IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH AT HYDERABAD MONDAY THE FOURTH DAY OF JULY TWO THOUSAND AND ELEVEN PRESENT THE HONOURABLE SRI JUSTICE R. KANTHA RAO SECOND APPEAL No. 60 OF 2004 Between: B. Munichenchuramma Pillai (died per LRs) … Appellant-Plaintiff V/s. K. Saraswathi & 5-Ors. … Respondents- Defendants Counsel for the Appellants : Sri MP Chandramouli Counsel for the Respondents : Sri A.Chandraiah Naidu for R3 Sri A. Sudershan Reddy for R-1 & R- 4 The Court made the following : (Judgment follows next page). THE HONOURABLE SRI JUSTICE R. KANTHA RAO SECOND APPEAL No. 60 OF 2004 JUDGMENT : This second appeal is filed against the judgment and decree dated 14-102003 passed in AS.No. 2 of 2002 by the Senior Civil Judge, Srikalahasti, Chittoor district, confirming the judgment and decree dated 31-01-2002 passed in OS.No. 176 of 1998 by the Junior Civil Judge, Satyavedu. 2. Heard Sri P. Chandramouli, the learned counsel appearing for the appellants, Sri A.Chandraiah Naidu and Sri A.Sudershan Reddy, the learned counsel representing the respondents 1, 3 & 4. None appears for the remaining respondents. 3. Initially the first respondent instituted the suit for partition of the plaint schedule properties into four equal shares and to allot one such share to the plaintiff. Pending the suit, the first plaintiff-appellant died and the second plaintiff was brought on record as legal representative of the deceased. 4. The appellants-plaintiffs laid their claim for partition on the ground that the properties are ancestral properties belonging to common ancestors namely, B.Subramanyam Pillai and B. Sreenivas Pillai. 5. The case of the appellants is that after the demise of Bathalavallam Srinivas Pillai and Bathalavallam Subramanyam Pillai, Bathalavallam Vijayaraghava Pillai, who is the father of D-1 to D-3 was acting as kartha of the joint family consisting of himself and his three brothers B.Munichencurama Pillai, the first plaintiff and B. Pattabhirama Pillai and B.Damodaram Pillai, who are the defendants 4 and 5 and that he was managing the entire properties. Vijayaraghava Pillai died in the year 1985. The properties were never divided among the members of the joint family. The version of the plaintiffs is that since Vijayaraghava pillai was in the village, he was managing the properties and giving the share of produce to the other co-sharers. Subsequently the third defendant, who is said to be a poor person was permitted by defendants 1, 2, 4 and 5 to live in “B” schedule property and to look after the joint family properties and the third defendant used to manage the joint family properties till 1998 i.e., for a period of six or seven years. It is also submitted by the plaintiffs that the third defendant clandestinely executed a nominal registered sale deed dated 03-7- 1977 for Rs.6000/- in respect of item No. 3 of the plaint schedule properties in order to harass the plaintiffs, who were claiming their share in the property. Thus, the version of the plaintiffs is that the properties were never partitioned and they are entitled for share in the properties. 6. The third defendant admitted the relationship between the parties but denied the other allegations. Her version is that there cannot be more than one common ancestor to a family and the plaintiff omitted to mention the name of the common ancestor. She further contended that Srinivasa Pillai and Subramanyam Pillai were never in possession of the suit properties at any time. She also contended that Vijayaraghava Pillai never acted as Manager of the family. Her version is that the father of the third defendant who was working as Teacher at Bathallavallam village and had no property not even a residential house. After, he shifted to Bathallavallam village, the village elders provided shelter to him in Government land and they also got constructed a house in a vacant site available in the village. Thus, the father of the third defendant was living in the house with his children and was enjoying the properties given to him by the elders. Subsequently in recognition of his possession and right in the schedule property the Government issued patta in his favour. Subsequently after the death of the father of the third defendant, according to a family arrangement, the defendants 1 and 2 agreed not to claim any right in the schedule mentioned properties and third defendant has been enjoying the property in her own right by paying land revenue to the Government and in recognition of her possession and enjoyment of the property, the Government issued pattedar passbook in her favour for item Nos. 1 and 2 of the plaint schedule properties. The Government also issued pattedar passbook in favour of the sixth defendant for item no.3 of the plaint schedule property, which was sold to the sixth defendant by the third defendant under registered sale deed. Thus, according to third defendant, the properties exclusively belong to her in which the plaintiffs have no right to claim partition. 7. The following points arose for consideration before the courts below: i) Whether the properties are joint family properties of the plaintiff or whether they are self-acquired by the father of the third defendant ? ii) Whether the plaintiffs are entitled for any share in the schedule mentioned properties ? 8. Both the courts below have recorded concurrent findings basing on the oral and documentary evidence Exs.B-1 to B-13 which are pattedar passbook, title deeds and land revenue receipts and copies of adangals and held that the properties are self acquired properties of the third defendant. There is no dispute about the fact that properties are recorded in the name of the third defendant. The plaintiffs have not adduced any iota of evidence showing that the properties are joint family properties. 9. Under Hindu Law, merely because members of the family are joint there is no presumption that the properties held by athem are the joint family properties. A person who asserts that the properties are joint family properties must prove that they are joint family properties and in the instant case, the plaintiffs were unable to adduce evidence to show that the properties are joint family properties. Both the courts below have recorded a finding that the plaintiffs failed to plead and establish that as to who is the common ancestor. Further as to how the revenue records relating to the schedule mentioned properties are being maintained in the name of the third defendant. Therefore, both the courts below have rightly held that the plaintiffs who are unable to prove that the properties are joint family properties are not entitled for any share in the schedule mentioned properties. 10. The only ground alleged in the second appeal is that the findings recorded by both the courts below are perverse. But upon considering the entire evidence on record and the judgments rendered by both the courts below, this Court is of the view that the findings are based on evidence and they are strictly in accordance with law. The trial Court as well as the first appellate court have dealt with all the issues in a proper perspective in relation to the pleadings and evidence of the parties to the suit. The contentious issue is dealt with basing on the evidence available on record and thus the judgments of both the courts below in the present case do not suffer from any illegality or irregularity in not dealing with the issues properly. In fact, there is no substantial question of law involved in this second appeal for consideration. 11. The second appeal is, therefore, dismissed. There shall be no order as to costs. _________________________ JUSTICE R . KANTHA RAO 04-07-2011 I s L THE HONOURABLE SRI JUSTICE R. KANTHA RAO SECOND APPEAL No. 60 OF 2004 Circulation No. 14 Date: 04-07-2011 Court Master: I s L Computer No. 43