IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD FRIDAY, THE TWENTY NINTH DAY OF APRIL, TWO THOUSAND AND ELEVEN PRESENT THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT No. 186 OF 2005 BETWEEN: B.Sekhar Reddy …APPELLANT AND B.Swamy Reddy and others …RESPONDENTS The Court made the following: THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO APPEAL SUIT No. 186 OF 2005 JUDGMENT: The 2nd claimant in O.P.No.204 of 2003 on the file of Senior Civil Judge, Wanaparthy, is the appellant herein. 2. The reference under Section 30 of the Land Acquisition Act was made to the learned Senior Civil Judge, Nagar Kurnool. An extent of Acs.15.00 Gts., of land in Sy.No.232 of Laxmipally village was acquired by the Government and an award enquiry was conducted and a compensation of Rs.1,75,871/- was determined. During the course of enquiry, respondents Nos. 1 to 3, who are the brothers, appeared. Respondents Nos. 2 and 3 claimed that there was a settlement of the family properties and in pursuance of the settlement, they are alone entitled for the compensation equally, whereas the 1st respondent claimed that he is also entitled for 1/3rd share along with other brothers. As Land Acquisition Officer found that there is a title dispute the matter was referred to the Senior Civil Judge, Nagar Kurnool. After the reference before the Senior Civil Judge, the 1st respondent filed a counter contending that the acquired land belongs to his father and he has got equal share with the other brothers and therefore, he shall be paid compensation. The appellant herein is supported by another brother the 3rd respondent and according to them, there was a division of the properties and on 21.08.1985 all the three brothers and the mother settled their joint family properties under a partition list and in pursuance of it, the 2nd and 3rd respondents are alone entitled to the amount of compensation. It was also further pleaded that the parents were given some other properties at Laxmipally and Peddadagada village. Therefore, respondents Nos. 2 and 3 claimed that the 1st respondent, who is their brother is not entitled to the claim. 3. No witnesses were examined on behalf of Land Acquisition Officer and no documents were marked. On behalf of the respondents, the 1st respondent is examined as Rw.1. On behalf of the respondent No.2 RWs.2 to 4 were examined and on behalf of respondent No.3 after his death the legal representatives respondents Nos. 4 to 7 were added and RWs.5 and 6 were examined and Exs.R.1 to R.4 were marked. 4. After considering the material on record, the learned Senior Civil Judge, Wanaparthy did not accept the document Ex.R.2 dated 21.08.1985 relied upon by the respondents Nos. 2 and 3 and did not accept the right of the respondents Nos. 2 and 3 alone and granted equal share for all the three brothers. Aggrieved by the said judgment and decree, the present appeal is filed. 5. The points that arise for consideration are: 1) Whether there was a family arrangement where-under the acquired land was given to the share of respondents Nos. 2 and 3 and the 1st respondent has no right or interest in the property? 2) Whether the order of the lower Court is legal and sustainable? 6. POINTS: The learned counsel for the appellant supported by the counsel for the respondents Nos. 3 to 6 contends that the factum of partition is admitted in the evidence of RW.1, who is the respondent No.1, before the lower Court and even if the document Ex.B.2, dated 21.08.1985 cannot be received in evidence as a deed of partition for want of registration, it can be looked into as a family arrangement and the contents therein clearly establishes the rights of the respondents 2 and 3 in the lower Court as to the persons entitled for the compensation. 7. Since the appellant is pleading earlier partition in the form of a family arrangement assuming to be that a registered document is not required and a partition can be proved by oral evidence, the Court has to consider whether there is any evidence of such a nature before the Court. In cross-examination of the 1st respondent as RW.1 it is true that he has stated that there was a partition in the year, 1980 and he got about Acs.18.00 Gts., of land to his share at Peddadagada village and the 2nd respondent agreed about 19 to 20 acres of land at Laxmipally, Koppunur and Jettiprolu villages and the 3rd respondent has got Acs.20.00 Gts., or Acs.21.00 Gts., of land situated at Laxmipally and Jettiprolu villages. This evidence is sought to be relied upon as an admission of earlier partition and also to the effect that the 1st respondent did not get any property at Laxmipally village where the acquired lands are located. The fact remains that from the evidence of RW.1, it is quite clear that the father was said to have been given lands at Laxmipally village apart from house property. The evidence on record does not show as to what are the properties owned by their family at different places and as to what are the properties particularly situated at Laxmipally village. If the evidence of RW.1 is to be taken into consideration, the respondents Nos. 2 and 3 in the lower Court got the lands at Laxmipally village and the particulars of the lands are not mentioned. In fact, at this stage, it is useful to refer to the counter of the appellant wherein it has specifically stated that some of the properties situated at Laxmipally village and Peddadagada village are allotted to the parents. Therefore, the allotment of the lands at Laxmipally village to the parents is admitted. If such is the case even if Ex.B.2 is to be excluded it is for the claimants to prove as to what was the land allotted to the parents at Laxmipally village. In fact, the evidence adduced on behalf of the appellant or on behalf of the other brother Venkat Reddy lacks clarity on this aspect. Further-more, the father is said to have given statement during the award enquiry and in para No.2 of the counter of the appellant, it was pleaded the father of the parties gave a statement admitting the status of separate living and also list of partition and the 1st respondent in the lower Court also appeared and admitted separate living. 8. The best evidence is the statement of the father, which was recorded during the award enquiry if such statement is there. But, whatever for the reasons best known to the appellant and supported by other brother Venkat Reddy, the said statement was not marked during the enquiry in the lower court. Therefore, much reliance cannot be placed on the claim of the appellant that the property at Laxmipally has not gone to the share of the father. Added to that, even assuming to be that the Ex.B.2 is a family arrangement not requiring any registration and it can be looked into, the fact remains that it was not signed by the father, who is the eldest member of the family. In the absence of his consent or acceptance of the alleged understanding contained in Ex.B.2, the appellant cannot contend that it is a family arrangement creating the rights for the individuals. Therefore, this document is also an inchoate document since the father was not a party to the document. Even the counter of the appellant is quite clear that the arrangement was effected with the mother in the presence of the father at the time of the alleged arrangement was not even pleaded in the counter of the appellant. 9. Therefore, all these circumstances clearly throws any amount of doubt about the genuineness of the alleged partition and the document Ex.B.2. Even otherwise to prove that after such oral arrangement between the family members any separate enjoyment has been continued by the brothers, there is absolutely no evidence on record. Therefore, when once the appellant fails to prove that the family property has fallen to his share and the share of the other brother Venkat Reddy, then naturally all the brothers will be having equal share irrespective of the fact whether there was earlier partition or not. 10. Therefore, in view of the above circumstances, the order passed by the learned Senior Civil Judge, Wanaparthy, does not suffer from any infirmity and the appellant has failed to prove that he and the 2nd respondent alone are entitled for the claim in view of Ex.B.2 or under any legal and binding arrangement between the parties. Accordingly points are answered. 11. In the result, the appeal is dismissed. Each party shall bear their own costs. ________________________ N.R.L.NAGESWARA RAO, J Date: 29-04-2011. INL