*THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY +Second Appeal No.1305 of 2008 % Dated 23.12.2011 # Gotika Shankar and others. ….Appellants $ Gotika Mallaiah and others. ….Respondents ! Counsel for the appellants : Sri A.Suryanarayana ^ Counsel for respondent No.1 : Sri Y.Ramarao < GIST: > HEAD NOTE: ? Cases referred: THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY Second Appeal No.1305 of 2008 JUDGMENT: The appellant, respondents 1,2 and 4 and the husband of the 3rd respondent are brothers. The 2nd respondent, by name Gotika Narsoji, filed O.S.No.90 of 1993 in the in the Court of Junior Civil Judge, Manthani against the appellant and respondents 1,3 and 4, for partition of 16 shops said to have been constructed over an area of 14 guntas of land in the limits of Manthani Gram Panchayt and allotment of one-fifth share to him. The appellant figured as defendant No.3 in the suit. The 2nd respondent pleaded that the 1st respondent (D1) purchased 7½ guntas of land, the husband of the 3rd respondent (D2) purchased 4½ guntas and himself (D3) and 4th respondent (D4), an extent of 2 guntas; and that with the contributions made by all the co-owners, the shops were constructed. It was also alleged that permission was obtained from the Gram Panchayat in the name of ‘Gotika Narsoji and Brothers’ and that the investment was made in such a way that the inequalities in the shares in the land of the co-owners are balanced. He alleged that the 1st respondent initiated steps with the gram panchayat claiming the entire property exclusively for himself. The main contest to the suit was by the 1st respondent. The 3rd respondent remained ex parte. Though the appellant and the 4th respondent filed written statements, they did not depose. The trial Court passed a preliminary decree through judgment, dated 05.11.2004 allotting 1/5th share in favour of the 2nd respondent i.e. plaintiff. No shares were allotted to any other parties. The 1st respondent (D1) filed A.S.No.2 of 2004 in the Court of Senior Civil Judge, Manthani. He pleaded that the suit schedule property belongs to him exclusively and that the joint family properties were already partitioned though a decree passed in O.S.No.22 of 1993. The lower appellate Court allowed the appeal, through judgment, dated 11.10.2006. Hence, this second appeal. Heard the learned counsel for the appellant and the learned counsel for the 1st respondent. There is no representation for the other respondents. The relief of partition and allotment of 1/5th share was claimed in the suit, by the 2nd respondent herein, one of the brothers. Before the trial Court, P.Ws.1 to 3 were examined and Exs.A.1 to A.11 were filed, on behalf of the 2nd respondent. The 1st respondent examined D.Ws.1 to 6 and filed Exs.B.1 to B.96. The trial Court passed a preliminary decree allotting one-fifth share to the 2nd respondent alone. However, the 1st respondent alone filed A.S.No.2 of 2004 in the Court of Senior Civil Judge, Manthani. At the stage of appeal, the 1st respondent filed some more documents, marked as Exs.B.97 to B.104. The appeal was allowed setting aside the preliminary decree. The parties to the suit are four brothers and the widow of another brother. If there existed joint family property, either left by their common ancestor or acquired by them in joint, partition could certainly have been ordered. The record discloses that the 2nd respondent, who filed the present suit, earlier filed O.S.No.22 of 1993 against his brothers and sister-in- law, for partition of several items of joint family properties. The suit schedule property in O.S.No.90 of 1993 was not included in it. A preliminary decree was passed and it was followed by a final decree also. O.S.No.90 of 1993 was filed claiming that shops were constructed on different extents of land acquired by the parties themselves. It means that the status of the property was not of coparcenery or an asset of the joint family. Even according to the appellant and the 2nd respondent, the 1st respondent owned about 65%, the 3rd respondent 20% and the 4th respondent 15% in the land, on which shops are constructed. The principal contest was between the 2nd respondent (plaintiff) and the 1st respondent (D1). Though the appellant and the 4th respondent filed written statements, they did not enter the witness box. The 3rd respondent remained ex parte. Obviously taking thee aspects into account, the trial Court restricted the preliminary decree only to the allotment of one-fifth share to the 2nd respondent. It may be true that in a suit for partition, the distinction between plaintiff and defendant virtually becomes insignificant and each party can pursue the matter as though he is the plaintiff or defendant, as the case may be. However, irrespective of the capacity, in which an individual figures in the suit, he must put forward his contention either claiming share in the property or opposing the very partition. Unless he makes his stand clear, he cannot be expected to be allotted any share, particularly when the partition is not that of a coparcenery. When partition of a joint property is claimed, the persons who are shown as defendants are supposed to make their stand clear, so that the Court would know as to where they stand vis-à-vis the said joint property. By remaining ex parte, the appellant virtually gave up his case and left the litigation to be fought between the plaintiff and the 1st defendant. Assuming that there was any basis for the appellant to remain ex parte, expecting allotment of share on par with the plaintiff, at least when the preliminary decree was confined to the 2nd respondent alone, the appellant was supposed to file an appeal or at least advance contentions in support of his case in the appeal preferred by the 1st respondent. Even that was no done. On merits also, the appellant stands on a very weak footing. According to the 2nd respondent, 16 mulgies are constructed over an area of 14 guntas. He pleaded that 7½ guntas was purchased by the 1st respondent and 4½ guntas by the 3rd respondent. However, the 3rd respondent did not contest the matter, nor did she claim any share. The basis for the appellant or for that matter, the 2nd respondent to claim share in the suit schedule property was that an extent of 2 guntas owned by them and the 4th respondent herein, which was utilized in construction of the mulgies. Except making a statement to that effect, they did not establish their plea. Further, the record discloses that the so-called 2 guntas of land owned by the appellant, respondents 2 and 4 was shown to be part of schedule in O.S.No.22 of 1993. At any rate, the appellant could have succeeded, if only he pleaded and proved to the satisfaction of the Court that he contributed funds for construction of the mulgies. When the appellant did not enter the witness box, much less did he file any document, there was absolutely no basis for his claim. Therefore, the second appeal is dismissed. There shall be no order as to costs. __________ 23.12.2011 Note: L.R.Copy to be marked. (B/o) JSU THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY Second Appeal No.1305 of 2008 Date: 23.12.2011 JSU