HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA SECOND APPEAL No. 912 OF 2011 DATED 21ST SEPTEMBER, 2011 BETWEEN Chilakapati Ratna Kumari and anr …….Appellants and Matte Subhash Bose and ors ……Respondents HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA SECOND APPEAL No. 912 OF 2011 JUDGMENT: The appellants herein are defendants 5 and 8 in the suit in O.S.No. 518 of 2003 filed by respondents 1 to 3 herein on the file of the learned Principal Junior Civil Judge, Narsapur, West Godavari District. Respondents 1 to 3 herein, who are the plaintiffs, filed the aforesaid suit for partition of plaint schedule property into four equal shares and for allotment of one such share to the plaintiffs by ejecting the defendants. For the sake of convenience, the parties herein are referred to as arrayed before the trial Court. Before the lower Court, to prove their respective claims first plaintiff was examined as P.W.1 and got marked Exs. A1 to 5. On behalf of the defendants, D.Ws. 1 to 4 were examined and Exs.B.1 and B2 were got marked. Apart from the same, by consent of the parties, the Court marked Exs.C1 to C7 and Exs. X1 to X6 were marked through witnesses. The trial Court, upon consideration of the evidence available on record, dismissed the suit on the sole ground that the plaintiffs were never in possession of the suit property and only the fifth defendant and her father, Narasimham are in exclusive possession of the suit property. Aggrieved by the same, the plaintiffs carried the matter in appeal in AS.No.10 of 2005 before the Court of the learned VI Additional District Judge (Fast Track Court), Narsapur. The lower appellate Court upon reappraisal of the evidence on record, allowed the appeal, and decreed the suit as prayed for, setting aside the decree and judgment dated 13.12.2004 passed in OS.No. 518 of 2003 on the file of the Principal Junior Civil Judge, Narsapur. Hence the second appeal by the Defendants 5 and 8. The learned Counsel for the appellants/defendants sought to raise substantial questions of law, whether or not, having believed the Ex.X.1 letter dated 29.9.2004 written by the Assistant Social Welfare Officer, Narsapur to Deputy Director, Social Welfare, Eluru, establishing that Matte Narasimham, father of the fifth defendant leased out the tiled house of the scheduled property to the Social Welfare Department in the year 1973 it would tantamount to non-consideration of the crucial evidence; whether the finding of the lower appellate Court that the suit schedule property is the joint family property of Narasimham and his three brothers and whether the same is sustainable in view of the finding of the lower appellate Court that the plaintiffs are residing at Sambhunipeta, Palkol and the defendants are residing at Yellavani Garuvu where the plaint schedule property is situated; whether the defendants could prove the complete ouster of the plaintiffs which disentitle the plaintiffs to claim the property; and when the admission of one of the plaintiffs that the plaintiffs and defendants 1 to 4 and 6 are never in possession of the suit property at any time, the plaintiffs are neither jointly nor completely in possession of the suit property. Heard both sides. Perused the case file thoroughly. Before adverting to the contentions of the learned Counsel on either side, be it noted that the scope of this Court under Sec. 100 C.P.C. is quite narrow. Therefore, within the ambit of the appellate jurisdiction of this court under Sec. 100 CPC, it is to be seen that as to whether any substantial questions of law raised by the learned Counsel for the appellant in the Memorandum of Grounds need consideration and warrant any interference by this Court in this second appeal. Time and again, the Supreme Court held that this Court is entitled to exercise its power under Section 100 CPC only when a substantial question of law arises in a second appeal for adjudication but not otherwise Keeping in mind the law laid down by the Supreme C o u r t Panchugopal Barua v. Umesh Chandra Goswami (1997) 4 SCC 713 and Vijay Kumar Talwar Vs. Commissioner of Income Tax, Delhi, (2011) 1 SCC 673, I shall now proceed to examine the pleadings and evidence adduced by both the parties as well as the Judgments and Decrees of the Courts below so as to see whether the findings recorded by them are justified in law and on fact. M/s. Matte Venkanna (father of defendants 3 and 4 and one late Matte Surya Rao) Matte Veera Swamy (father of the plaintiffs), Matta Narasimham ( father of defendant 5 and father-in-law of defendant 8 ) and Matte Chitti Venkanna (husband and son of Defendants 6 and 7 respectively) are the sons of late Matte Tatayya. Defendants 1 and 2 are the wife and son of the late Matte Suraya Rao. Their inter se relationship is not in dispute. It is the specific case of the plaintiffs that the plaint schedule property which is an extent of 0.14 cents covered by R.S.No.169/3 of Yellavani Garuvu, Palakol Rural is the joint family property of their father Veeraswamy and his three brothers and they all jointly purchased the said property through registered sale deed dated 23.11.1943 (Ex.A.1). However, it is the case of the defendants that the plaint schedule property is the absolute property of Metta Narasimham