IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD TUESDAY, THE FOURTEENTH (14TH) DAY OF SEPTEMBER, TWO THOUSAND AND TEN Present: Hon’ble Sri Justice G.V.SEETHAPATHY AS No.355 of 1994 Between: K.Krishna Murthy & others … Appellants And: Dathu Rama Rao & another … Respondents THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY A.S.No.355 of 1994 JUDGMENT: This appeal is directed against the judgment dated 29.12.1993 in O.S.No.41 of 1989 on the file of the Sub-Court, Nizamabad, wherein, the suit filed by the appellants herein for partition and separate possession of the joint family property, shown in the plaint schedule, was partly decreed directing partition of item 2 of the plaint ‘C’ schedule among the plaintiffs 1 to 3 and Nagamani, equally and rest of the suit claim was dismissed regarding the other properties. 2. Heard the learned counsel for the appellants/plaintiffs. None appeared for the respondents/defendants. Perused the record. 3. The case of the appellants/plaintiffs in brief is as follows: The first respondent-first defendant had two wives, Nagamani and Sarada. The appellants, who are the plaintiffs, are the sons of first defendant through Nagamani; 2nd respondent-2nd defendant is the son of first defendant through 2nd wife Sarada. The plaintiffs and defendants constituted as a joint family. The plaint schedule properties are the joint family properties. The first defendant neglected to look after the plaintiffs and bent upon giving the property to the second wife and second defendant. The plaintiffs have been demanding the partition and separate possession of their share, but the first defendant has been postponing the same on some pretext or the other. When the plaint ‘A’ schedule lands were acquired, reference was made to Civil Court in OP No.47 of 1986, the plaintiffs filed IA No.256 of 1987 to get themselves impleaded as claimants for receiving the compensation. The first defendant contested the said petition and it was dismissed on 08.03.1989 with observation that the plaintiffs can file separate suit for partition. Hence, the present suit. The plaintiffs and the defendants are entitled to 1/5th share each in the plaint schedule property. 4. The defendants filed written statement contending in brief as follows: Smt.Nagamani-first wife of first defendant filed a petition to implead herself and plaintiffs 2 and 3, as parties to OP No.47 of 1986. In the said application, first plaintiff was stated to be mentally disabled and Nagamani sought permission to represent him as guardian and the first plaintiff is not competent to sign the plaint, as he is mentally unsound. The said application was dismissed by the Additional District Court, Nizamabad. The plaintiffs were never in joint possession of the plaint schedule properties and the plaintiffs are not entitled for a share in the suit properties. As Nagamani did not come to first defendant’s house to look after the first defendant’s mother, who was seriously ill, the first defendant married another woman, Sarada, as second wife. There after there were no contacts between first defendant and his first wife or her sons. The plaint A schedule properties were acquired and compensation was awarded in favour of first defendant and Nagamani filed objection for the same and later she has withdrawn the objections, as she was given landed property and 30 thulas of gold through caste elders, who settled the matter. The house mentioned in the B schedule as item 1 is in the name of Nagamani, which was given by her parents at the time of her marriage. The first defendant had no house. Item 2 of the plaint B schedule i.e., the land in Sy.No.366 situated in Vannel village, was disposed of by the first defendant for family necessities to one Chinna Muttenna. The plaintiffs’ mother and the plaintiffs were paid their share in it. In item 4, first defendant got only 5 guntas, which was submerged in Pochampad project and the compensation was meager and it was spent for family necessities. Item 1 in C schedule in Sy.No.2 was also sold away to one S. Narasimsimhulu, resident of Kotha Kustapuram and the amount was spent for family necessities. Item 2 of C schedule was given to first wife Nagamani towards her share before the caste elders. The property shown in D and E schedules is incorrect. The defendant is not having cash of Rs.1.5 lakhs. The suit was filed with a mala fide intention to usurp the compensation amount granted by the Additional District Court, Nizamabad. The disputes relating to partition and family settlement were settled before the caste elders. The plaintiffs are therefore not entitled for any share in the suit property. 5. On the strength of the pleadings, the trial Court framed the following issues for trial. 1. Whether plaintiff No.1 is mentally disabled and whether he is competent to sign plaint? 2. Whether the Court fee paid is sufficient? 3. Whether property shown in A schedule is property of D.1? 4. Whether item No.1 of B schedule and D schedule property exists and is joint family property? 5. Whether item No.1 of B schedule is exclusive property of Sharabadi? 6. Whether Sy.No.366 and Sy.No.2 (Item No.2 of schedule C) are sold and amounts utilized for welfare of family? 7. Whether item No.II of C schedule is given to Nagamani towards her share? 8. To what relief the parties are entitled to? 6. During trial, PWs.1 and 2 were examined and Exs.A.1 to A.2 were marked on behalf of the plaintiffs. DWs.1 to 3 were examined and Exs.B.1 to B.3 were marked on behalf of the defendants. 