THE HONOURABLE SRI JUSTICE A.GOPAL REDDY S.A.No.561 of 2011 Date of Order: 25-11-2011 Between: Gumpena Rama Rao ..Appellant And Gumpena Nageswara Rao and another ..Respondents The Court made the following Judgment: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY S.A.No.561 of 2011 Oral Judgment Plaintiff filed this Second Appeal against the judgment and decree of the VII Additional District Judge, Gudiwada in allowing appeal preferred by the defendants in A.S.No.411 of 2010, dated 22- 02-2011 while setting aside the judgment and decree of the Additional Senior Civil Judge (FTC), Gudiwada made in O.S.No.411 of 2005, dated 19-10-2009 and dismissing the suit of the plaintiff filed for cancellation of sale deed bearing document No.546/2005, dated 05- 11-2005. Plaintiff filed the above suit for cancellation of the sale deed dated 05-11-2005 stating that himself and 2nd defendant are sons of 1st defendant; he purchased the plaint schedule property with his self- acquisition under the registered sale deed No.1924/1980, dated 12- 09-1980 and ever since he is in peaceful possession and enjoyment of the said property. The 1st defendant clandestinely executed the sale deed dated 05-11-2005 without any authority though he is in continuous possession of the property showing recital in the sale deed that possession was delivered. As the plaintiff is not worldly wise innocent, taking advantage of the same, the first defendant executed the sale deed in favour of 2nd defendant, which is liable to be cancelled. The 2nd defendant filed written statement which was adopted by the 1st defendant stating that the plaintiff is not innocent but intelligent and shrewd and entire litigation started at the instance of his wife and in laws, who are trying to grab the joint family properties of the 1st defendant. Plaintiff and defendants 1 and 2 constitute Hindu Undivided Joint Family possessing properties. During the partition among the plaintiff and defendants 1 & 2 and other family members the properties were divided by metes and bounds and subsequently reduced in writing on 14-10-1984. The plaint schedule property was purchased with the ancestral nucleus and treated as joint family property till it was partitioned. The plaintiff has no employment or prospective business to pay consideration for the property purchased under the sale deed by him. The entire agricultural operations in the plaint schedule property is being carried out by the 1st defendant, who got the plaint schedule property under the partition list and has title to convey the same. After sale they are being done by the 2nd defendant. On the respective pleadings necessary issues were settled and trial court by the impugned judgment decreed the suit of the plaintiff holding that the plaintiff failed to prove that the plaint schedule property is self acquired and hence it is his separate property. At the same time when the defendants failed to prove alleged partition of joint family properties and allotment of plaint schedule properties to the 1st defendant, he alone cannot alienate the same without the consent of other coparceners even to the extent of his share. On appeal being filed the lower appellate court after taking into consideration the finding of the trial court it was held that the suit schedule property was purchased with joint family funds and it is joint family property which has become final as no appeal has been filed against the finding of the trial court. When P.W.1 has no independent source of income by the date of Ex.A1—sale deed, the lower court rightly observed that the plaintiff was only 18 years boy and no evidence was let it that he is having independent income of his own. The first defendant and his elder brother are acquiring properties jointly out of the joint family funds. P.W.1 also stated in his evidence that his senior paternal uncle purchased the suit property in his name in the year 1980. With the said admission the lower appellate court held that the suit schedule property is the joint family property and it was allotted to the first defendant in the partition and partition list—Ex.B1 executed by all members and Ex.B2—confirmation letter was executed by plaintiff in respect of the properties allotted to the first defendant. When the plaintiff has not specifically denied the signatures on Ex.B2— document, as they are not that of himself and he could not identify the signatures on such document and the plaintiff, who filed Ex.A4 dated 10-03-1998, executed himself and defendants 1 and 2 conveying some property to third parties, the trial court recorded that there is no partition and plaintiff failed to file pattedar pass books and any other documents regarding the suit schedule property or the property which fell to his share and the plaintiff admitted that he is enjoying some property exclusively when there was partition of joint family properties. Plaintiff is enjoying all properties and when his property was acquired by Government he received the compensation exclusively stating that it is not joint family property. There is nothing from plaintiff’s side that the suit schedule property was kept joint and he has a share in it. He received compensation which fell to his share also shows there was division in the property and accordingly allowed the appeal. Admittedly, plaintiff and defendants 1 & 2 constitute Hindu Undivided Joint Family; the property which fell to the share of defendant No.1 was conveyed to defendant No.2 under the sale deed which is now sought to be cancelled. D.W.1 (defendant No.2) has stated that the plaint schedule property was joint family property and it was allotted to defendant No.1. D.W.2 and D.W.3—younger sister of plaintiff and second defendant and D.W.4 also stated the same fact. Under Ex.B1—partition list, dated 14-10-1984 the properties were allotted to first defendant, plaintiff, 2nd defendant and two daughters of first defendant. The suspicion entertained by the trial court with regard to document—Ex.B1, why it was obtained by the defendants from the plaintiff alone for the reasons best known to them to confirm that first defendant got some properties in partition of the year 1984. But the fact remains that the plaintiff is enjoying some property exclusively and his evidence is that he claimed compensation for the land acquired by the Government for Polavaram canal and it is not joint family property nor part of it; it is his exclusive property and he received the compensation. When the plaintiff is not claiming the suit schedule property as a joint family property and he is having a share in it, by taking advantage of the document stands in his name he wants to claim rights in the property. The trial court recorded a finding that the suit schedule property is a joint family property. Therefore, as long as the said finding is there, appellant/plaintiff cannot seek cancellation of the said sale deed. In view of the same, the finding recorded by the lower appellate court on facts does not suffer from any manifest illegality warranting interference. The Second Appeal is accordingly dismissed. No order as to costs. _________________ A.GOPAL REDDY, J. 25-11-2011 Murthy