HON’BLE SRI JUSTICE B.SESHASAYANA REDDY AND HON’BLE SRI JUSTICE P.DURGA PRASAD C.C.C.A.No.15 of 2001 22nd December, 2010 Between :- A.Surender and others .. Appellants And A.Madhava Rao and others .. Respondents HON’BLE SRI JUSTICE B.SESHASAYANA REDDY AND HON’BLE SRI JUSTICE P.DURGA PRASAD C.C.C.A.No.15 of 2001 JUDGMENT:- (Per B.Seshasayana Reddy,J) This appeal is directed against the Judgment and Decree dated 21-1-1999 in O.S.No.1183 of 1993 on the file of the IV-Senior Civil Judge, City Civil Court, Hyderabad, whereby and whereunder, the learned Senior Civil Judge dismissed the suit filed by the plaintiffs for partition and separate possession of 3/4th share in the suit schedule properties. 2. The plaint averments in brief are:- The plaintiffs are sons of the 1st defendant and they constitute a Hindu Undivided Joint Family. Defendant No.2 is the younger brother of defendant No.1. The mother of the plaintiffs by name Pentamma died in the year 1977. The defendant No.1 brought Sattyamma and the said Sattyamma started living with defendant No.1. The 1st defendant collected amounts from the 1st plaintiff and had taken all gold, silver and valuable articles of late Pentamma and purchased a house bearing No.1-3-1063 and 1-3-904/1, Kavadiguda, Hyderabad. After the marriage of plaintiffs No.1 and 2, they have been living separately from the 1st defendant in a portion of the same house. Plaintiff No.3 is a bachelor and is staying with defendant No.1. Defendant No.1 collected all gold and valuable articles from the spouses of plaintiffs 1 and 2 for the purpose of joint family development. Apart from it, the plaintiffs No.1 and 2 contributed a sum of Rs.20,000/- each to D.1 for the purpose of construction of the building. D.1 after construction of the building, changed his attitude and transferred all the properties in the name of Sattyamma, who has been arrayed as D.3. The defendants adopted illegal acts to evict the plaintiffs from the joint family house and once they tried to burn the wife of 1st plaintiff. The plaintiffs filed a complaint with the police and the complaint ultimately ended in a compromise. The plaintiffs agreed to pay a sum of a sum of Rs.400/- to Rs.500/- per month to the defendants for the purpose of family funds or as rent for the portion of the house in their occupation. When the defendants made attempts to evict them highhandedly, they filed the suit and obtained injunction in I.A.No.1931/1990 in O.S.No.1083/1990 on the file of the IX Assistant Judge, City Civil Court, Secunderabad. The defendants filed R.C.No.753/91 in the Court of the I-Additional Rent Controller, Hyderabad. The 1st defendant transferred the house property in the name of 3rd defendant. They demanded partition and separate possession of their share. Since the 1st defendant did not concede the demand, they filed the suit for partition and separate possession of 3/4th share in the suit schedule properties. 3. D.1 to D.3 filed written statement. They pleaded in the written statement that ‘A’ schedule house is the self-acquired property of D.3 and she purchased the house of her own earnings and that the plaintiffs have not contributed any amount either for purchase or for development of the suit schedule properties. The 2nd defendant purchased ‘B’ schedule property from R.Sarojini and R.Supriya under a registered sale deed with his own funds. D.2 and D.3 filed eviction case against the plaintiffs and got eviction order in R.C.No.753/1991. The injunction suit filed by the plaintiffs ended in dismissal. 4. The Trial Court framed the following Issues for trial:- 1) Whether plaintiffs are entitled ft partition and separate possession of the suit schedule properties as prayed for? 2) Whether 'A' schedule and 'B' schedule properties are absolute properties of defendants 2 and 3 and not liable for partition as averred by the defendants? 3) To what relief? 5. On behalf of the plaintiffs, they got themselves examined as P.W.1 to P.W.3. They did not adduce any documentary evidence. On behalf of the defendants, ‘2’ witnesses were examined and ‘8’ documents were marked. 6. Learned Senior Civil Judge, on considering the evidence brought on record and on hearing the learned Counsel appearing for the parties, came to the conclusion that the plaintiffs failed to establish that the suit schedule properties are acquired by the joint family comprising themselves and the defendants No.1 and 2 and thereby proceeded to dismiss the suit by Judgment dated 21-1-1999. Hence, this appeal by the plaintiffs. 