THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT No.791 OF 2002 AND CIVIL REVISION PETITION No.562 OF 2005 COMMON JUDGMENT: Appeal Suit 791 of 2002 was filed against the judgment and decree in O.S.No.51 of 1991 on the file of Principal Senior Civil Judge, Eluru at East Godavari, by the defendants, whereas the Civil Revision Petition 562 of 2005 was filed by the land owner against the order in A.T.C.No.4 of 1992 on the file of the Special Officer (Tenancy)-cum-I Additional Junior Civil Judge at Eluru. 2. The suit was filed for partition of the plaint schedule property into three equal shares and for separate possession of such share to the plaintiff and for a permanent injunction restraining the defendants from alienating or in any way interfering with the 1/3rd joint possession of the plaintiff. The schedule property is fish tank in an extent of Acs.22.70 cents situated at Kokkirailanka village of Eluru Mandal. 3. The allegations in the plaint go to show that the 1st defendant is the father and the 2nd defendant is the brother of the plaintiff. The 3rd defendant is the paternal grandfather of the plaintiff. Defendants Nos.1 and 2 and the plaintiff constitute members of a Hindu joint family, of which the 1st defendant is the Manager. Defendant No.3 has got three other sons by name Rama Raju, Subba Raju and Balaram Ram and they have got agricultural ancestral properties of Acs.109.00 cents at Kokkirailanka village and Acs.40.00 cents at Kopalle village and there was a oral partition prior to 1980. In the said partitions the schedule property and also Acs.6.00 cents at Kopalle fell to the share of the 1st defendant. The Land Reforms Tribunal in L.C.C.No.2325 under the Land Ceiling Act, passed an order on 28.05.1977 on the declaration of the 1st defendant. The schedule properties were shown as the share of the 1st defendant. The 1st defendant did not evince interest in agriculture and he sold some of the properties at Kopalle village without any necessity. In the month of April, 1988, the 3rd defendant and his other sons sold away their respective shares and when the 1st defendant also tried to alienate it was stopped. Defendants Nos. 3 to 5 are colluding to defeat the rights of the 1st defendant and the plaintiff demanded for the partition of the properties, but the defendants did not co-operate. As defendants Nos. 3 to 5 are claiming possession they are added as parties to the suit. Accordingly, the suit was filed for partition and injunction. 4. Defendants Nos.1 and 2 remained ex parte. The 3rd defendant filed a written statement contending that the ancestral family properties were partitioned on 01.09.1957 and a registered partition deed and the C-schedule has fallen to the share of the 1st defendant. On 12.09.1957 the 3rd defendant and his sons along with others have purchased Acs.451.88 cents of land of Kokkirailanka village from Sri P.V. Raghavulu and others and the 3rd defendant and his sons got Acs.109.00 cents to their share. The 3rd defendant improved the lands and also discharged some of the debts. The 3rd defendant also brought the lands under cultivation by spending huge money. The properties were sold in 1989 for the debts of the family and also for the medical expenditure of the 3rd defendant. The 3rd defendant leased out Acs.109.00 cents of land to one G.Suryanarayana Raju and the 4th defendant on 15.10.1978 and possession was delivered. The 4th defendant and others dug fish tanks. The 1st defendant never undertook any cultivation. The allegations that oral partition prior to 1980 and the 1st defendant got the schedule property is not correct. The allegations that the 3rd defendant tried to sell away the property is also not correct. The 4th defendant and others are lessees and they are protected tenants. The plaintiff is not entitled to claim partition of the 1/3rd share. 5. The 4th defendant also filed a written statement claiming that the property was taken on lease since 1978 and fish tanks were dug and that he has been in possession and enjoyment of the property along with Gottimukkala Suryanarayana Raju. 6. The plaintiff also filed a rejoinder denying the allegations. Defendants 6, 8 to 10 adopted the written statement of defendant No.3. 7. The 6th defendant, who was added as legal representative of the 3rd defendant pleaded that the 3rd defendant executed a Will on 18.03.2000 bequeathing the schedule property to defendants Nos.6 and 7. The suit is therefore liable to be dismissed. 8. On behalf of the above pleadings, the following issues have been framed for trial: 1) Whether the oral agreement prior to 1980 as pleaded by the plaintiff is true and correct? 2) Whether the plaintiff is entitled to any share in the plaint schedule property, if so to what share? 3) Whether defendant No.4 is a tenant and the lease deed in favour of defendant No.4 is binding plaintiff? 4) Whether the plaintiff is entitled to permanent injunction as prayed for? 5) To what relief? The following additional issue is framed on 30.10.2000 Whether the Will dated 18.03.2000 is true and valid? 9. On behalf of the plaintiff PWs.1 and 2 were examined and marked Exs.A.1 to A.19. On behalf of the defendants DWs.1 to 6 were examined and marked Exs.B.1 and B.2. 10. After considering the evidence on record, the suit of the plaintiff was decreed and aggrieved by the said judgment, defendants Nos.6, 8, 9 and 10 filed the present appeal. 11. Civil Revision Petition No.562 of 2005 was filed by the plaintiff, defendants Nos. 1 and 2. 