THE HON’BLE SRI JUSTICE B PRAKASH RAO AND THE HON’BLE SRI JUSTICE B CHANDRA KUMAR A S NO. 271 OF 1997 AND A S NO. 864 OF 1999 COMMON JUDGMENT : (Per Justice B Prakash Rao) Since in both these appeals, common question as to the entitlement is involved, hence, they are taken up together for disposal. In A S No. 271 of 1997, the appellant is plaintiff, who is aggrieved against the partial decree being granted in a suit for partition contra to the claim made by him in the plaint, as per the judgment and decree in O S no. 57 of 1997 of the Subordinate Judge, Sidipet, Medak district. Whereas, the appellant in A S no. 864 of 1999, is again the plaintiff in AS no. 271 of 1997/defendant no. 32 in O P no. 46 of 1996, aggrieved against the judgment and decree in O P No. 46 of 1996 dated 30.1.1999 on the file of the Senior Civil Judge, Siddipet, Medak district, in a proceedings arising under section 30 and 31 (2) of the Land Acquisition Act in regard to the title dispute in respect of different extents of lands which have been acquired in Survey nos. 55/3, 108/3, 64/3, and 68/3, situate at narsapur village, Siddipet mandal, Medak district. Coming to the main appeal in A S no. 271 of 1997, the appellant/plaintiff sought for partition of the suit schedule properties in “A, B, C and D” into two equal half shares and to allot one share to him and evict D-4 to D-9 from the lands shown as “B” schedule. The claim of the appellant in brief as narrated in the plaint is that he is the only son of defendant no.1, whereas defendants 2 and 3 are daughters and defendant no.10 is mother and defendants 4 to 9 are totally strangers without right , title or interest in the schedule “B” properties. Since all these properties are jointly owned and possessed and including those shown in other schedules, hence, the plaintiff is entitled for half share along with other defendants. Narration has been given in respect of other checkered event including a nominal gift by defendant no.1 in respect of defendants 2 and 3 in respect of certain lands covered under suits in O S nos. 199 of 1978 and O S no. 297 of 1987. Further, it was alleged that all these third parties have been let into possession at the instance of defendant no. 1, only to deprive the plaintiffs legitimate rights, hence the claim. It is necessary to mention that the mother who was added later as per the orders in I A No. 321 of 1990 dated 27.3.1991, whereas defendants 10 to 15 were added as per orders in I A Nos. 346 of 1991 dated 3.2.1992. Later during the pendency of the proceedings, the defendant no.1/ father died on 13.10.1994. The defendant no. 16 was impleaded on 9.3.1995 as per the orders in I A No. 1 of 1995. Since defendant No. 8 died in the meanwhile, defendants 17 to 23 were added as per the orders in I A No. 125 of 1996 dated 30.7.1996. The contest on behalf of the defendants, which virtually runs almost on the same lines, though separate written statements were filed by defendant no.1 with an additional written statement and also by other defendants. The case in defence was that the entire properties are only self acquired and not ancestral and absolutely the plaintiff has no right , title or interest of whatsoever nature. In respect of the various other transactions entered into and the persons in possession, the complete narration has been given, however it was a specific case of the defendants that in fact defendant no.1 had four sons Viz.,Balreddy, Mallareddy, Narshima Reddy (Plaintiff ) and Hanumantha Reddy and three daughters i.e., D-16, D-2 and D-3. However, Balreddy and Malla Reddy died intestate and unmarried in the year 1952 and 1994 respectively and Hanumantha Reddy died intestate and unmarried in 1975. Therefore, necessarily there has to be proper variation in regard to the shares held by parties. In regard to the lands in possession of the other defendants, it has been reiterated that they are in possession in their own right. Defendant No. 1 took a specific plea that ancestral property consist of Ac.6.00 land and rest is only self acquired, therefore he has every right to deal with and has rightly done, hence no claim by the plaintiff. After filing of pleadings from both sides, the Court below, framed the following issues for consideration; Issue No.1 Whether the suit schedule properties shown in “A, B , C and D” schedule are owned and possessed by the plaintiff and defendant no.1 ? Issue No.2 Whether the D1 exclusively owned and possessed “B” schedule properties.? Issue No.3 Whether defendants 4 to 9 are in illegal possession of “B” schedule properties.? Issue no. 4 Whether the suit is bad for non joinder of necessary parties? Issue No.5 Whether the suit is not properly valued for the relief claimed ? Issue No.6 Whether the plaintiff is entitled for half share in the suit properties, as prayed for? Issue No.7 To what relief? Additional Issue Whether defendant no. 16 is entitled for one fifth share in the suit schedule properties ? During the course of the trial, the plaintiff examined himself as P W 1 whereas Defendant no,1 was examined as D.W.1, defendant no.10 was examined as D.W.2, Defendant no. 8 as D.W.3, defendant 15 as D W 4, defendant No.11 as D W 5, defendant no.6 as D W 6, defendant no.3 as D W 7 and also examined D.Ws 8 and 9 who are attestors of Ex.B.44. On consideration of these material and evidence as adduced by both sides, the Court below ultimately decreed the suit in part holding that the plaintiff is entitled to one third share in the remaining properties and rejecting the claim in respect of the properties alienated and in possession of other defendants. Hence, the appeal. After considering the submissions in detail and on perusal of the material, with the assistance of counsel on either side, who took pains to take us through the pleadings, evidence and documents, the point arises is whether on the facts and circumstances, the plaintiff is entitled to the decree for the extent of share as claimed in respect of the entire schedule properties.? In regard to the other appeal in A S No. 864 of 1999, the land which has been acquired as stated above were acquired for the purpose of alignment of Hyderabad, Karimnagar and Ramagundam Road by issuance of notification under section 4 (1) of the Land Acquisition Act, on 31.1.1990. Later after following the entire due procedure as contemplated