THE HON’BLE MR JUSTICE L. NARASIMHA REDDY SECOND APPEAL No.561 of 2010 JUDGMENT: Defendant No.1 in O.S.No.18 of 2001 on the file of the Senior Civil Judge, Rayachoty filed this second appeal. For the sake of convenience, the parties are referred to as arrayed in the suit. Plaintiff and defendant Nos.1 to 3 are sisters and children of one Sri Gongadi Pitchanna. He had no male issues. It was pleaded that he possessed plaint “A” and “B” schedule properties and that on 15.11.1957, he executed a gift deed donating “A” schedule property in equal shares to his daughters. He executed another gift deed, dated 09.08.1974, but in favour of his three daughters i.e. plaintiff and defendant Nos.2 and 3. Subsequently, the plaintiff and defendant Nos.2 and 3 are said to have gifted one-fourth share of “B” schedule property to defendant No.1 on 06.09.1984. Reference was made to certain internal transactions and sale of parts of the properties. The plaintiff pleaded that the property is in enjoyment of defendant No.1 and despite repeated requests, partition thereof was not affected. Defendant Nos.2 and 4 to 6 remained ex parte. The suit was contested by defendant Nos.1 and 3. Defendant No.1 pleaded that the properties are no longer held in joint and the parties are not only enjoying their respective shares exclusively, but also several transactions have taken place over the decades. Defendant No.3 pleaded that the plaintiff is not entitled for a decree. Through its judgment, dated 19.04.2006, the trial Court passed a preliminary decree allotting 1/4th share, each, to the plaintiff and defendant Nos.1 to 3. Defendant No.1 filed A.S.No.31 of 2008 in the Court of the V Additional District Judge, Rayachoty. The appeal was dismissed on 04.11.2009. Hence, this second appeal. Sri L.J.Veera Reddy, learned counsel for the plaintiff-defendant No.1, submits that the partition is claimed on the basis of a gift deed, which has come into existence more than half a century ago. He contends that ever since the gift deed was executed, the parties have enjoyed their respective shares and some of them have also effected transfers. He further contends that a decree for partition of the properties at this length of time is untenable and would unsettle the state of affairs which have come into existence over the past several decades. On the basis of the pleadings before it, the trial Court framed the following issues and additional issues: Issues: 1. Whether the plaintiff is entitled for seek for partition, if so to what share? 2. To what relief? Additional Issues framed on 17.03.2003: 1. Whether the plaintiff sold Acs.0.30 cents of land in item No.3 of the plaint ‘B’ schedule and not entitled for any share therein? 2. Whether the suit is bad for non-joinder of necessary parties? 3. Whether the Court fee paid is not correct? Additional Issues framed on 12.08.2004: 1. Whether Avulakunta Subbanna, Nandi Chinna Pakkeraiah, Pallu Gangi Reddy, are necessary parties to the suit and the suit without them is liable for dismissal for non-joinder of necessary parties? 2. Whether Avulakunta Lakshumamma is in possession and enjoyment of Ac.0.49 cents out of Ac.1.83 cents in Sy.No.1082/1? On behalf of the plaintiff, PWs.1 and 2 were examined and Exs.A1 to A14 were marked. On behalf of the defendants, D.Ws.1 to 3 were examined and Exs.B1 to B10 were marked. A preliminary decree was passed as prayed for by the trial Court and the same was challenged before the lower appellate Court. The lower appellate Court framed the following points for its consideration: (1) Whether the suit is bad for non-joinder of necessary parties i.e. Avulakunta Lakshumamma, A.Subbanna, Nandi Chinna Pakkeraiah and Pallu Gangireddy? (2) Whether the plaintiff sold away Ac.0.30 cents of land in item No.3 of the plaint B schedule and therefore not entitled for any share therein? (3) Whether the plaintiff is entitled for a preliminary decree directing the division of plaint A schedule into four equal shares and plaint B schedule into two equal shares and to allot one such shares in both A and B schedule properties to the plaintiff and to deliver the same through the process of Court as prayed for? (4) Whether there are any sufficient grounds to set aside the judgment and decree dated 19.04.2006 passed in O.S.No.18 of 2001 on the file of the Senior Civil Judge’s Court, Rayachoty? (5) Whether the Court fee paid by the plaintiff is correct? Ultimately, it affirmed the preliminary decree passed by the trial Court. Defendant No.1 does not dispute the fact that the property held by their father was gifted through two gift deeds, which are marked as Exs.A1 and A2. The plaintiff and defendant Nos.1 to 3 derived right and title to the suit schedule property only through those two documents. It is a different matter that subsequently, certain transactions have taken place among the parties. The fact remains that Exs.A1 and A2 created shares in favour of the plaintiff and defendant Nos.1 to 3 in plaint ‘A’ and ‘B’ schedule properties. A suit filed by one of the co-sharers or co-owners can be resisted only by taking the plea of prior partition or relinquishment of right by a plaintiff vis-à-vis her share. None of these contentions were urged. The fact that certain transactions took place among the parties was admitted by the plaintiff herself. She stated that under Ex.A2, only three sisters were given shares in ‘B’ schedule property and herself and defendant Nos.2 and 3 have created share in favour of defendant No.1 in the year 1984, through Ex.A3. She has also referred to certain other transactions. As long as there was no plea raised in the suit to the effect that prior partition has taken place, the preliminary decree for partition cannot be resisted at all. It is not as if the preliminary decree and subsequent partition would nullify the transactions that have taken place over the years. If the transactions are found to be true and genuine, the property covered by them would certainly be allotted to the sharers concerned. If ultimately it emerges that the share held by the plaintiff or any of her sisters has been totally exhausted, such persons would not be entitled for any share. However, partition as such must take place, so that the disposition under Exs.A1 to A3 becomes complete and effective. The trial Court and the lower appellate Court have examined the matter from the correct angles and this Court is not inclined to take a different view. The second appeal is accordingly dismissed. There shall be no order as to costs. _________________________ L.NARASIMHA REDDY,J Dt:28.06.2010 kdl