THE HON’BLE SRI JUSTICE K.C. BHANU C.C.C.A.No.56 OF 2006 JUDGMENT: This City Civil Court Appeal, under Section 96 of the Code of Civil Procedure, 1908 (for short, “C.P.C.”), is directed against the judgment and decree, dated 04.09.2004, in Original Suit No.1109 of 1996, on the file of V Senior Civil Judge, City Civil Court, Hyderabad, whereunder and whereby, the suit, filed under Order VII Rule 1 read with Section 26 C.P.C., for partition of suit schedule property into two halves and declare that respondent Nos.1 to 4/plaintiffs are entitled to one half in schedule property and accounts of past management, was decreed. 2. Petitioner herein is defendant No.17; respondent Nos.1 to 4 are the plaintiffs and respondent Nos.5 to 28 are defendant Nos.1 to 16 and 18 to 25 respectively in the said suit. 3. The averments of plaint, in brief, may be stated as follows: Plaintiff No.1 is the husband, and plaintiff Nos.2 to 4 are the children, of Late Heera Bai, who died intestate on 09.09.1991 at Gandhi Hospital, and they are legal heirs of late Heera Bai. Defendant No.1 is the paternal aunt, and defendant No.16 is the paternal uncle, of late Heera Bai. The suit schedule property consisting of land to an extent of 544 square yards with municipal Nos.1-3-11 to 13 and 38 to 50 at Kavadiguda has been originally purchased in the joint names of late Heera Bai and defendant No.1 vide registered sale deed bearing document No.292, dated 07.08.1953. During the lifetime of late Heera Bai, in view of the job of plaintiff No.1, she was away from Hyderabad and returned to Hyderabad only in the year 1990. During the lifetime of late Heera Bai, defendant No.1, who is the joint owner of the suit schedule property along with late Heera Bai, used to pay half of the rents collected on the suit schedule property to late Heera Bai towards her half share. Defendant Nos.2 to 25 are the tenants in the suit schedule property. On the death of late Heera Bai due to cardiac attack on 09.09.1991, defendant No.1 stopped paying half share of the rents collected from the suit schedule property to the plaintiffs, who are the legal heirs of late Heera Bai. On the death of late Heera Bai, the plaintiffs filed O.P.No.2 of 1993 before I Assistant Judge, City Civil Court, Secunderabad, and obtained a Succession Certificate on 07.05.1993. After the death of late Heera Bai, the plaintiffs demanded defendant No.1 to partition the suit schedule property into two halves and hand over one half share to them since they being the legal heirs of late Heera Bai. Plaintiff No.1 addressed several letters to defendant No.1 demanding her to handover half share of the suit schedule property to the plaintiffs. But, defendant No.1 did not choose to respond nor did she come forward to partition the suit schedule property. As such, a legal notice was got issued on 03.07.1995 demanding partition of the suit schedule property into two halves but defendant No.1, in spite of receiving the same, did not choose to divide the property into two halves as demanded. The plaintiffs have also demanded defendant No.1 to pay half share of the rents received by her from the suit schedule property after the death of late Heera Bai. Defendant No.1 did not choose to comply even with the said demand. Hence, the suit for partition claiming half share in the property and half share in the rents received by defendant No.1 after the death of late Heera Bai. 4. Defendant No.1 filed written statement denying the said allegations of the plaintiffs, but admitted that late Heera Bai is her brother’s daughter and that the plaintiffs are the husband and children respectively of late Heera Bai. She also admitted that the suit schedule property is purchased jointly in the name of late Heera Bai and defendant No.1. But, it is stated that the said property has been purchased by her father during his life time for the purpose of joint family necessities, apart from purchasing other properties in the name of other members of the joint family i.e., mother of late Heera Bai etc. After the death of her father, namely, Tukoji, in the year 1982, the properties of late Tukoji including the suit schedule property was partitioned amongst his six children including defendant No.1 and in the process, defendant No.1 and her brother i.e., defendant No.16 received the suit schedule property towards their share, and herself and defendant No.16 are receiving half share each in the rents received from defendant Nos.2 to 15 and 17 to 25. In spite of her receiving the letters and legal notices from plaintiff No.1, she did not respond as she felt that plaintiffs have no right over the suit schedule property. She is not aware of the legal heir certificate being obtained by the plaintiffs on the death of late Heera Bai vide O.P.No.2 of 1993. In view of the fact that half of the suit schedule property fell to her share and the other half to the share of defendant No.16, the plaintiffs are not entitled for any share in the suit schedule property. The plaintiffs made out false claim in order to not only extract money from defendant Nos.1 and 16 but also to grab the suit schedule property. 