THE HONOURABLE SRI JUSTICE P. SWAROOP REDDY A.S.No.1895 OF 2001 JUDGMENT: This is an appeal against the judgment of the learned Senior Civil Judge, Pithapuram, in O.S.No.6 of 1999. 2. Heard. 3. The first defendant is the appellant. The relevant facts of the case, as per the original plaint, are that the first plaintiff is the wife of Pakeer Rao. Defendants and another plaintiff are his children. First defendant being son, second defendant and second plaintiff being daughters. Plaint A and B schedule properties are separate properties of Pakeer Rao. Out of which, plaint ‘A’ schedule property was gifted to second defendant by Pakeer Rao and his wife (first plaintiff) under a registered gift deed dated 12.11.1980. But, the second defendant was not put in possession of the property. Thus, the property continued to be in possession of Pakeer Rao. Later, D2 sold the property to her father Pakeer Rao under an agreement of sale. Thus, ‘A’ schedule property is the absolute property of Pakeer Rao. ‘B’ schedule property is also separate property of Pakeer Rao. ‘C’ schedule property, a house also is the absolute property of Pakeer Rao. Pakeer Rao died intestate on 29.11.1997 and all the ‘A’ to ‘C’ schedule properties devolved upon the plaintiffs and the defendants. They are entitled for equal shares. The plaintiffs and defendants are in joint possession and enjoyment of the properties. D1 recently submitted an application to the M.R.O., Pithapuram for obtaining pass book. D2 also submitted similar application. Thus, defendants are not cooperating for partition of the properties. Plaintiffs demanded the defendants to partition the properties into four equal shares, but the defendants did not cooperate and they jointly raised paddy and sugarcane crops in the plaint ‘A’ and ‘B’ schedule properties. As the defendants are not cooperating for partition, the plaintiffs filed the suit for partition and separate possession of the 1/4th share of the properties. 4. D-2 remained exparte and D-1 filed a written statement contending that ‘A’ and ‘B’ schedule properties are not the separate properties of Pakeer Rao. Entire properties are ancestral properties. It is true that ‘A’ schedule property was gifted to D2 by Pakeer Rao and his wife(first plaintiff) under a registered gift deed dated 12.11.1980 but she was not put in possession of the property and the property was in possession of Pakeer Rao. Subsequently, D-2 sold the same property to her father, Pakeer Rao. The said property was purchased by Pakeer Rao as Manager of the joint family. It was with nucleus of joint family funds and the earning of the sons of Pakeer Rao. The marriages of second defendant and second plaintiff were performed prior to 1975, during which landed property and gold etc., were given. As the marriages of the second plaintiff and second defendant were performed long prior to 1975, they are not members of joint family. Their shares were already given at the time of performance of their marriages. After the death of Pakeer Rao, in the panchayat it was decided that the first defendant would maintain the mother(first plaintiff) and would give 15 kata bags of paddy towards her maintenance every year etc. 5. On the basis of above pleadings, the following issues were framed: 1. Whether plaint ‘A’ to ‘C’ schedule properties are ancestral properties of 1st defendant and his father Pakeer Rao? 2. Whether the arrangement made for the maintenance of 1st plaintiff is true? 3. Whether the plaintiffs are entitled for partition? 4. To what relief? 6. On behalf of the plaintiffs, P.Ws. 1 and 2 were examined and Exs.A1 to A16 were marked. On behalf of the defendants, D.Ws. 1 to 3 were examined and Exs.B1 and B2 were marked. 7. On the basis of above material, the learned trial Judge decreed the suit. 8. Now, the contention of the learned counsel for the appellant is that the plaint schedule property was the ancestral property of late Pakeer Rao, husband of first plaintiff and father of second plaintiff and defendants 1 and 2. That part of the property was succeeded from his ancestors and that some of the property was acquired by him with joint family funds. As such, entire property becomes ancestral property and plaintiffs 1 and 2 and second defendant are not entitled for equal shares along with him. 9. The only question that arises for consideration is, as to whether the suit schedule properties are ancestral properties of late Pakeer Rao or whether those are his self acquired properties. 10. The burden heavily lies on the appellant-first defendant to prove that the properties are ancestral properties. His evidence is that the plaint schedule properties were acquired with joint family efforts of his father and himself. He used to do personal cultivation. ‘A’ schedule property was purchased from his sister with joint family funds of himself and his father. He and his father sold away Ac.1.00 cents of land and with the sale proceeds, they performed the marriages of daughters of P.W.2, i.e. second plaintiff. He and his father enjoyed the schedule properties jointly. During the lifetime of his father and after his death, he has been cultivating the suit schedule property. His sisters never enjoyed the properties. Even in his chief examination, he stated that his mother had right to claim half share in the property, but she cannot claim because he is paying maintenance of 15 bags per year to her. Thus, D.W.1 even in his chief examination never spoke about the property being inherited by his father. Though he stated that the property was purchased by his father and himself with their joint efforts, he has not filed any documentary evidence to show that the property ever stood in the name of any of the ancestors including his paternal grand father to show that it is ancestral property. The evidence of D.W.2 shows that he is a native of village of the parties. He spoke about his acquaintance with the family and parties, but did not speak anything about the ancestral nature of the property. D.W.3 is another resident of the village that knows the parties to the litigation who also never spoke about the suit property being ancestral property or any portion of the suit property being ancestral property or of there being any ancestral property income, from out of which the part of suit schedule property was purchased. The documents filed on behalf of the plaintiffs are land revenue receits in the name of Pakeer Rao, demand notice to Pakeer Rao etc. But nothing is filed to show that the property ever stood in the name of father of Pakeer Rao to show the ancestral nature of the property. Thus, there is absolutely no material to show that any portion of the suit schedule property was ancestral property to contend that from out of that income, the other property was purchased. 11. The further contention of the learned counsel for the appellant is that Pakeer Rao and first defendant with their efforts have purchased the property by doing cultivation and that they had no other avocation, but this would not improve the case of the appellant. 12. Considering these circumstances, there is absolutely no material to interefere with the finding of the learned trial Judge. Appeal fails and the same is accordingly dismissed. No order as to costs. ___________________ P. SWAROOP REDDY, J. 24th August 2009 Rns