IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE TWENTY THIRD DAY OF NOVEMBER TWO THOUSAND AND TEN PRESENT HON’BLE SRI JUSTICE G. BHAVANI PRASAD SECOND APPEAL No.654 OF 2000 Between: Muppidi Aseervadam ..... Appellant And Muppidi Neelavathi …Respondent The Court made the following: HON’BLE SRI JUSTICE G. BHAVANI PRASAD SECOND APPEAL No.654 OF 2000 JUDGMENT: The Second Appeal is directed against the judgment and decree in A.S.No.22 of 1994, on the file of the Senior Civil Judge’s Court, Tadepalligudem, dated 17.01.2000. 2. The parties are referred to herein as they are arrayed in the suit. 3. The suit for permanent injunction is in respect of Ac.1.43 cents in R.S.No.768 and a vacant site of 103 ½ square yards in Jagannadhapuram Village of Tadepalligudem Mandal. The plaintiff claims that Item No.1 in the plaint schedule was purchased by Muppidi Vallaiah from Malloju Ankabattudu and another under a registered Sale Deed, dated 23.03.1954. Muppidi Vallaiah was claimed to have purchased a site along with his brothers under a registered Sale Deed, dated 30.08.1931, in which on partition, Muppidi Vallaiah got 207 square yards towards his share which was again divided between Muppidi Vallaiah and the defendant, on which Item No.2 of the plaint schedule fell to the share of Muppidi Vallaiah. The plaintiff claimed that Muppidi Vallaiah had two wives, Sampathamma and Chintalamma, and the defendant is the son of Sampathamma, who left Muppidi Vallaiah along with the defendant. The plaintiff’s husband, Venkatarao, is the son of Marlapudi Mangamma, who is the sister of Chintalamma and the parents of Venkatarao died at an early age. Muppidi Vallaiah and Chintalamma brought up Venkatarao since his childhood and even his surname was changed treating him as the adopted son of Muppidi Vallaiah. On the eve of the marriage of Venkatarao, Muppidi Vallaiah gifted both the items of the plaint schedule to Venkatarao under a registered Settlement Deed, dated 04.05.1960, and delivered possession to him. Venkatarao accepted the gift and subsequently gifted the property to the plaintiff, his wife, under a registered Settlement Deed, dated 04.06.1970, with life-estate to the plaintiff and vested remainder to their male children. Possession was also delivered to the plaintiff and the gift was duly accepted. While so, the defendant was interfering with the possession of the plaint schedule property, Item No.1 of which was under a tenant earlier and under the personal cultivation of the plaintiff by the time of the suit. Hence, the suit for permanent injunction. 4. The defendant contested the suit contending that Muppidi Vallaiah and the defendant were members of a Hindu Joint Family and the plaint schedule properties are the properties of the joint family which could not have been settled by Muppidi Vallaiah under the document, dated 04.05.1960. The undivided share of Muppidi Vallaiah being settled by the document is void and no injunction can be claimed on the strength of such a document. There was no division between the defendant and Muppidi Vallaiah of any property and the Settlement Deed impleading the defendant as a minor represented by Muppidi Vallaiah is void in view of the conflict of interest between Muppidi Vallaiah and the defendant. The suit is frivolous and vexatious and the defendant never threatened the plaintiff with interference with her possession of any property. The defendant gave Item No.1 of the plaint schedule on lease to Peddisetti Satyanarayana and the plaintiff earlier filed O.S.No.270 of 1982 which was dismissed for default after framing of the issues and hence, the present suit is barred by res judicata. The defendant, therefore, desired the suit to be dismissed. 5. On the said pleadings, the trial Court framed the following issues for trial: 1. Whether the plaintiff has title to the suit property? 2. Whether the suit for mere injunction without seeking declaration title is not maintainable? 3. Whether the plaintiff was in possession of the suit land as on the date of institution of this suit? 4. Whether the suit is barred by resjudicata? 5. To what relief? 6. During trial, P.Ws.1 to 4 and D.Ws.1 to 3 were examined and Exs.A-1 to A-7 and B-1 to B-15 were marked. 7. The trial Court rendered its judgment on 21.07.1994 firstly noting that there is no presumption in Hindu Law that a joint family possesses joint properties and it is only when the joint family was established to have possessed some joint property which from its nature would have formed sufficient nucleus for acquisition of the properties in question; that the burden shifts to the party alleging self-acquisition to prove the same. The trial Court observed that the initial burden is, thus, on the defendant and Ex.A-4 was considered to have proved the existence of ancestral nucleus as it specified that Muppidi Vallaiah got property in partition with his brothers in respect of Item No.2. Noting that the partition was not shown to be prior to or after Ex.B-1 under which Item No.1 was purchased by Muppidi Vallaiah, the trial Court felt that the property acquired under Ex.B-1 also is not the self-acquired property of Muppidi Vallaiah and takes the shape of joint family property blended into the common