THE HON’BLE SRI JUSTICE C.V. RAMULU A.S.No. 792 of 1992 JUDGMENT: This appeal is preferred against judgment and decree made in O.S. No. 54 of 1984 on the file of learned Additional District Judge, Rajahmundry, East Godavari District, dated 27.1.1989. Appellant No.1 was plaintiff No.1 in O.S. No. 54 of 1984 and respondents are defendants. During the pendency of appeal, appellant No.1 died and his legal representatives were brought on record as appellants 2 and 3, vide Court Order dated 17.3.2008 in ASMP No. 493 of 2008. For the sake of convenience, the parties are referred to as arrayed in the original suit. Plaintiffs filed the suit – O.S. No. 54 of 1984 – for partition of the plaint schedule properties into 32 equal shares and for allotment of nine such shares each to plaintiffs 1, 2 and 2nd defendant and one such share to each of plaintiffs 3, 4 and 5 and defendants 1 and 3, or, in the alternative, for applying the provisions of the Partition Act and sell the plaint schedule properties and allotting such shares to plaintiffs and defendants from out of the said amount in the above respective shares and for future profits and costs. It is the case of the plaintiffs that one Jijjuru Bhavannarayana had a wife by name Annapurnamma and plaintiffs 1 to 5 are their children. Annapurnamma died in the year 1973. During her lifetime itself, plaintiffs’ father Jijjuru Bhavanarayana married 1st defendant Jijjuru Gavaramma as his second wife and begot defendants 2 and 3 and treated her as his legally wedded wife. Thus, plaint schedule properties are joint family properties of both the parties. Plaintiffs 1 and 2, after their marriage, settled in Hyderabad and plaintiffs 3 to 5 were living with their respective husbands. The plaint schedule properties were kept joint; as they were being looked after by the father of Jijjuru Bhavannarayana till his death in December, 1983 and 1st defendant is now looking after the affairs of those properties. Both parties have agreed to divide the properties after the death of Jijjuru Bhavannarayana. However, disputes arose with regard to the mode of partition. Hence, the suit. Defendants filed written statement denying the averments made in the plaint in general. It was further asserted that plaintiffs have no right for partition, the Court fee paid is not correct as the plaintiffs are not in joint possession and they never enjoyed the properties and the properties never deemed to be in joint possession. Plaint schedule is not correct, in as much as, item No.1 is only 900 Sq. yards but not 1000 Sq. yards and it belongs to 1st defendant alone and she, along with her husband Bhavannarayana, gifted 300 Sq. yards’ vacant site with a tatched house to 2nd defendant by way of agreement of settlement and 2nd defendant took possession of the same even prior to the date of agreement of settlement and has been in exclusive possession and enjoyment of the same and paying taxes and thus, 2nd defendant is protected under Section 53-A of the Transfer of Property Act. Plaint schedule property is not joint family property but it is self acquired property of 1st defendant and it was assessed to panchayat tax in the name of 1st defendant since several years prior to the death of Jijjuru Bhavannarayana. 1st defendant has been exercising her rights over the property as absolute owner. Item No.4 of plaint schedule property was gifted under registered settlement deed dated 6.10.1967 to 3rd defendant by 1st defendant and her husband Bhavannarayana and since 1967, taxes are being paid in the name of 3rd defendant. However, it is conceded that item No.3 of the plaint schedule is the absolute property of the mother of the plaintiffs, for which they had no claim. It was further averred in the written statement that they have no objection for partition of 600 Sq. yards left in item No.1. Basing on the above pleadings, the trial Court framed the following issues: 1. Whether items 1, 2 and 4 of the plaint schedule are the joint family properties? 2. Whether the plaintiffs are entitled to the shares as prayed for? 3. Whether the suit is not properly valued and Court fee paid is not correct? 