from his self earnings and borrowings. Therefore, the plaintiffs are not entitled for the partition of those properties. It was also further pleaded that item No.8 of the plaint A-schedule property was purchased from Surtha Bi and was mortgaged. Subsequently, the property was sold; as such the said item of the property is not liable for partition. The valuation adopted by the plaintiffs is not correct. The court fee paid is not correct. Therefore, the suit is liable to be dismissed. 6. On the basis of the above pleadings, the following issues have been framed by the trial Court, for trial: 1) Whether the plaintiff and 1st defendant are the members of a joint family? 2) Whether there was ancestral inclueous to acquire the properties? 3) Whether the partition between the plaintiffs and first defendant concerning items 1 to 6 said to have been taken place within a year from the date of death of their father Gangappa as averred in para-4 of the written statement of D-1 is true? 4) Whether items 7 to 19 are the self acquisition of the 1st defendant? 5) Whether B schedule items are available for paritition? 6) Whether the suit is bad for non-joinder of necessary parties i.e., the other co-sharers as averred in para-9 of the written statement? 7) Whether the plaintiff is entitled to partition, if so, to what share in all the properties? 8) To what relief? Subsequently, the following additional issue was framed on 03-11-1999. Whether the item No.8 is available for partition or not? 7. On behalf of the plaintiffs, PWs.1 to 4 were examined and marked Exs.A-1 to A-12. On behalf of the defendants, DWs.1 to 4 were examined and marked Exs.B-1 to B-8, and Exs.X-1 to X-3. 8. After considering the evidence on record, the learned Senior Civil Judge, Madanapalle, decreed the suit of the plaintiffs. Aggrieved by the said judgment and decree, the present appeal is filed. 9. The points that arise for consideration are: 1) Whether the earlier partition pleaded by the 1st defendant is true? 2) Whether item No.7 and 18 are the self acquired properties of the 1st defendant and not liable for partition? 3) Whether the judgment and decree passed by the learned Senior Civil Judge, Madanapalle, is legal and sustainable? 10. POINTS: There is no dispute between the parties about the relationship and also about the fact that their father got item Nos. 1 to 6 of the schedule under a registered partition deed with his brother, which is marked as Ex.A-1, dated 01-08-1973. According to the case of the 1st defendant, one year after the death of their father Gangappa, the division has taken place and the items 1 to 6 were partitioned between him and the plaintiffs 1 and 2 and thereafter, they were living separately and other acquisitions were from his own earnings. The lower Court has not accepted the version of the 1st defendant and found that there is no proof of division. Even the oral evidence was found to be not satisfactory. Acording to the case of the 1st defendant, Gangappa died about 15 years prior to the suit, which will take to in or about 1980, when the written statement was filed. According to him, one year thereafter, the partition has taken place. Therefore, if the properties were divided between the brothers and each of them were in enjoyment of their specific shares, the revenue records and cultivation accounts would have clearly proved that fact. But, the 1st defendant has not filed any such document. 11. Further more, the 1st defendant has not examined any Village Officer or neighbours to prove the separate enjoyment of the property. In fact, there is also no clear plea in the written statement as to how the properties were divided into three items between the plaintiffs and the 1st defendant. Therefore, in the absence of such evidence supporting the claim of the 1st defendant for partition, the lower Court has rightly rejected the contention of the 1st defendant. 12. But, however, it is the contention of the counsel for the appellant that the documents Exs.B-5 to B-7 clearly go to show that the 1st plaintiff has sold some of the properties and therefore, it could only by virtue of a partition. This aspect was considered by the lower Court. Ex.B-5 is the sale deed, dated 26-09-1990, where-under an extent of 17 1/10 cents in item No.2 was said to have been sold by the 1st plaintiff and in fact, this item is also part of the schedule property and if any alienation was affected, it will go to the share of the 1st defendant. Ex.B-5 does not show that the property was got by the 1st plaintiff in division with his family members. Therefore, much credence cannot be given. So far as the Exs.B-6 & B-7 are concerned, they were of year 1975 by which date, there was no partition between the parties and by that date, their father was said to be alive, and therefore, from Exs.B-6 & B-7 no inference of a partition between the parties can be drawn. In fact, the property under Ex.B-6 is not the schedule property and the 1st defendant has not asked for inclusion of this property. So far as Ex.B-7 is concerned, it relates to purchase of item No.18 in favour of the 1st plaintiff and it is subject matter of the suit and it is also included for division. Therefore, from Exs.B-5 to B-7 nothing could be inferred to probablise the plea of division as claimed by the 1st defendant. 13. Further-more, under Ex.A-12, which is dated 28-01-1995, both the plaintiffs and 1st defendant have executed a registered sale deed jointly with regard to the land in Sy.No. 152/2 to an extent of 43 cents. The recitals in this document clearly go to show that the property was inherited by all the brothers and it is joint property. Therefore, even by 1995, prior to filing of the suit, the plaintiffs and the 1st defendant executed the sale deed jointly. In fact, the voters’ list, which is marked as Ex.A-7(a), shows that all the members were living together in the same house. This may not be inclusive evidence since the family members even after partition can live in a same house under different portions. But, the question before the Court is as to whether from the document relied on by the 1st defendant, the earlier partition can be inferred. As stated above, Exs.B-5 or B-6 does not throw any light on the plea of the 1st defendant. On the other hand, Ex.A-12 destroys his plea of earlier partition. The factum of partition can be proved by better evidence and the particulars are not pleaded and proved. Therefore, the learned Senior Civil Judge has rightly rejected the claim of the 1st defendant and I do not find any infirmity in the judgment of the lower Court. Accordingly, the points are answered. 14. In the result, the appeal is dismissed. Each party shall bear their own costs. Date: 23-02-2011. ________________________ N.R.L.NAGESWARA RAO, J INL