THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.130 OF 2011 20.10.2011 Between: Keerthi Dhanalakshmi …Appellant AND Vithanala Somaraju And others. …Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.130 OF 2011 JUDGMENT: The first defendant is the appellant. Being aggrieved by reversing Judgment and decree dated 26.10.2009 in A.S.No.29 of 2006 on the file of the Court of the Senior Civil Judge, Pithapuram, she filed the instant second appeal. The respondents 1 and 2 herein (hereafter, the plaintiffs) instituted O.S.No.89 of 1998 on the file of the Court of the Junior Civil Judge, Pithapuram for partition of suit schedule property – a piece of dry land admeasuring Acs.0.13½ cents with a thatched house bearing No.1-68 comprised in survey No.48/1 (patta No.139) situated at Kumarapuram Village of Pithapuram Mandal in East Godavari District. The case of the plaintiffs in brief is as follows. The plaintiffs who are brothers purchased the suit schedule land from Vithanala Venkayamma under registered sale deed dated 13.03.1985 and taken delivery of possession. Defendants 1 and 2 along with two others trespassed into the suit schedule land. Therefore, plaintiffs filed O.S.No.79 of 1986 on the file of the Court of the District Munsif, Pithapuram. The defendant No.1 disputed the Will executed by her father Naganna in favour of Venkayamma. The suit was dismissed holding that the Will is not genuine, and that the sale deed dated 13.03.1985 in their favour is valid. Therefore, they are entitled for one-ninth share of Vithanala Venkayamma in the suit schedule property, which they can get by filing a suit for partition. The plaintiffs then filed A.S.No.4 of 1993 on the file of the Court of the Senior Civil Judge, Pithapuram. The same was dismissed holding that the sale deed in favour of the plaintiffs is valid to the extent of share of Venkayamma, who had six daughters and two sons. First plaintiff purchased one-ninth undivided share from four children of Venkayamma and took symbolic delivery of the property. The first defendant also purchased one-ninth share from her sister Suryakantam. Plaintiffs and defendants are therefore joint owners of schedule property and hence suit for partition and consequential permanent injunction. First defendant filed written statement which was adopted by defendants 4 to 10. Defendant No.2 filed separate written statement whereas defendant Nos.3 and 11 remained ex parte. The first defendant disputed the genuineness of the sale deed alleging that the same is not supported by consideration. He also alleged that the first defendant alone is in exclusive possession of the property and she has perfected her title by adverse possession. She denied the right of children of Venkayamma. The trial Court framed eight issues. Rejecting the plea for partition, the trial Court recorded a finding that the first defendant has perfected her title by adverse possession and accordingly dismissed the suit. The first appellate Court reversed the finding and allowed the suit for partition. In this appeal, the counsel for appellants would submit that the first appellate Court failed to appreciate evidence properly; when it was held in O.S.No.79 of 1986 that the sale deed executed by Venkayamma in favour of plaintiff No.1 is not valid, partition ought not to have been ordered. As found by the first appellate Court, Vithanala Naganna and Vithanala Venkayamma had two sons and six daughters. The sale deed executed by Venkayamma on 13.03.1985 was held to be valid in A.S.No.4 of 1993 which was filed against O.S.No.79 of 1986. Indeed, even the Court of District Munsif in O.S.No.79 of 1986 upheld the right of the plaintiffs to seek partition of one-ninth share of Venkayamma. After the first round of litigation, the plaintiffs purchased the share of Narayanamma, Sriramulu, Suryakantam and Rajya Lakshmi, who are children of Venkayamma. Therefore, virtually they become owners of three shares in the schedule property. Taking this into consideration, the first appellate Court passed preliminary decree directing the division of property in to nine equal shares and allotment of three shares to first plaintiff, one share to the plaintiffs jointly, two shares to the first defendant, one share to the eleventh defendant, one share to the third defendant and one share to the defendants 4 to 10 jointly. This finding is based on correct appreciation of facts. The second appeal is misconceived and is accordingly dismissed. No costs. _______________ (V.V.S.RAO, J) 20.10.2011 pln