THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR SECOND APPEAL NO.136 OF 1999 DT.19.08.2010 Between: Narshetti Laxminarayana ……………….Appellant Vs. Narshetti Narsaiah and four others. ……………..Respondents Counsel for the appellant: Sri V.Ravikiran Rao Counsel for the respondents: Sri A.Giridharrao The Court made the following: JUDGMENT: The appeal is directed against the judgment passed by the Additional District Judge, Adilabad, dated 05.10.1998 in O.S.No.8 of 1997 reversing the judgment and decree passed by the District Munsif, Adilabad, dated 20.01.1997 in O.S.No.31 of 1994. The appellant herein is the second defendant in the suit and the first respondent herein is the plaintiff and respondent Nos.3 to 5 are the defendant Nos.3 to 5 in the suit. The parties will be referred as they are arrayed in the original suit for the sake of convenience. The plaintiff and defendant Nos.1 and 2 are the sons of late Kistanna. Defendant Nos.3 to 5 are the daughters of Kistanna. The plaintiff filed a suit for partition of the plaint schedule property into 24 shares and allotment of 7/24th share to him. The specific case of the plaintiff is that his father late Kistanna sold away their ancestral wet lands at Narsingapur Village in Karimnagar District and purchased house Nos.3-4-231, 3-4-232 in the name of Kishtanna and house No.3-4-233 on 05.12.1970 under registered sale deed in the name of second defendant, who was a minor under the guardianship of his father late Kistanna at that time and that it is a joint family property. Kistanna died on 16.05.1985 and after his death, the plaintiff and the defendants sold the houses bearing Nos.3-04-231 and 3-4-232 in 1992 to one Taher Bee under registered sale deed and distributed the sale proceeds among themselves. The second defendant has been trying to sell the suit house to Naresh Kumar Jain for a consideration of Rs.96,100/- and when the plaintiff demanded for partition, the defendant Nos.1 and 2 refused to effect partition and therefore, he filed the suit. Defendant Nos.1 to 5 filed a joint written statement, contending inter alia, that their father late N.Kistanna shifted to Adilabad in or about 1961; that he worked as Tailor and that he purchased house No.3-4-231 and 3-4-232 with his own funds and sale proceeds of his ancestral properties at Narsingapur in the year 1963 and the aforesaid properties were sold to Tahera Bee. As far as the suit schedule property is concerned, their specific case is that the said property was purchased for Rs.1,000/- vide registered sale deed in the name of second defendant out of the accumulated amount gifted by relatives and parents from time to time to the second defendant and that it is a self acquired property of second defendant and that neither the plaintiff nor the other defendants have any right whatsoever in the suit house. It is also their case that since the date of purchase, second defendant has been in possession and enjoyment of the house as an owner, without any interruption and that the second defendant demolished the old structure in the year 1989 and constructed two rooms with Banglore tiled roof and that he has also perfected his title by adverse possession. Their further case is that the plaintiff never acted as kartha of the joint family at any time and that he had been living at Adilabad since 20 years and lived separately from his father and that he never assisted his father during his life time. It is also their case that defendant Nos.1 and 2 looked after their parents in the absence of plaintiff and that second defendant being the owner and possessor has sold the suit house to one Naresh Kumar Jain for Rs.1,00,000/-. The plaintiff filed rejoinder denying the contentions of the defendants that he purchased the suit house out of the accumulated amounts gifted by relatives and parents from time to time. It is his specific case that there was no accumulation of amount by gifts and it is also denied that second defendant has been in exclusive possession and enjoyment of the property without any interruption for more than 10 years and that he demolished the house structure in the year 1989 and constructed two rooms. The Trial court framed the following issues for trial: 1) Whether the plaintiff is entitled for partition and separate possession of suit house? 