12. A.T.C.No.4 of 1992 was filed by the 4th defendant and Gottumukkala Suryanarayana Raju seeking the declaration that they are the protected tenants of the schedule property and it was allowed. As against that, A.T.A.No.127 of 1998 on the file of Tenancy Appellate Tribunal-cum-Principal District Judge, West Godavari, was filed and the appeal was also dismissed confirming the order. The present revision was filed contending that the Tenancy Court has no jurisdiction and the provisions of the Tenancy Act are applicable and the orders are not valid. 13. The points that arise for consideration are: (1) Whether the plaintiff is entitled for partition of the schedule properties? (2) Whether the judgment of the lower Court is legal and sustainable? (3) Whether the order of the Tenancy Tribunal is legal and sustainable? 14. POINTS: There is no dispute about the relationship between the parties. There is also no dispute about the fact that the family has got ancestral agricultural properties and on 01.09.1957 there was a partition and ‘C’ schedule properties in that partition list was fallen to the share of the 1st defendant. In fact, that is not the subject matter of the dispute in the suit. It is also not in dispute that after the partition of the properties on 12.09.1957 the 3rd defendant along with his sons and others purchased about Acs.451.88 cents of land at Kokkirailanka village under Ex.A.1 sale deed and thereafter, the family of the 3rd defendant and the 1st defendant has got Acs.109.00 cents to their share. The question for determination in this case is as to whether the said properties under Ex.A.1 were purchased from out of the joint family funds by the father and as to whether the alienations effected by the father along with other brothers is for any necessity and whether the joint family continued after the partition on 01.09.1957. 15. It is to be noted that the status of joint family is quite different from joint ownership of the properties by members of the family. When on 01.09.1957 partition of the properties was effected, then there is a division of the status and also allotment of the shares of the joint family members. Therefore, they acquire absolute joint rights in those properties. The acquisition under Ex.A.1 is evidently subsequent to the alleged division and therefore, it is a joint acquisition but not a joint family acquisition. It is to be mentioned if it is a joint family acquisition the father will have the power to alienate the property for the benefit of the family or for the discharge of the debts of the family. But, however, if it is a joint property all the brothers and the father all of them will have equal share and the father does not have any right to sell the shares of the others so as to bind them. It is sought to be contended on behalf of the appellant that the allegation in the plaint goes to show that the family is joint and therefore, any alienations made by defendant No.3 along with others is binding on the 1st defendant and he is also liable for the expenditure or the debts of the family. In fact, a reading of the plaint only goes to show that the family of the plaintiff and the 1st defendant and the 2nd defendant is a joint family, evidently because there was no division of the properties defendant No.1 got in the partition, and there was no division of the property belonging to 1st defendant, which were purchased under Ex.A.1, evidently with some ancestral nucleus. This allegation does not mean that the joint family continued with the 3rd defendant as a Manager in order to bind the alienations on defendant No.1 or his family members. 16. In fact, the lower Court after considering the evidence on record found that there is no proof of discharge of the debts or any alienation for the benefit of the family. It is not in dispute that all the other brothers and 3rd defendant have sold the lands at Kokkirailanka village to 4th defendant and Gottimukkala Suryanarayana Raju except the suit schedule property. Therefore, the evidence on record does not support that any of the alienations effected by defendant No.3 along with his other sons is in the status of a Manager of a joint family. 17. So far as the claim of the plaintiff in this suit is concerned with regard to the schedule property, a family arrangement was pleaded prior to 1980 and the schedule properties were said to have been given to the share of the 1st defendant and the share of the 1st defendant was also said to be reflected in Ex.A.12 ULC order. 18. The learned counsel for the appellant contends that the factum of the partition as pleaded by the plaintiff was disbelieved by the Court and consequently, the plaintiff is not entitled for the separate property as such. On the other hand, the learned counsel for the respondents contends though the lower Court erred in finding that the plaintiff failed to prove the family arrangement in 1980 and even if no appeal is filed under Order 41, Rule 33 of Civil Procedure Code, and the respondent have got every right to challenge such finding and in fact, according to the judgment of the lower Court, it supports the factum of the family arrangement from other evidence available on record and the appellant cannot therefore dispute the same. 19. The learned counsel for the respondents strongly rely upon the several sale deeds where-under the factum of the family arrangement prior to 1980 was mentioned and admitted by defendant No.3 and others. In fact, the learned Senior Civil Judge has referred to the relevant documents. Exs.A.2 to A.10 are the sale deeds, where-under Acs.88.00 cents of land was sold by defendant No.3 and his other