THE HON’BLE SRI JUSTICE C.V.RAMULU APPEAL SUIT No.646 OF 1986 DATED: 03-03-2010 Between: Pujari Rajeswaramma. .....APPELLANT AND Pujari Saraswathamma & others. .....RESPONDENTS ORDER This Appeal Suit is directed against the judgment and decree, dated 04-11-1985 made in O.S.No.113 of 1981 on the file of the learned Principal Subordinate Judge, Kurnool, whereunder the suit for partition was decreed as prayed for, except rejecting the Miscellaneous Petition. 2. The 2nd defendant is the appellant. It appears, the respondents-plaintiffs laid the suit in O.S.No.113 of 1981 for partition of ‘B’ schedule property of Ac.36.00 of agricultural land. It was the case of the plaintiffs that the suit schedule property was a joint family property and it was never partitioned earlier either by oral or written deeds, whereas, it was the plea of the defendants 1 and 2 that the suit schedule property was the property of their father-Subba Rayudu and he got it under an oral partition made prior to 1955. The Court below framed the following issues for trial: 1. Whether the division pleaded by the defendants is true, valid and binding on the plaintiffs? 2. Whether the plaintiffs lost title and interest in the suit properties for the reasons stated in para 3 of the written statement? 3. Whether the suit is barred by constructive res judicata ? 4. Whether the suit is barred by limitation? 5. Whether the plaintiffs are entitled for past mesne profits at the rate claimed in the plaint? 6. Whether the plaintiffs are entitled d for future mesne profits? 7. Whether the plaintiffs are entitled for any preliminary decree? 8. To what relief are the plaintiffs entitled? 3. On behalf of the plaintiffs, P.Ws1 to 3 were examined and Ex.A1 was marked. On behalf of the defendants, D.W.1 was examined and Exs.B1 to B6 were marked. The Court marked Exs.X1 to X5. 4. After detailed examination of the entire oral and documentary evidence, the trial Court came to the conclusion that there was no oral partition prior to 1955 or as on the date of filing of the suit and the entire suit schedule property is the joint family property of their ancestors. Therefore, the same is liable for partition as prayed for and the suit was decreed as such. Aggrieved by the same, the present appeal is filed. 5. Learned counsel appearing for the appellant strenuously contended that the ancestors of the plaintiffs and the defendants were in possession of Ac.200.00, and about Ac.170.00 was sold away for domestic needs of the family. The schedule property is the property of their father-Subbarayudu. For this purpose, the learned counsel appearing for the appellant submitted that the schedule property was the subject-matter of an auction by the civil Court and at that point of time their father-Subbarayudu filed a claim petition, and the claim petition was allowed and as such, Subbarayudu became the absolute owner of the property and as such the question of partition of the said property does not arise. In this regard, the learned counsel has drawn the attention of the Court to the various pleadings and the findings recorded by the trial Court and stated that the trial Court ought not to have made such a finding without there being any concrete evidence to show that there was an oral partition earlier. However, it came to light that the E.P. which was filed for conducting Court auction of the schedule property and the claim petition filed by the father of the defendants-Subbarayudu was in pursuance of the decree obtained by the third parties against the entire joint family. However, it appears only Subbarayudu filed a claim petition when the same sought to be auctioned in the Court proceedings and he has succeeded in the said claim petition, but it appears that the same was in view of the fact that he was being one of the joint family members he filed the claim petition. Under those circumstances, the trial Court came to the conclusion that it was a joint family property. In this regard, it is necessary to note the findings of the trial Court as under: “One another important factor which cannot be forgotten at this stage is this: Subbarayudu filed E.A.5255 (Ex.X2) and Ex.A53/55 (Ex.X1). He gave the affidavit in support of those two applications. It is mentioned therein that the properties attached and sold in E.P.24/53 are the joint family properties. He did not specifically say that the said joint family consists of himself and his sons. It is undoubtedly clear that he gave the said affidavit as one of the judgment-debtors in the E.P. The very fact that he described the properties sold in Court auction as the joint family properties goes to show that it is and must be joint family property of himself and his brother, Rama Murthy”. 6. In view of the above and in view of the oral & documentary evidence, the other issues were also answered in favour of the plaintiffs. Therefore, I am of the opinion that it cannot be said that the trial Court committed any error calling for interference of this Court in decreeing the suit as prayed for, after being found that the schedule property was joint family property of Subbarayudu as well as Rama Murthy. 7. There are no grounds to interfere with the judgment and decree passed by the trial Court. As such, the Appeal Suit is liable to be dismissed and accordingly the same is dismissed. There shall be no order as to costs. ___________________ C.V.RAMULU,J 03rd March, 2010 Tsy