hotch pot. The trial Court felt that because Item No.2 of the suit schedule property is admittedly ancestral property, the property under Ex.B-1 must be taken to have been thrown into the joint family hotch pot. As the plaintiff did not show the suit properties to have fallen to the share of Muppidi Vallaiah in any subsequent partition and as the defendant was shown to be major by the time of Ex.A-4, the trial Court concluded that there was a cloud cast on the title of the plaintiff. The trial Court also concluded that in view of the said doubt on the title of the plaintiff, suit for mere injunction without a declaration is not maintainable. The trial Court further held that Exs.A-2 to A-6 were not shown to be Tax Receipts or Pahanies relating to the suit property and the trial Court accepted the documents produced by the defendant as showing his raising sugarcane in his lands and the plaintiff did not produce any satisfactory evidence to show her possession by the date of the suit. The trial Court also concluded that the disposal of O.S.No.270 of 1982 for non-prosecution amounts to a judgment on merits and bars the present suit. Hence, the trial Court dismissed the suit with costs. 8. In the plaintiff’s appeal in A.S.No.22 of 1994, the impugned judgment, dated 17.01.2000, was rendered by the First Appellate Court again referring to the rival contentions and evidence in detail and considering the entitlement of the plaintiff to a permanent injunction. The First Appellate Court concluded that it is not the case of the defendant that Muppidi Vallaiah purchased Ex.B-1 property from out of any sale consideration of any ancestral property or any income from any ancestral property and on the contention of the defendant that the ancestral property was sold away when he was aged about eight years, the purchase under Ex.B-1 was obviously long after. The First Appellate Court also concluded that the execution of the Gift Settlement Deed, Ex.A-4, is not disputed and admitted by D.W.1 and while the title of the parties cannot be decided in this suit, the recitals in Ex.A-4 were considered to be saying that Muppidi Vallaiah gifted half share in the house site to P.W.2. With reference to the precedents on the aspect, the Appellate Court concluded that the nucleus must be shown to be sufficient for acquisition of the subsequent properties and the burden is on the defendant to establish the plaint schedule properties to be joint family properties. As there was no other evidence except the oral evidence of D.W.1 in this regard and as the defendant did not even take the plea of blending subsequently, the Appellate Court refused to treat the properties as the joint family property. It considered inclusion of the defendant in Ex.A-4 to be only by way of abundant caution and Item No.1 house site was considered to be in the possession of the plaintiff and the defendant in equal halves. As the defendant kept quiet since Ex.A-4, in spite of being aware of its execution and in the light of the documents filed by the plaintiff probablising her possession, the Appellate Court concurred with the claims of the plaintiff, more so, in the light of Exs.A-1 and A-4 clearly disproving any title of the defendant. O.S.No.270 of 1982 was considered not to operate as res judicata as it was only a dismissal for default and hence, the Appellate Court decreed O.S.No.177 of 1986 with costs reversing the judgment of the trial Court. 9. The defendant approached this Court with this Second Appeal contending that the Gift Settlement Deed is a void document and both the items are joint family properties without any partition between him and his father Muppidi Vallaiah. In the absence of evidence to show partition between the brothers of Muppidi Vallaiah prior to 1954, Ex.B-1 property could be only joint family property and when by the time of Ex.A-4, the defendant was described as a minor represented by Muppidi Vallaiah, the family was obviously joint. The adangals could not have been relied on being subsequent to the suit and the positive evidence of documents showing the possession of the defendant could not have been overlooked. O.S.No.270 of 1982 operates as res judicata in the present suit. The defendant suggested six substantial questions of law to be arising in the Second Appeal. 10. This Court, by an order, dated 06.07.2005, admitted the Second Appeal on the following substantial questions of law. 1. In the absence of any evidence adduced by the plaintiff that the partition took place prior to 1954 and the property under Ex.B-1 is not self- acquired property of late Vallaiah, which he conveyed under Settlement Deed, Ex.A-4, whether the said Settlement Deed is binding on the defendant to pass a valid title? 2. Whether the lower Appellate Court is justified in reversing the judgment of the trial Court by wrongly placing burden on the defendant to show that item-1 of plaint schedule is the joint family property in the light of recitals under Ex.A-4? 11. Heard Sri C. Subba Rao, learned counsel for the appellant and Sri T. Durga Prasad Rao, learned counsel for the respondent. 