under the Act, the Land Acquisition officer took up the enquiry and claims have been set forth by the parties who are also parties herein. In these lines the appellant had claimed similar extent of share as has been claimed in the suit, which has been appealed against. The case of the appellant runs on the same lines to the effect that he being the only son entitled to half share in the entire acquired suit land. After receipt of the claim from all the claimants , during the course of enquiry claimants examined P.W.1 to 4 wherein the appellant examined as P W 2 and marked documents Ex.A1 and A2 which are the judgment and decrees in the same suit against which the other appeal is being taken up. Ultimately, the Court below by taking into account the said decrees in Ex A1 and 2 being in appeal, held that the claimant would be entitled to claim subject to the decision in the appeal in A S No. 271 of 1997, hence the correctness of the claim of the appellants in A S no. 864 of 1999 squarely depends upon the ultimate conclusion that would be arrived at in A S no. 271 of 1997, in respect of the extent to which he is entitled to the share. Therefore, it is not necessary to dwell into all facts or material as such and consider material therein. Both parties agreed for such an exercise. Coming to the material in A S No. 271 of 1997 the appellant /plaintiff examined himself as P W 1 and virtually reiterated the whole case as set forth in the plait. It is his case once again that he being the only son seeks half share in the entire joint property. Except the said oral version there are no other details, further nothing has been produced to support his version either by oral or documentary evidence. Whereas the case of the plaintiff was denied by the defendant no.1 , who was examined as D.W.1 and denied the entitlement of the share by the plaintiff. In respect of the other issues as to alleged illegal possession of defendants 4 to 9 it was held that they are the bonafide purchasers and their possession cannot be termed as illegal. No serious attempt is made to challenge the same. In regard to the other issues, especially as to the exclusive ownership and possession of defendant no.1, the Court has rightly taken into consideration the fact that in the absence of any positive evidence and material coming from the plaintiff, his version cannot be accepted and rejected the same holding that defendant no.1 is exclusive owner and possessor. Coming to the properties in schedule “A, B, C and D” once again it is the sole testimony of PW.1 which has been pressed into service , without which there is no explanation coming as to why the other evidence could not be produced in support. There is no serious denial also in regard to the statement of DW.1 father , that he himself was doing his own business, cattle business and commission agent in the market yard and thereby he acquired these properties. Admittedly, even according to PW 1 he was working as lorry driver and since 1985 onwards he was not with the father and therefore there is no question of any assistance being given by him also. Therefore, on totality of the circumstances and lack of material from the plaintiff’s side to show that there was any ancestral property or nucleus being used, it was held that the plaintiff failed to prove his case. That apart, there has been certain other proceedings in O S no. 299 of 1989 upholding the gift by the father in favour of defendant no.2 which is marked as Ex.B-24 , against which no appeal is filed and the same has become final. Similarly in O S No. 199 of 1978 filed by defendant no.3 under similar such gift to defendant no.3 in respect of items 10 and 11 has also remained unassailed and unchallenged. On the face of these documentary evidence and decrees and further decree in O S No. 297 of 1987 in respect of Schedule “A” properties, it is not open for the appellant to resile back and make any claim. It is not the case of the plaintiff that his father was admitted to any vices and disposes of those properties in favour of those third parties, therefore the Court below has rightly taken into consideration the evidence of himself as P W 1 vis a vis that has been produced on behalf of defendants to reject the plaintiffs claim. In spite of the fact that the defendants have come up with specific pleadings apart from the plaintiff, there were three sons but plaintiff has not given any explanation nor any reason being shown. Therefore, as rightly observed by the Court below, we are of the view that plaintiff has not come with clean hands. Though an attempt has been made on behalf of the appellant that certain new pleas were added at later stage, and trying to give a new twist to which there has been no enquiry and opportunity, the matter requires to be considered afresh, we are of the view that on his own account the plaintiff has to rest his claim in proving that the suit properties are liable to partition where he has a share. In the absence of any prima facie material forthcoming and no explanation coming even in the present appeal, it cannot be said that there is any such new version, which required remittance or reconsideration of the matter afresh. In the aforesaid circumstances, we do not find any merits in the appeal or justification in the claim set forth by the plaintiff/appellant nor any reason warranting interference of this Court with the finding recorded by the Court below. Now coming to appeal in A S No. 864 of 1999, as we have already rejected the claim as set forth in both these proceedings by the appellant, same would govern in this appeal also and we hold that having regard to the findings given in regard to the entitlement of 1/3rd share only in respect of other properties, as per the decree of the trial court, the plaintiff/appellant would be entitled to similar such extent of share in the compensation. Subject to above, both the appeals are dismissed with costs. ________________ B.PRAKASH RAO,J __________________ B CHANDRA KUMAR,J DATE: -11-2009 THE HON’BLE SRI JUSTICE B PRAKASH RAO AND THE HON’BLE SRI JUSTICE B CHANDRA KUMAR A S NO. 271 OF 1997 AND A S NO. 864 OF 1999 DATE: -11-2009 THE HON’BLE SRI JUSTICE B PRAKASH RAO AND THE HON’BLE SRI JUSTICE B CHANDRA KUMAR A S NO. 271 OF 1997 AND A S NO. 864 OF 1999 PD judgment for perusal of Hon’ble Sri Justice B Chandra kumar