IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE TWENTY FOURTH DAY OF MARCH TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL No.907 OF 1998 BETWEEN Golajapu Antarvedi. …APPELLANT AND Golajapu Govind Rao and others. …RESPONDENTS Counsel for the Appellant: MS. SRI DEVI Counsel for Respondents: MR. VENKATESWARA RAO GUDAPATI The Court made the following: - JUDGMENT: Plaintiff in O.S.No.93 of 1984 before the District Munsif, Shringavarapu Kota, is the appellant in this appeal. 2. For the sake of convenience, the parties are referred to as plaintiff and defendants. The facts, in brief, are: (a) The appellant/plaintiff filed the aforesaid suit to declare that the plaintiff and defendants 1 to 4 are having 1/5th share in the suit house and sought partition into 5 equal shares and mesne profits. The eastern portion of the suit house was said to be sold by the first defendant to the fifth defendant and therefore, the fifth defendant was impleaded and recovery of possession from him with respect to said eastern portion was sought. (b) The plaint allegations are that the husband of the plaintiff late Golapaju Kannayya purchased Ac.0.05 cents of land in Kothavalasa village in Sy.No.140/2 under registered sale deed – Ex.A1 dated 25.01.1952 and that two rooms were constructed in that site. The plaintiff claims after the death of her husband Kannayya, because of the disputes between her and the first defendant, the plaintiff was residing in one room in the western portion and the first defendant in the other portion towards east. It is further alleged that the first defendant had inducted the fifth defendant initially as a tenant in the eastern portion and it later transpired that he has executed a registered sale deed in favour of the fifth defendant under Ex.B2 dated 01.10.1983. The plaintiff, therefore, alleges that she had issued suit notice Ex.A2 dated 26.10.1983, which was replied to under Ex.A3 dated 27.11.1983 by the fifth defendant and thereafter, filed the present suit. 3. In the suit, defendants 1 and 5 filed written statements but the judgment of the trial Court records as if only the fifth defendant filed the written statement whereas the lower appellate Court refers to the written statement filed by both defendants 1 and 5. I have verified from the records and it appears correct that defendants 1 and 5 have filed written statements. However, neither of the defendants 1 to 4 participated in the trial nor examined themselves and only the fifth defendant has contested the suit. 4. The basic defence of the fifth defendant is that Late Kannayya had ancestral properties at some other village, which he had sold and purchased the suit schedule house as well as another house to the south. The said house to the south was settled by the plaintiff in favour of her daughters – defendants 2 and 3 under Exs.B12 and B13 dated 07.06.1972 and 05.04.1973 respectively. It was, therefore, contended that the suit schedule house as well as the other house to the south are both ancestral properties and if a partition decree as sought for by the plaintiff is granted the first defendant would be entitled to ½ share and that the sale in favour of the fifth defendant under Ex.B2 has to be counted towards the first defendant’s ½ share. It was also alleged that defendants 2 and 3, who acquired rights over the other house under Exs.B12 and B13, do not, in fact, have legal right inasmuch as only the plaintiff had executed the said settlements. 5. The trial Court considered the evidence of P.Ws.1 and Exs.A1 to A3 marked on behalf of the plaintiff as well as the evidence of D.Ws.1 to 5 and Exs.B1 to B13 marked on their behalf and framed the following issues: 1. Whether the plaint schedule properties are the joint family properties of the 1st defendant and his father? 2. Whether there was a prior partition in between the plaintiff and the 1st defendant as alleged in the statement and if so, whether the suit is maintainable? 3. Whether the plaintiff is entitled to partition, if so, to what share? 4. Whether the settlement deeds executed by the plaintiff in favour of defendants 2 to 4 void and not binding on the 1st defendant? 5. Whether the plaintiff is entitled to mesne profits and if so, to what amount? 6. To what relief? 6. The trial Court held on issue No.1 that neither sale deeds nor other documents are filed by the defendants to show that late Kannayya had any ancestral properties and as such, there is no evidence to show that the plaint schedule house was purchased out of joint family funds and the suit house was held to be self-acquired property of Late Kannayya. On issue No.2, the trial Court held that prior partition, as pleaded by the defendants under Ex.B11 was not established, as Ex.B11 was only a Xerox copy marked subject to the objection raised by the plaintiff’s advocate and none of the defendants proved prior partition. The trial Court also held that in the absence of any material on the part of the defendants, the plaintiff and defendants 1 to 4 are entitled to 1/5th share and Exs.B12 and B13 settlement deeds executed by the plaintiff in favour of defendants 2 and 3 are valid. It was also held that the fifth defendant is not a bonafide purchaser of part of plaint schedule i.e. eastern portion and consequently, a preliminary decree was passed. 7. The lower appellate Court, on appeal, confirmed almost all the findings of the trial Court including that the schedule house is self-acquired property of late Kannayya and there is no evidence of any ancestral property. It also disbelieved the plea of partial partition sought to be proved by the defendants on the basis of Ex.B11. However, the lower appellate Court non-suited the plaintiff on the ground that the other house to the south of the suit house, which was settled on defendants 2 and 3 by the plaintiff under Exs.B12 and B13, ought to have also been part of the plaint schedule and a suit for partial partition of suit house only is not maintainable. Accordingly, the lower appellate Court dismissed the suit. Hence, this appeal. 