4. To what relief? On behalf of plaintiffs, PWs 1 and 2 were examined and Exs.A-1 to A-4 were marked. Whereas, DWs 1 to 4 were examined and Exs.B-1 to B-11 were marked on behalf of defendants. The postal acknowledgment, signed by defendant No.3, was marked as Ex.C-1. On a consideration of both oral and documentary evidence available on record, the Court below held that items 1, 2 and 4 are not joint family properties and the plaintiffs are not entitled to any share in the plaint schedule properties. However, in the facts and circumstances, the Court fee paid was held to be proper and that except item No.3, the other items belong to 1st defendant and item No.3 belongs to the mother of the plaintiffs, namely, Late Annapurnamma. It was further held that in view of prohibition with regard to the transfer of the lands situated in scheduled areas, even if the parties are willing for partition of the remaining 600 Sq. yards in item No.1, it cannot be granted as it amounts to transfer, which is prohibited as per the amendment. Since Item No.3 is the exclusive property of late Annapurnamma i.e. the mother of plaintiffs and by virtue of explanation given in Section 3(4) of Regulation No.2 of 1971 it can be partitioned among plaintiffs themselves, as they got it by virtue of devolution after the demise of the original owner, to the said limited extent, the prayer for partition was granted and the suit was dismissed regarding all other claims made by the plaintiffs. Aggrieved by the said judgment and decree, plaintiff No.1 filed this appeal. Since he died during pendency of the appeal, his legal heirs are brought on record as appellant Nos. 2 and 3, as stated supra. Learned counsel for the appellants strenuously contended that the Court below has erroneously dismissed the suit in respect of item Nos. 1 to 3, which is contrary to law and weight of evidence available on record. The Court below ought to have held that the entire property is joint family property and presumption could have been drawn on the basis of Exs.A-1 to A-3. The documentary evidence of Exs. A-1 to A-4 coupled with the oral evidence of PWs 1 and 2 proved beyond doubt that the plaint schedule property is ancestral property and liable for partition. The evidence of DWs 1 to 4 is inconsistent with each other and does not defeat the rights of appellants for partition and possession of respective shares. Having discarded Exs.B-1 to B-11, how the Court below placed reliance on Exs.B-6 to B-10 is not understandable. Further, the Court below misconstrued the scope and applicability of the provisions of Section 3(1) of the A.P. Scheduled Area Land Transfer Regulation Act and, therefore, the findings recorded by the lower Court are liable to be set aside and the appeal is required to be allowed by decreeing the suit as prayed for. On the contrary, learned counsel for the respondents supported the judgment and decree of the trial Court and submitted that Exs.A-1 to A-3 are nothing but some letters written by defendants, wherein plaintiffs were called for settlement of some dispute in the family. Absolutely they do not refer to any property except Ex.A-3 referring to Item No.2. But, nowhere in those documents it was stated that it was the joint family property and the dispute is as to sharing of the property. So far as item No. 3 of the plaint schedule property is concerned, respondents-defendants have no claim over it and plaintiffs are entitled to share the same among themselves, as per law. The Court below has considered the matter elaborately and has given cogent and convincing reasons in support of the findings arrived at by it. Therefore, the appeal is liable to be dismissed. I have given my earnest consideration to the respective submissions made by the learned counsel on either side and perused the judgment passed by the Court below and the evidence, both oral and documentary, made available on record. Admittedly, plaintiff No.1 – appellant No.1 was 42 years and plaintiff No.2 was 39 years as on the date of Ex.B-1 agreement of settlement executed by late Jijjuru Bhavaranayana in favour of defendant No.2 on 9.5.1993. Exs.B-2 to B-5 would show that buildings were constructed after approval of the Gram Panchayat and house tax was paid under Ex.B-8. Ex.B-11 is the certified copy of settlement deed executed by J. Gavaramma i.e. defendant No.2 in favour of J. Nagadevi – defendant No.3, on 6.10.1967, which shows that the properties in question stood in the name of defendants and the appellants are not entitled to any share in it. As far as the contention of the learned counsel for the appellants that the Court below erred in not taking into consideration the fact that the plaint schedule properties are situated in scheduled area and, therefore, any transfer of the said properties is prohibited under the provisions of the Scheduled Area Land Transfer Regulation Act is concerned, it must be seen that the prohibition imposed under the A.P. Scheduled Areas Land Transfer Regulation Act is with regard to any transfer of immovable property by a tribal in favour of non-tribal and in the case on hand, the transfer of immovable property is between non-tribals and, therefore, the provisions of the said Act are not applicable to the present case. Further, the evidence of DWs 1 to 4 and Exs.B-1 to B- 11 clearly establishes the fact that item Nos. 1, 2 and 4 of the plaint schedule properties were never treated as joint family properties and they were treated