THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO A.S.NO.118 OF 1992 Dated. 25 -11-2010 Between: B.Venkatesham and another …Appellants Vs. Thota Susheela wife of Pichaiah ..Respondent THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO A.S.NO.118 OF 1992 JUDGMENT The defendants in O.S.No.93 of 1987 on the file of the Court of Subordinate Judge, Nalgonda are the appellants herein. The suit was filed for partition of the plaint schedule properties into three (3) equal shares and according to the claim of the plaintiff, the 2nd defendant is the mother of the plaintiff and 1st defendant. One Late Bandaru Jogaiah was the father of the plaintiff and 1st defendant and he died intestate owning the schedule properties and when the plaintiff has demanded for partition of the schedule properties, the defendants did not cooperate and hence the suit. The defendants filed a written statement contending that 1st defendant is the owner and possessor of the properties in plaint “A” schedule except item No.6. The property in item No.6 is the exclusive property of the wife of the 1st defendant which was purchased during the year 1974. Therefore, the properties are not liable for partition. So far as the “B” schedule properties are concerned, it was claim that they are exclusive properties of the defendants. On the basis of the above pleadings, the following issues were framed by the trial court and subsequently they were re-casted:- 1. Whether the 1st defendant is exclusive owner of the Schedule properties other than the item No.6? 2. Whether Sarojamma, wife of the first defendant is the exclusive owner of item No.6 of A Schedule? 3. Whether the suit properties were owned and possessed by late Jogaiah? 4. Whether the plaintiff is entitled to the share in the suit properties and if so, to what share in what properties? 5. To what relief? On behalf of the plaintiff, PWs.1 to 3 were examined and no documents were marked and on behalf of the defendants no oral or documentary evidence is adduced. After considering the evidence on record, the lower court decreed the suit of the plaintiff and aggrieved by the said judgment and decree, the present appeal is filed. The points that arise for consideration are:- (1) Whether the suit properties are the family properties of plaintiff and defendants and liable for partition? (2) Whether item No.6 is the exclusive property of the wife of the 1st defendant? (3) Whether the plaintiff is entitled for partition as pleaded and granted? (4) Whether the judgment and decree passed by the learned Subordinate Judge, Nalgonda is legal and sustainable? (5) To what relief? POINTS:- The fact that the plaintiff and defendants are the legal heirs of one Bandaru Jogaiah is not disputed. Apart from the evidence of PW.1, though she may be stated as interested in her claim the evidence of PW.2 shows that the properties belong to Jogaiah and this witness is old aged about 80 years. PW.3 is none other than the husband of PW.1. The fact that the family of Jogaiah which includes the plaintiff and defendants has agricultural properties is not in dispute. It is for the 1st defendant to prove that all the “A” schedule properties belong to him. He could have got the title to those properties by purchase by him as self acquisition. If it is not so, the presumption is that having been in possession of the property and living with the father, they are the family properties. It is true that the plaintiff has not filed any documents about the factum of the properties are owned by Jogaiah but at the same time when defendants claim that 1st defendant was in possession and enjoyment of the property, the existence of the properties with the family is established. If the defendants ought to succeed, then it is for them to show that the properties are the exclusive properties of the 1st defendant or the wife of the 1st defendant. 1st defendant is the male member of the family. They have also not adduced any evidence nor produced any documents. In the cross-examination of PW.1 also no material could be shown as to how the claim is false. The fact that the 1st and 2nd defendants have not gone into the box clearly shows that their plea is not true and acceptable. The lower court has rightly rejected the claim. The counsel for the appellant pleaded that the matter may be remanded to the court below while giving an opportunity to the defendants to adduce evidence about the contentions. The matter is already 21 years old and at this stage any request for evidence cannot be encouraged as no additional evidence is also before the court and therefore the request is rejected. Therefore, the appeal suit is liable to be dismissed and points are accordingly answered. Accordingly, the Appeal Suit is dismissed. In the circumstances, there shall be no order as to costs. _______________________ N.R.L.NAGESWARA RAO,J 25-11-2010 TSNR