5. Defendant No.16 in his written statement, reiterated the contents of the written statement filed by defendant No.1 and denied that he is a tenant in the suit schedule property as alleged by the plaintiffs. 6. Defendant Nos.2 to 15 and 17 to 25 filed written statements asserting themselves to be the tenants of defendant Nos.1 and 16. They also claimed that the suit schedule property belongs to defendant Nos.1 and 16 equally. They denied that the plaintiffs have any right over the suit schedule property. 7. Basing on the above pleadings, the trial Court framed the following issues for trial: “1. Whether the plaintiffs are entitled for declaration that they are entitled for half share in the suit schedule property and partition thereof? 2. Whether the defendants 1 and 16 are in exclusive possession of the suit schedule property in their own right as per family partition? 3. Whether Heerabai Hotgi was the joint purchaser with the defendants under the registered sale deed bearing document No.292/53? 4. Whether there is cause of action to file the suit? 5. To what relief?” 8. Defendant No.16 filed O.S.No.20 of 1997 against the plaintiffs and other defendants for declaration and injunction in respect of the suit schedule property. Both the suits were tried jointly and evidence was recorded in O.S.No.1109 of 1996 covering the other suit. 9. During trial, PWs.1 and 2 were examined and Exs.A1 to A20 were got marked on behalf of the plaintiffs, and on behalf of the defendants, DWs.1 to 7 were examined and Exs.B1 to B232 were got marked. 10. The trial Court, after considering the evidence on record, decreed the suit O.S.No.1109 of 1996, while dismissing O.S.No.20 of 1997. Challenging the judgment and decree insofar as O.S.No.1109 of 1996, the present appeal is filed by defendant No.17. 11. Learned counsel for the appellant/defendant No.17 contended that the property covered under Ex.A3 – registered sale deed was purchased from out of the joint nucleus of the joint family property of late Tukoji; that when a specific plea has been taken in the written statement with regard to deriving of right by the appellant, no issue has been framed; that the evidence on behalf of the defendants in the suit would clearly go to show that the property covered under Ex.A3 was purchased in the name of Lakshmi Bai (defendant No.1) and late Heera Bai by late Tukoji, father of defendant No.1; that the Municipal Tax Receipts, Electricity Bills, Rental Deeds filed on behalf of the defendants in the suit have not been taken into consideration by the trial Court; that those documents would clearly go to show that the appellant was in continuous possession and enjoyment of the suit schedule property for more than twelve years; that therefore, the appellant acquired the title by adverse possession in terms of Article 65 of the Limitation Act, 1963, (for short, “the Act”) and therefore, he prays to set aside the impugned judgment. 12. On the other hand, learned counsel for respondent Nos.1 to 4/plaintiffs contended that by virtue of Ex.A3, respondent Nos.1 to 4 along with respondent No.5/defendant No.1 are entitled to half share each in the suit schedule property; that the defendants in the suit did not adduce any evidence to show that the property covered under Ex.A3 was purchased from the income derived from the joint family property of late Tukoji; that is the reason why the trial Court has given a categorical finding with regard to that aspect; that the finding is based upon proper appreciation of evidence available on record; that in the absence of any evidence that the suit schedule property was purchased from the income of joint family property of late Tukoji, the recitals in Ex.A3 can be accepted as true and correct; that if the same has to be accepted, the parties thereto are entitled to partition of the property; that for that reason the present suit is filed and the trial Court rightly decreed the suit; that there are no grounds to interfere with the impugned judgment and hence, he prays to dismiss the appeal. 13. Now the point for determination is whether the property covered under Ex.A3 is the property purchased by Lakshmi Bai (defendant No.1) and late Heera Bai? (or) Whether the property was purchased from the income derived from the joint family properties of late Tukoji and whether Ex.A3 is a benami document? 14. If the suit schedule property is the ancestral property of one late Tukoji, who is said to be the person who purchased the property in the name of Lakshmi Bai (defendant No.1) and late Heera Bai, then the appellant/defendant No.17 would get a share in the suit schedule property as a legal heir of G.T.Babu Rao, who is one of the sons of the first wife of late Tukoji. If the evidence available on record discloses that the suit schedule property was not purchased out of the income derived from the joint family property of late Tukoji, then it can be said that the vendees to Ex.A3 alone are entitled to the suit schedule property. 