12. QUESTIONS 1 & 2: Ex.B-1, dated 23.03.1954, is the document under which Muppidi Vallaiah purchased Ac.1.43 cents in R.S.No.768 and the document, which did not describe Muppidi Vallaiah as a Christian, recited that Muppidi Vallaiah paid the consideration in cash to the vendors and the source of acquisition of such money by Muppidi Vallaiah is not discernable from Ex.B-1. In Ex.A-4-Registered Settlement Deed, dated 04.05.1960, Muppidi Vallaiah, describing himself as a Christian, stated the plaintiff’s husband to be his adopted son and in the Gift Settlement Deed, it was specifically recited by Muppidi Vallaiah that Venkatarao, the husband of the plaintiff was brought up and adopted by Muppidi Vallaiah and was securing the properties at the time of his marriage which was fixed. Muppidi Vallaiah specifically described both the items of the plaint schedule as his self-acquired properties and also recited delivery of possession of the property to Venkatarao. Muppidi Vallaiah specifically stated the acquisition of Item No.1 of the plaint schedule under Ex.B-1 to be in the nature of his self-acquisition and insofar as Item No.2 is concerned, Muppidi Vallaiah described it as the northern half of 207 square yards of house site which fell to his share in the partition of his family and which is in his exclusive absolute possession and enjoyment. Though the defendant was included in Ex.A-4 as a minor represented by Muppidi Vallaiah, if both the items in the suit schedule were the self-acquired properties of Muppidi Vallaiah as described, the inclusion or exclusion of the defendant in the document or his age by that time would not have made any difference to the validity of the settlement by Muppidi Vallaiah in favour of Venkatarao. Under Ex.A-1, dated 04.06.1970, Venkatarao, again describing himself as the adopted son of Muppidi Vallaiah, gifted the property to the plaintiff specifically reciting that the properties were gifted to him by Muppidi Vallaiah and in his absolute possession and enjoyment since the gift and delivered possession to the plaintiff with absolute rights. Exs.A-2 and A-3-Tax Receipts of 1978 and 1979 were claimed to be relating to the suit property and Exs.A-5 and A-6-Copies of the Adangals and Ex.A-7-Extract of the House Tax Demand Register are relied on to corroborate the consequential possession and enjoyment of the properties by Muppidi Vallaiah, Venkatarao and the plaintiff in succession. 13. In view of the same, Exs.B-2 and B-3 were depended upon to show the description of the defendant, not as a Christian and also to show his age and Exs.B-4 to B-7 relate to O.S.No.270 of 1982 which was dismissed for non-prosecution. The First Appellate Court relied on binding precedents to conclude that the result of O.S.No.270 of 1982 does not operate as res judicata in the present suit to differ from which no contrary precedent or provision of law is brought to notice. Ex.B-8-House Tax Demand Notice paid by the defendant, relates to his house, the defendant having such house being not in dispute and even if the defendant had supplied sugarcane, as sought to be established by Exs.B-9 to B-15, the documents cannot be seen to have been positively linked with the suit properties. 14. P.W.1 is the plaintiff who reiterated her claims while P.W.2, who is her husband, corroborated the source of the claim of the plaintiff over the suit properties. P.W.3 claims to have cultivated the land of P.W.2 on lease between 1972 and 1976 and deposed corroborating the claims of possession prior to and after the said period. P.W.4 is claimed to be the attestor of Ex.A-4. But as against this, the defendant, who examined himself as D.W.1, had admitted that the ancestral Ac. 1.00 cents was sold when he was eight years old and still, any portion of the sale consideration that Muppidi Vallaiah might have got was not shown to be still available and intact by the time of the purchase under Ex.B-1 as concluded by the Appellate Court. D.W.1 admitted purchase of Item No.1 in the schedule property by Muppidi Vallaiah in 1954 and also the joint purchase of Item No.2 of the plaint schedule property by Vallaiah and Peddaiah. How any ancestral site could have been the source of any income to form sufficient nucleus for acquisition of Item Nos.1 and 2 of the suit schedule was not evident from the evidence of D.W.1 and O.S.No.270 of 1982 was admitted by D.W.1 to be only for a passage, apart from the fact that it was dismissed for default. The evidence of D.W.2 about supply of sugarcane cannot be considered to be linking the sugarcane supplied with the suit schedule properties and D.W.3 who claimed to be the tenant of the defendant who raised sugarcane in about Acres 4.00 cents did not specify the leased out land to be the suit land and admittedly, the defendant has other agricultural lands in his possession and enjoyment. 