8. By order of this Court dated 13.11.1998 the following substantial questions of law were formulated: 1. Whether the lower appellate Court was right in holding that registered settlement deeds – Exs.B.12 and B.13 executed by plaintiff in favour of her married daughters – defendants 2 and 3 and during the lifetime of her husband were joint family properties? 2. Whether the lower appellate Court was right in holding that Exs.B.12 and B.13 are not valid having held that the site, on which the rooms were constructed, was purchased under registered sale deed – Ex.A.1 dated 25-1-1952 is the self acquired property of Kannayya who is the father of D.1 to D.4 and husband of plaintiff? and 3. Whether the lower appellate Court was right in holding that plaintiff is not entitled for mesne profits? 9. The second respondent/fifth defendant filed cross-objections questioning the adverse findings of the lower appellate Court. The cross-objections were admitted on 15.06.1999. The substantial questions of law as well as the questions raised by the learned counsel for the second respondent/fifth defendant in the cross-objections, which were argued, are being dealt with hereunder. 10. Heard the learned counsel for the appellant as well as that of the respondents. 11. The lower appellate Court has rightly come to the conclusion, while agreeing with the trial Court, that there is no evidence of ancestral properties available to late Kannayya and as such, the primary contention of the learned counsel for the respondents that the aspect of blending was not considered by both the Courts below is not sustainable in order to establish blending of ancestral properties with self- acquired property and thereby giving the composite property the status of ancestral property. The defendants ought to have first shown that late Kannayya had ancestral property. Learned counsel for the respondents relied upon the evidence of the brother of late Kannayya examined as D.W.3 where he speaks of existence of some ancestral property to the family in another village. Even assuming that some ancestral property existed, there is no evidence on the part of the defendants that late Kannayya sold the said property and used the sale proceeds thereof for purchasing the suit house or the adjacent house to the south settled on defendants 2 and 3 under Exs.B12 and B13. Both the Courts below, therefore, were right in concluding that the suit house has to be treated as self-acquired property of late Kannayya. To the extent of the theory of prior partition sought to be propounded by the defendants under Ex.B11, the Courts below have concurrently rejected the said document, as it is only a Xerox copy and it was marked subject to opposition. Unless, the defendants establish and prove the said document by producing the original and examining persons connected with the said document, no finding could be rendered by the Courts below on the basis of Ex.B11 – a Xerox copy, which is not admissible in evidence. I am, therefore, unable to find any error on the part of both the Courts below in rejecting Ex.B11. 12. This leaves the last of the contentions of the learned counsel fo the appellant that Exs.B12 and B13 settlements are now sought to be nullified by the judgment of the lower appellate Court by holding that the adjacent house covered by the said documents also was self-acquired property and that the plaintiff should have filed a comprehensive suit for partition covering the suit schedule house herein as well as the said other house to the south. It is, no doubt, referred to by both the Courts below that as per the plaint allegations, plaintiff claims that the said other house was purchased by her along with late Kannayya and that she executed settlement deeds in favour of her daughters – defendants 2 and 3. However, that house is not the subject matter of this suit. The settlement deeds are of the year 1972-1973 and if, for any reason, the said settlement deeds were invalid neither the first defendant nor the fourth defendant ever questioned the said settlements in favour of the defendants 2 and 3. Even now the said settlements were questioned by the first defendant in the written statement and in any case, there is no evidence or participation by defendants 1 to 4 in the trial in the present suit. This aspect coupled with the aspect that the other house to the south is not the subject matter of the present suit, adjudication with respect to the validity or otherwise of Exs.B12 and B13 was beyond the scope of the present suit. The lower appellate Court could not have non-suited the plaintiff based on its conclusion relating to the said other house. I am, therefore, unable to sustain that part of the finding of the lower appellate Court and the ultimate conclusion. The substantial questions of law 1 and 2, therefore, deserve to be answered in favour of the appellant, in view of the above that the validity or otherwise of Exs.B12 and B13 could not have been adjudicated upon in the present suit, as it is not the subject matter of this suit. Consequently, the second appeal is allowed and the judgment and decree of the lower appellate Court is set aside while restoring the judgment and decree of the trial Court. The cross-objections are dismissed. The plaintiff shall also have right to seek determination of mesne profits by approaching the trial Court by way of an application under Order 20 Rule 12 of the Code of Civil Procedure, 1908. Insofar the fifth defendant is concerned, the trial Court shall endeavour to adjust the equities in his favour, if he is entitled thereto in law, to the extent possible in the final decree proceedings. There shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J March 24, 2011 DSK