7. On a consideration of the evidence available on record, the trial Court held the issues 1 and 2 in favour of the plaintiffs. On issue No.3, the trial Court held that the plaint A schedule property belongs to first defendant and it was already given to Nagamani, first wife of first defendant, the plaintiffs 1 to 3 are not entitled for any share therein; on issue No.4, the trial Court held in favour of the plaintiffs as the settlement already took place and properties have already been sold away long back and the amount has been spent for the family necessities; on issue Nos.5 and 6, the trial court held that the item 1 of C schedule property was the exclusive property of Sarada and item 2 of C schedule property was also sold and the amounts were utilized for the welfare of the family; on issue No.7, the trial Court held that item 2 of C schedule exclusively belongs to Nagamani and the plaintiffs being legal heirs of Nagamani, they are entitled for 1/4th share each and the remaining 1/4th share pertaining to their mother Nagamani and accordingly, the suit was decreed for partition and separate possession insofar as item 2 of C schedule is concerned and the suit was dismissed regarding other items. Aggrieved by the same, the plaintiffs filed the present appeal. 8. The relationship among the parties is not in dispute. The plaintiffs are the sons of first defendant, through first wife Nagamani and 2nd defendant is the son of first defendant through 2nd wife Sarada. According to the plaintiffs, all the suit properties are the joint family properties. The first defendant disputed the same. He claims that the plaint A schedule property is his exclusive property and the same was sub-merged in Pochampadu project and after enquiry, an award was passed in his name, for which, his wife Nagamani raised objection claiming a share in the compensation amount and her claim was settled by paying some gold and cash to her and also giving some lands situated at Kotha Kustapuram village and thereupon, she withdrew her objections. DWs.2 and 3, who are the independent witnesses, supported the said version of DW.1. The trial Court accepted the evidence of DWs.2 and 3. The plaintiffs have not adduced any evidence to show that the plaint A schedule land belongs to the joint family. The fact that the objection raised by Nagamani for payment of entire compensation to first defendant, her claim was settled through the intervention of the caste elders. In the absence of any evidence to show that the schedule lands belongs to the joint family and award was passed in favour of first defendant after settling the claim of Nagamani, the trial Court is justified in holding that the plaintiffs failed to establish their claim in respect of plaint A schedule lands. 9. Item 1 of B schedule is claimed to be exclusive property of Sarada, 2nd wife of first defendant. The said item was sold to one S. Narasimhulu. The said item was also submerged in Pachampadu project. There is nothing on record to show that the said item belongs to the joint family at any time. According to the first defendant, the land in Sy.No.366 of Vannel village, shown as item 2 of plaint B schedule, was disposed of to one Chinna Muttenna for maintenance of the family. The purchaser is not impleaded as a party. It is also in the evidence of DW.1 that item 3 of the plaint B schedule i.e., 1½ acres of land was sold away seven or eight years prior to filing of the suit for Rs.10,000/- and item 1 of C schedule i.e., Ac.2.20 guntas of land was sold for Rs.10,000/- and item 2 an extent of 300 sq. yards of house site belongs to Nagamani herself. He filed sale deeds Exs.B.1 to B.5 showing the alienations made by him. None of the purchasers of any items is impleaded though alienation has taken place long prior to filing of the suit. There is nothing on record to show that the alienations are bad or for any Avyavyvaharika purpose. Admittedly, first defendant was the karta of the family and as such, he was entitled to sell the family properties for legal necessities and family welfare. The plaintiffs have neither impleaded the purchaser nor questioned the alienations made by the first defendant. There is nothing on record to show that the first defendant committed any acts of waste in respect of family properties or utilized the sale proceeds for any illegal or immoral purpose. Thus, except with regard to item 2 of the C schedule, which admittedly belongs to Nagamani, mother of the plaintiffs, rest of the properties were not shown to be in existence as on the date of filing of the suit, they having either been disposed of long prior to filing of the suit or got sub merged under Pochampadu project, in respect of which compensation was paid and the claim made by her in that regard was also settled through elders. Neither Nagamani nor Sarada is also made parties to the suit. In fact, the plaintiffs filed IA No.282 of 1992 for deleting their names and the said application was allowed. As the plaintiffs failed to establish the existence of the plaint schedule items, other than item 2 of C schedule and further failed to show their claim for a share in the said items, the trial Court has rightly decreed the suit only in respect of item 2 of the plaint C schedule and dismissed the plaintiffs claim in respect of other items. 10. In the circumstances and for the reasons stated above, the impugned judgment, on reappraisal of the evidence available on record, does not call for any interference by this Court. There are absolutely no merits in the appeal and the appeal is liable to be dismissed. 11. In the result, the appeal is dismissed. No order as to costs. ___________________ G.V.SEETHAPATHY, J Date: 14.09.2010 bss