15. On such evidence, it cannot be considered that the evidence of D.Ws.1 to 3 or the documents of the defendant discredit the positive inferences that have to be drawn from the admitted documents of title Exs.A-1, A-4 and B-1. The admissions of D.W.1 also have significant impact in considering the initial burden of proof to have been discharged by the plaintiff in this regard. Whether the partition between Muppidi Vallaiah and his brothers took place prior to 1954/Ex.B-1 or subsequently, in the absence of establishment of any nucleus or sufficient nucleus yielding sufficient surplus income as to enable acquisition of the property under Ex.B-1 by Muppidi Vallaiah, the absence of any specific evidence as to when the partition took place between Muppidi Vallaiah and his brothers will be of no significance. If both the items in the plaint schedule are probablised to be the self- acquired properties of Muppidi Vallaiah, Ex.A-4-Settlement Deed could not have been questioned by the defendant. 16. The learned counsel for the plaintiff referred to SRINIVAS KRISHNARAO KANGO VS. NARAYAN DEVJI KANGO AND OTHERS[1], MUDIGOWDA GOWDAPPA SANKH AND OTHERS VS. RAMCHANDRA REVGOWDA SANKH (DEAD) BY HIS LEGAL REPRESENTATIVES AND ANOTHER[2] and D.S. LAKSHMAIAH AND ANOTHER VS. L. BALASUBRAMANYAM AND ANOTHER[3] for the proposition that the burden of proof is on the person who asserts it to prove that a property is a joint family property and it is only on proof of sufficient nucleus, the presumption of jointness is derived, shifting the burden to the person asserting the property to be self-acquired. The learned counsel also relied on LAKKIREDI CHINNA VENKATA REDDI AND OTHERS VS. LAKKIREDDI LAKSHMAMA[4] about the person alleging blending to be liable to prove the same. The learned counsel also referred to POTTURI SARASWATI VS. VALLBHANENI VERRABHADRA RAO[5] about the maintainability of a suit for injunction simpliciter without any request for declaration of title. While the burden of proof is placed by the First Appellate Court and herein also on the parties in tune with the first three precedents, as the First Appellate Court pointed out the defendant did not raise the plea of blending and no evidence could have been looked into without such a plea. The maintainability of the suit for mere injunction even without a prayer for declaration of title is not in dispute herein. 17. The trial Court dismissed the suit on the ground of the same being barred by res judicata which is shown to be against the accepted position of law and the trial Court also failed to consider the effect of the adangals and tax receipts which could have been taken as prima facie showing the possession of the plaintiff in the absence of any contrary evidence and relied on documents relating to supply of sugarcane which were not linked specifically to any sugarcane raised in the suit property. The reasoning of the trial Court about Ex.B-1 not showing the property to be self- acquired property due to absence of evidence of partition between Muppidi Vallaiah and his brothers is fallacious as even the absence of such evidence does not lead to any positive indication of the existence of any ancestral nucleus aiding Muppidi Vallaiah in purchasing the property under Ex.B-1. The reasoning of the First Appellate Court in this regard appears in tune with the broad human probabilities of fact arising out of the evidence on record and the conclusions of fact do not appear to raise any substantial questions of law for consideration of the Second Appeal. 18. However, before disposing of the Second Appeal on the above conclusions, it is to be noted that the suit is for a permanent injunction simpliciter. Even the judgment of the trial Court was more on the basis of a cloud cast on the title of the plaintiff, but not on any conclusion on the probabilities about the existence of the title of the plaintiff or the defendant. The First Appellate Court clearly observed in Para 14 of its judgment that the suit is for a simple permanent injunction and the title of the parties cannot be decided in this suit. The observations of the First Appellate Court thereafter have to be understood in this context as only incidental relating to the aspect of title but not indulging in any conclusive determination of the question of title. Therefore, it is to be made clear that the observations in the judgments of the trial Court or the First Appellate Court or this Court in deciding the questions in controversy about the right of the plaintiff for a permanent injunction have to be clearly understood as having been made with reference to such entitlement for permanent injunction and not to conclusively determine the question of title between the parties. It may be open to the parties to take recourse to any appropriate legal proceedings to which they may be entitled to under law concerning conclusive determination of the question of title to the plaint schedule properties in this background uninfluenced by the proceedings and judgments herein. 19. Subject to the above observation, both the substantial questions of law framed while admitting the Second Appeal have to be answered against the appellant and the First Appellate Court cannot be considered to be unjustified in reversing the judgment of the trial Court or to have wrongly placed any burden of proof on the defendant. 20. Accordingly, the Second Appeal is dismissed without costs. _____________________ G. BHAVANI PRASAD, J Date: 23rd November, 2010 KL HON’BLE SRI JUSTICE G. BHAVANI PRASAD SECOND APPEAL No.654 OF 2000 November 23, 2010. KL [1] AIR 1954 SUPREME COURT 379 (1) [2] AIR 1969 SUPREME COURT 1076 [3] 2003 (6) SUPREME 540 [4] AIR 1963 SUPREME COURT 1601 [5] 1985 (1) ALT 1