three sons except the 1st defendant, evidently relating to their share in the lands purchased under Ex.A.1. In Ex.A.6 executed by defendant No.3 there was a reference that there was a partition prior to 1984 so also in Ex.A.6 there is a clear recital that the properties were partitioned prior to 1984, which are the lands purchased under Ex.A.1. The lower Court came to the conclusion that there was no proof of family arrangement as there was no proof of possession of the 1st defendant. The lower Court has also taken another view of the matter and hold that even if the properties are the joint family properties, the 1st defendant will having 1/5th share and entitled to the schedule properties as all other brothers have sold the same. Therefore, the entitlement of the 1st defendant for the extent of Acs.22.00 cents and odd cannot be denied taking any view of the matter, either the properties being joint or joint family properties, in which he has got 1/5th share. If really the property was not divided and the 3rd defendant and his sons are having joint interest in the entire property, there is no reason as to why the other sons should join in alienation of the properties along with defendant No.3 except defendant No.1. In fact, in Ex.A.2 the sale deed dated 05.04.1988 it was specifically mentioned that the property sold was purchased on 12.09.1957 and prior to 1994 there was an oral partition and the sharers are enjoying the property separately with absolute rights. This document was executed by defendant No.3 and his sons and it clearly goes to show that they are the divided family members of defendant No.3. The other documents also refer to a recital of oral partition prior to 1984. Therefore, in view of the admitted documentary evidence, the finding of the lower Court that the plaintiff, who was not associated with the family affairs being away from the village, cannot be expected to have adduced better evidence. While coming to a conclusion on the failure of the evidence, the lower Court failed to notice that there was a clear recitals about the earlier partition in all the sale deeds executed by defendant No.3 and his family members. Therefore, in view of the above circumstances, there is no other conclusion available except to hold that the suit schedule property is the property of the 1st defendant. In fact, if any of the defendants have got claim over the schedule property there is no reason as to why the 1st defendant was not asked to join in the other alienations. Even otherwise Acs.22.00 cents is the only available land, in which the 1st defendant has got right and as the other alienations are not proved to be binding on the 1st defendant or for the benefit of the 1st defendant, the 1st defendant will be entitled to the balance of the property, which is available. Probably, the reason for not being able to alienate the property may be that defendant No.3 has leased out the property even in 1978 to defendant No.4 and another and this property was kept separate. Therefore, for the above reasons I do not find any infirmity in the judgment of the lower Court in allotting the Acs.22.00 cents of land as being the share of the 1st defendant in which the partition is to be effected. 20. So far as the tenancy application is concerned, the fact that the tenants, who are defendant No.4 and another, were in possession of the property is not disputed and it is said to be a lease that is commenced in the year, 1978 and it is marked as Ex.A.1, which is an unregistered one dated 15.10.1978. By this date evidently there was no division of the joint rights in the property under Ex.A.1 and therefore, the father might have leased out the property to defendant No.3. The learned counsel for the revision petitioners contends that the Tenancy Court has no right to determine the dispute about the ownership and relied on a decision reported in Dontireddy Venkata Reddy V. Bhimavarapu Bhushireddy and others[1]. It was also contended that the determination of the relationship of landlord and tenant is not final. He also further relied on another decision reported in Golavalli Ramakrishna Murthy V. Muramalla Ammanna Raju and others[2], on the same aspect. 21. However, in this case, it is the admitted fact that by the date of filing of the petition, there were fish ponds and tanks and there was no agricultural activity. The applicability of the Tenancy Act is only to such lands where there is cultivation and evidently it should be an agricultural activity. Raising of the fish ponds and breeding of the fish is not an agricultural activity and consequently, the protection under the Tenancy Act cannot be claimed or extended. Therefore, in view of the above circumstances when evidently by the date of filing of the tenancy application, the land was not being put to agricultural use, there cannot be any declaration of rights of tenancy and the revision has to be allowed and A.T.C.No.4 of 1992 has to be dismissed. But, however, the tenants being in possession since long time as directed by the lower Court, they can be vacated only by due process of law. Accordingly, the points are answered. 22. In the result, A.S.No.791 of 2002 is dismissed and C.R.P.No.562 of 2005 is allowed and the order in A.T.C.No.4 of 1992 is set aside. But, however, the persons, who were in possession of the property, shall be vacated only by due process of law as they have no statutory protections. Each party shall bear their own costs. _______________________ N.R.L.NAGESWARA RAO,J Date: 05.07.2011 INL [1] AIR 1971 ANDHRA PRADESH 87 [2] 2008(5) ALT 712