as properties belonging to 1st defendant. They were alienated by 1st defendant along with her husband i.e. father of plaintiffs, for which there was no objection from the plaintiffs at any point of time, though it was in their knowledge. Therefore, there is some force in the contention of the learned counsel for the respondents that the suit has been filed by the plaintiffs to have wrongful gain of the said properties, since some improvements have been made by the defendants by constructing certain buildings in the said property. Though PW-1 stated in his evidence that plaint schedule properties were acquired by their father from out of the joint family funds and during his lifetime his father enjoyed them and after his demise, they became entitled to the plaint schedule properties, he admitted in his evidence that there are no documents to show that his father purchased the plaint schedule properties and the properties were treated as joint family properties and as the plaintiffs were away from Rampachodavaram, defendants 1 and 2 were looking after those properties on behalf of joint family. Though reliance has been placed on Exs.A-1 to A-3, as rightly pointed out by the Court below, they are letters written by 2nd defendant, wherein PW-1 was requested to settle property disputes without allowing any third party to interfere. Except that, no evidence was adduced by the appellants to show that the properties were joint family properties. It is also interesting to note that when the properties were mortgaged by the father of plaintiffs, their late mother and 1st defendant jointly, the plaintiffs were majors and they did not join in the mortgage deeds and the mortgagees filed suits against those three executants only and did not implead other members of the family as having rights in the properties. The mother of the plaintiffs died during pendency of those mortgage suits, but they have not been added as legal representatives. Though PW-1 stated in his evidence that he was informed that they were added in those suits as legal representatives of their mother, no such evidence was placed by them before the trial Court. On the other hand, it is the specific case of 1st defendant that the properties are purchased on her own, except item No.3, which was purchased by the mother of the plaintiffs. Added to this, no evidence was adduced by the plaintiffs to the effect that the properties in question were either purchased or stood in the name of their late father Jijjuru Bhavanarayana. As rightly observed by the Court below, PW-1 admitted in cross-examination that he did not join in purchase or mortgage transactions even though he was major by then and that he did not take any objection when there were changes with regard to mutation in the panchayat records and construction of buildings in Item No.1. He did not enjoy plaint schedule properties during lifetime of their father. They have not enjoyed the income from the plaint schedule properties even after the death of their father. They have not managed the properties either during the lifetime of his father or subsequent thereto. Though PW-1 denied execution of Ex.B-1 agreement for gift settlement in favour of 2nd defendant, he has not challenged the signature on Ex.B-1. Having carefully scrutinized the evidence available on record, both oral and documentary, this Court is of the considered view that there is no material in support of the contention of the appellants that the properties in question are joint family properties and they are liable to be partitioned. On the other hand, the evidence available on record clearly establishes that except Item No.3, the other properties mentioned in the plaint schedule exclusively belong to 1st defendant. Exs.B-2 to B-5 further show that in pursuance of agreement to execute gift settlement deed by defendant No.1 and her late husband Bhavanarayana, 2nd defendant had constructed buildings in Ex.B-1 land and PW-1 himself admitted that they have not raised any objection for such construction of buildings. The Court below has elaborately considered the matter in the light of the evidence adduced by both parties and held that items 1, 2 and 4 are not joint family properties and the plaintiffs are not entitled to any share in the plaint schedule properties, except item No.3, which belong to the mother of plaintiffs. The findings arrived at by the Court below are based on sound reasoning and evidence available on record. As such, the judgment and decree passed by the Court below needs no interference by this Court in this appeal under Section 96 of the Code of Civil Procedure. There are no merits in the appeal. It is accordingly dismissed. However, in the facts and circumstances, there shall be no order as to costs. JUSTICE C.V. RAMULU. Date: 7-4-2010. MVB.