15. There is no presumption that a family, because it is joint, possesses joint property or any property. When in a suit for partition, a party claims that any particular item of property is joint family property, the burden of proving it rests on the party asserting it. To render the property joint, the plaintiff must prove that the family was possessed of some property, with the income of which the property could have been acquired. 16. Admittedly, the appellant/defendant No.17 has not come to the witness box to speak her case about the purchase of suit schedule property covered under Ex.A3 by late Tukoji in the name of Lakshmi Bai (defendant No.1) and late Heera Bai or that Ex.A3 came into existence when the Hindu Undivided Joint Family is in existence. Even though the appellant was not examined as a witness in the trial Court, still she can show from other evidence that the property under dispute was purchased by late Tukoji from out of the income derived from the joint family properties and for the reasons best known to him, he put the property in dispute in the name of Lakshmi Bai and late Heera Bai. Even though DWs.1 to 7 were examined on behalf of the defendants in the suit, their evidence would not disclose that the family of late Tukoji was possessed of some property and with the income derived therefrom, the property covered under Ex.A3 was purchased. They did not speak as to source of income of late Tukoji in purchasing the property. Similarly, they did not speak that family possessed some joint property which, from its nature and relative value may have formed the nucleus from which the property in question is acquired. Further, there is no iota of evidence to show that the property covered under Ex.A3 was purchased by late Tukoji as benami in the name of Lakshmi Bai (defendant No.1) and late Heera Bai. Only one witness examined as DW.6 has stated that late Tukoji purchased the property in the name of Lakshmi Bai (defendant No.1) and late Heera Bai. But, by the date of execution of Ex.A3 in the year 1953 in the name of Lakshmi Bai (defendant No.1) and late Heera Bai by their vendor, marriage of DW.6 was not performed. So, she is not a competent witness to speak about late Tukoji purchasing the property in the name of Lakshmi Bai (defendant No.1) and late Heera Bai as benami. Therefore, in the absence of any other evidence, the trial Court has given a categorical finding that as the document Ex.A3 stands in the name Lakshmi Bai (defendant No.1) and late Heera Bai, it is deemed that the suit schedule property was purchased by them. 17. No doubt, Ex.A17, which is the receipt of payment of registration fee, would disclose that the sale consideration has been paid by one G.T. Satyanaryana i.e., father of late Heera Bai. If that is to be accepted as true and correct, the contention of the appellant/defendant No.17 that late Tukoji purchased the property in the name of Lakshmi Bai (defendant No.1) and late Heera Bai as benami cannot be accepted. Since, the appellant’s plea is that Ex.A3 was a benami transaction, the burden is heavily on the appellant to substantiate with necessary evidence. Except taking a plea that Ex.A3 is a benami transaction, there is absolutely no evidence to show that the property covered under Ex.A3 was purchased by late Tukoji from out of the income derived from the joint family properties. Therefore, in the absence of any evidence, the case of the appellant cannot be accepted. Therefore, the trial Court rightly decreed O.S.No.1109 of 1996. 18. It is one of the contentions of the learned counsel for the appellant that the appellant has been in continuous possession and enjoyment of the property for more than 40 years and so, she acquired the right, title and interest by adverse possession. To claim adverse possession under Article 65 of the Act, there must be a pleading that the appellant was in the continuous and uninterrupted possession of the property to the knowledge of the true owner. In order to establish adverse possession in respect of joint family property, ouster must be pleaded and proved. There cannot be any dispute that adverse possession can be claimed against others property, but not on one’s own property. Even otherwise, except taking a plea that the appellant was in possession of the suit schedule property for over twelve years, no evidence is adduced to substantiate the same. In the absence of any evidence any amount of pleading is valueless. Therefore, the plea of adverse possession cannot come to the rescue of the appellant in this case. Hence, the impugned judgment needs no interference by this Court. The appeal is devoid of merit and is liable to be dismissed. 19. Accordingly, the C.C.C.A. is dismissed confirming the judgment and decree, dated 04.09.2004, in Original Suit No.1109 of 1996, on the file of V Senior Civil Judge, City Civil Court, Hyderabad. There shall be no order as to costs. _______________ K.C. BHANU, J February 28, 2011 MD IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE TWENTY EIGHTH DAY OF FEBRUARY TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE K.C. BHANU C.C.C.A.No.56 OF 2006 Between: Smt. G. Santha Bai .....APPELLANT AND Ramakrishna Hotgi and others ....RESPONDENTS The Court made the following: THE HON’BLE SRI JUSTICE K.C. BHANU C.C.C.A.No.56 OF 2006 February 28, 2011