*THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY +Second Appeal No.204 of 2004 % Dated 22.11.2011 # P.Kalyana Chakravarthy. ….Appellant $ The State of A.P., and others ….Respondents ! Counsel for the appellant : Sri A.Surya Narayana Murthy ^ Counsel for respondents : G.P. for Arbitration < GIST: > HEAD NOTE: ? Cases referred: THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY SECOND APPEAL No.204 of 2004 JUDGMENT: The appellant is the son of late P.Vekata Rama Rao. The joint family comprising of Venkata Rama Rao and his sons, i.e., the appellant and a person by name Venkata Chandra Sekhar, held certain items of property; one of them being the land in R.S.No .38 of 1 of Edulamaddali Village, Krishna District. A family partition took place through a registered document, dated 07.09.1981, in which the three coparceners were allotted separate shares mentioned in Schedules A, B and C of that document. The appellant was allotted an extent of Ac.1.44 cents. Venkata Rama Rao emerged as the highest bidder to run a group of arrack shops in Peddaparupudi, Venkapamula and Juzzavaram villages for the excise year 1989-90. Since he did not pay the monthly privilege fee in November 1989, the licences were cancelled and the shops were put to re-auction. The Government sustained loss of Rs.3,93,230/- in the process. To recover the said amount, the respondents herein initiated proceedings against Venkata Rama Rao. He is said to have represented that the entire land in Survey No.38/1 belongs to him and offered it as security for payment of the privilege fee. The respondents sought to proceed against the same and got attached the property. The appellant filed O.S.No.39 of 1991 in the Court of Principal District Judge, Gudivada against the respondents for the relief of declaration of title and perpetual injunction vis-à-vis the said property viz., Ac.1.44 cents. He pleaded that severance of status had taken place in the family through partition deed dated 07.09.1981 marked as Ex.A.1 and that there was absolutely no basis for the respondents to proceed against the said property. It was also pleaded that ever since the date of partition, he is in effective possession and enjoyment of the property. The respondents filed a written statement opposing the suit. According to them, Venkata Rama Rao filed an affidavit to the effect that he owns the entire land in R.S.No.38/1 and that the so-called partition is nothing but a device to defeat the interests of the Government. Alternatively, it was pleaded that even there was any partition, it was not acted upon. The trial Court decreed the suit, through its judgment, dated 24.11.1995. The respondents filed A.S.No.31 of 1999 in the Court of Additional Senior Civil Judge, (Fast Track Court), Gudivada. The appeal was allowed on 19.12.2003. Hence, this second appeal. Heard the learned counsel for the appellant and the learned Government Pleader for Arbitration. The suit was filed for the two-fold relief of declaration of title and perpetual injunction. The trial Court framed two corresponding issues. To prove his case, the appellant examined P.Ws.1 to 3 and filed Exs.A.1 to A.21. On behalf of the respondents, D.Ws.1 and 2 were examined and Exs.B.1 to B.14 were filed. The suit was decreed and in the appeal preferred by the respondents, the lower appellate Court framed the two following points for its consideration: 1) Whether the judgment and decree of the lower Court is sustainable according to law? 2) Whether there are any valid grounds to allow the appeal? The appeal was ultimately allowed. The fact that the appellant is the son of late Venkata Rama Rao was not disputed by the respondents. It may be true that by filing an affidavit marked as Ex.B.1, Venkata Rama Rao may have made the respondents to believe that he is the absolute owner of the entire property in Survey No.38/1. The fact however remains that partition took place way back in the year 1981, through Ex.A.1. The father and two sons were allotted three separate shares mentioned in Schedules A, B and C together with the values. The appellant has also placed before the trial Court the cist receipts from 1993 to 1995 marked as Ex.A.21 to prove that he was in possession and enjoyment of the property. Howsoever perfect an affidavit filed by a third party may be, by itself, it does not confer any title upon him, if in fact he did not possess it. The principal contention urged by the respondents herein, whether in the suit or in the first appeal, is that though a partition may have taken place in the family, it was no acted upon. Such a plea cannot be accepted at all. Once the partition in accordance with law takes place, it brings about separation of status among the coparceners and from then onwards, the property ceases to be joint. Further, the law does not define the manner in which each coparcener must enjoy his share of the property, after partition. Even if it is a case, where coparceners lived together and were doing cultivation jointly, the legal status brought about through the partition deed cannot be ignored. It is only in rare cases that the phenomenon of re-union can be established. That however can take place only when all the coparceners come together and put their properties in the hotchpot. These properties may not only include those that have fallen to the share but also acquired subsequent to partition. That was not even the plea in the instant case. The lower appellate Court committed serious illegality in ignoring the partition evidenced by Ex.A.1. The substantial question of law viz., “whether the partition validly evidenced through a document can be ignored in the absence of any plea as to re-union”, arises for consideration in this second appeal and the same deserves to be answered in favour of the appellant. Therefore, the second appeal is allowed. It is however left open to the respondents to proceed against the estate of late Venkata Rama Rao. There shall be no order as to costs. __________ 22.11.2011 Note: L.R.Copy to be marked. (B/o) JSU THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY SECOND APPEAL No.204 of 2004 Date: 22.11.2011 JSU