2) To what relief? On behalf of the plaintiff, the plaintiff himself was examined as PW-1 and one M.Dharmaiah was examined as PW-2 and one Pedda Ishtari was examined as PW-3. On behalf of the defendants, second defendant was examined as DW-1 and the first defendant was examined as DW-2. On behalf of the plaintiff, Exs.A-1 and A-2 were marked and no documents have been marked on behalf of the defendants. The trial court holding that in Ex.A-1 petition filed in R.C.C.No.1 of 1986, it is not mentioned that the suit schedule property is the joint family property and that the plaintiff was not residing with his father after the death of their mother and that the second defendant gave a notification in 1989 stating that the plaintiff has no right to sell the suit house and that the plaintiff did not question the said publication and that these circumstances go to show that the suit schedule property is the exclusive property of the second defendant. Holding that the plaintiff failed to discharge the burden and failed to show that the suit house was purchased from out of the funds got after the sale of joint family properties, the trial court dismissed the suit. The plaintiff carried the matter in appeal. The appellate court discussed the entire evidence and held that DW-1 specifically admitted that his father got the ancestral property at Narsingapur and with the sale proceeds of those ancestral properties, their father purchased two other houses and that the suit house was also purchased by his father in his name and that there is no satisfactory evidence to show that there was accumulation of amounts by way of gifts to the second defendant and that late Kistanna purchased the suit property in the name of second defendant with the funds of second defendant alone. The appellate court also observed that the second defendant was a minor by the date of purchase of the schedule property and therefore, burden lies on him to prove that the suit house is his self acquired property. The appellate court also took into consideration the evidence of DW-1 that his father was kartha of the joint family property till his death in the year 1985; and the second defendant became major in the year 1978. The appellate court also took into consideration the admission of DW-1 that the plaintiff (PW-1) used to receive the rents and pay taxes being the eldest son and that their father managed the properties till his death and that the suit schedule house was treated by their father and other members of family only as joint family property, and it was not treated as self-acquired property of second defendant. The appellate court also held that the suit is filed in the year 1994 i.e., within nine years after the death of Kistanna, so, the question of ouster does not arise and that the defendant cannot take the plea of adverse possession. The appellate court also observed that DW-2 admitted that all the heirs of Kistanna filed R.C.No.1 of 1986 for eviction of a tenant and that there is nothing on record to say that the schedule property in R.C.C.No.1 of 1986 was not treated as joint family property in those proceedings. The appellate court also observed that the second defendant has not chosen to file the certified copy of the sale deed in support of his contention that he sold the suit house to Naresh Kumar Jain and such contention cannot be believed. The substantial question of law framed is as follows: “Whether the appellate court is justified in reversing the well considered judgment of the trial court based on surmises and imaginations by drawing adverse presumptions in the absence of legal evidence on record to show that there was sufficient nucleus of joint family funds available with which the suit house was acquired?” The relationship of the parties is not in dispute. Admittedly, the appellant was aged about 10 years on the date of purchase of the suit property. Admittedly ancestral properties at Narsingapur village were sold and two other houses and suit house property were purchased. Of course suit house was purchased in the name of second defendant alone. The evidence adduced on behalf of the defendants is not convincing to say that out of the accumulated amounts of the second defendant, suit property was purchased in his name. Admittedly, his father purchased the said properties by selling the ancestral properties and subsequently those two houses were sold by the plaintiff and defendants and sale proceeds were distributed among themselves. The burden lies on second defendant to prove that the suit schedule property is his exclusive property and not amenable for partition. Admittedly, father of the plaintiff and defendants died in 1985. Admittedly, he was managing the properties till his death. Admittedly, the second defendant though became major in the year 1978, did not pay the taxes for the suit schedule property. Merely because in R.C.C.No.1 of 1986 it is not mentioned as joint family property, the suit schedule property will not become the self acquired property of the second defendant. The appellate court has taken into consideration the facts and circumstances of the case and based on sound reasoning and for valid reasons, set aside the judgment of the trial court. The findings of the appellate court are based on proper appreciation of evidence. Therefore, no substantial question of law arises. Accordingly, the appeal is dismissed. The judgment of the Additional District Judge, Adilabad in A.S.No.8 of 1997, dated 05.10.1998 stands confirmed. However, in the circumstances, no order as to costs. ______________________ B.CHANDRA KUMAR J., Dt.19.08.2010 tjs