7. Heard learned counsel appearing for the appellants/plaintiffs and perused the Judgment impugned in the appeal. 8. Learned counsel appearing for the appellants/plaintiffs submits that the Trial Court has not correctly appreciated the evidence brought on record and thereby erred in recording a finding that the suit schedule properties are not joint family properties. 9. The only issue that calls for adjudication in this appeal is whether the suit schedule properties are acquired by the joint family comprising of the appellants/plaintiffs and D.1? 10. Indisputably, the joint family has no ancestral nucleus. D.1 is the father of the appellants/plaintiffs. Ex.B.2 is the registered sale deed of the year 1967 in respect of 'A' schedule property under which D.3 purchased the same. After purchase, she obtained loan from one B.Rukmini and constructed a building therein. Ex.B.1 is the original sanction plan. By that date of purchase of 'A' schedule property under the original of Ex.B.2, the plaintiffs were not the earning members. The Trial Court discussed this aspect in para 16 of the Judgment, which reads as hereunder:- “D.W.1 the alleged second wife of first defendant categorically stated that the 'A' schedule property belongs to her and 'B' schedule property belongs to her brother-in-law the second defendant. She also stated that she purchased the property 32 years back while it was open site and one year thereafter she started construction with her own funds and by obtaining loan from one B.Rukini. She further stated that plaintiffs have no contributed any single pie at the time of construction of 'A' schedule property. She purchased the property by virtue of registered sale deed and constructed the house after getting sanction from MCH under Ex.B.1 plan. Ex.B.2 is the certified copy of the sale deed of the year 1967. D.W.1 is cross-examined at length but her evidence was not damaged or shattered. She categorically denied that after the death of her sister, she got her jewellery and with that jewellery she purchased the suit property in her name. On a careful perusal of the evidence of D.W.1 coupled with the Ex.B.1 and Ex.B.2 together with the admissions made by P.W.1 to P.W.3, I am of the opinion that the 'A' schedule property is the exclusive property of third defendant.” 11. The plaintiffs having taken the plea that the 'A' schedule property came to be purchased out of the amounts contributed by them or by the sale of gold jewellery brought by their respective wives, failed to substantiate their plea. The 1st plaintiff while being examined as P.W.1 admits in cross-examination that D.3 is second wife of his father – D.1 and dismissal of his injunction suit being O.S.No.1083/1990 and also further appeal. He also admits that the Rent Control proceedings initiated by D.2 went against him ordering his eviction from the plaint ‘B’ schedule property. The plaintiffs failed to establish their plea that ‘A’ schedule property belongs to the joint family property. Therefore, the Trial Court is justified in recording a finding that the plaint 'A' schedule property exclusively belongs to D.3 and the plaintiffs are not entitled to claim any share in the said property. With regard to 'B' schedule property, the 2nd defendant while being examined as D.W.2 stated that it is his self-acquired property and he purchased it in the year 1983 from one Supriya. He also stated that he sold the said property to one Anjamma about 25 years back and the said Anjamma sold the same to Govind Das Malani, who in turn sold to Padma Rao. The sale transactions stated by D.W.2 categorically indicates that at no point of time, the said property construed as joint family property and instead, it was the self-acquired property of 2nd defendant. Therefore, the plaintiffs also failed to prove that 'B' schedule property belongs to the joint family. The Trial Court considered the oral and documentary evidence brought on record in right perspective and recorded a finding that the appellants/plaintiffs failed to establish their claim over the suit schedule properties. We do not see any valid ground to interfere with the Judgment impugned in the appeal. 12. Accordingly, the appeal is devoid of merits and the same is hereby dismissed with costs. ________________________ B.Seshasayana Reddy,J ______________________ P.Durga Prasad, J 22nd December, 2010 smr