and that he constructed a tiled house in the year 1971 in the schedule property and leased out the same to the Social Welfare Department and that the plaintiffs were never in possession of the schedule property. Ex.A.1 registration of sale deed dated 23.11.1943 establishes that the schedule property is the joint family property of the said Matte Venkanna, Matte Veera Swamy, Matte Narasimham and Matte Chitti Venkanna. Ex.A.1 document also established that the father of the plaintiffs had 1/4th share in the plaint schedule property. The material on record would disclose that though the defendants are relying upon Ex.B.1 Will executed by Metta Narasimham in favour of Defendant 5 and correction deed (Ex.B.2) executed by defendant 5 in favour of Defendant 8, there is no pleading or evidence as to how Metta Narasimham got the plaint schedule property exclusively. Further in the evidence of defendant 8, who is the husband of Defendant 5 admitted that there is no mention of R.S.No. 169/3 in Ex.B.1 will executed by Narasimham and the said Will is silent about the property covered by R.S.No. 169/3. He further admitted that his father–in-law, Narasimham, and his three brothers had purchased the plaint schedule property as per the contents of Ex.A.1. In as much as Exs.B1 and B2 do not relate to the schedule property, the same can be safely ignored and in fact both Courts below rightly did so. As such, it is evident that the plea that Narasimham acquired the title over the entire suit schedule property by way of adverse possession is not correct nor the plaintiffs extinguished by way of ouster. It is also on record that the said Narasimham leased out the property to the Social Welfare Department under Ex.X.1 and enjoyed the property and rents. It is not sufficient enough to show that one of them is in sole possession and enjoyment of the profits of the properties. The possession of one co-sharer presumed to be on behalf of all the co-owners. Because of this presumption , the law requires to constitute ouster, proof of some thing more than mere exclusive possession and exclusive receipt of income apart from that specific pleading of ouster.Since it was established that the suit property was jointly family property of Narasimham and his brothers, even if Narasimham was inpossession of the property since long time, presumption under law is that other co- owners are in constructive possession in the absence of specific plea of ouster along with exclusive possession. From the above, it can safely be said that the suit schedule property is the joint family property of Metta Venkanna, Narsimham, Veera Swamy, and Chitti Venkanna. Further, once the suit schedule property is the joint family property of Narsimham and his three brothers, and even if it is accepted that Narasimham executed Ex.B.1 Will and Defendant 5 executed registered settlement deed in favour of her husband Defendant 8, both Exs.B.1 and B.2 are invalid in as much as the entire property covered by Ex.B.1 is the joint family property and Narasimham has no right to bequeath the entire property. Further it was established that there is no mention about the Survey number (RS 169/3) in Exs.B.1 and B2 and in those circumstances, both the Courts below concurrently held that they were in no way relatable to the schedule property and they can safely be discarded to examine validity or otherwise of the said documents. As such, Exs.B.1 and B.2 are not binding on the plaintiffs. As regards the contention of the learned Counsel for the appellants that there is categorical admission of PW.1 that he along with other plaintiffs and defendants 1 to 4, 6 and 7 were never in possession of the plaint schedule property at any time and as such they are completely out of possession and not in joint possession of the schedule property, it is to be seen that, it is established on record that even though the name of Narasimham is shown as owner of the suit property in the Panchayat records as well as Social Welfare Department records, the fact remains that he is only a co-sharer and as such, rights of the other co-shares cannot be said to be extinguished unless there is a registered document in regard thereto or by way of ouster and in the absence thereof, the defendants by virtue of possession cannot claim absolute rights over the plaint schedule property. When it was established by adducing proper evidence that the suit property is the joint family property of Narasimham and his brothers, the possession of one co-sharer is legitimately presumed to be on behalf of all the co-owners. It is well settled that if one sharer is in possession of the property and other sharers are out of possession, the law presumes that all the co-sharers are in joint and constructive possession of the suit property in the absence of ouster and exclusive title over the suit property. For the foregoing discussion, I have no hesitation to hold that the suit property is the joint family property of Metta Vankanna, MettaVeeraswamy, Metta Narasimham, and Metta Chitti Venkanna and as such the plaintiffs are entitled to the relief as prayed for. From the above facts and circumstances of the case, it is clear that the lower appellate Court on re- appreciation of the evidence placed on record rightly set aside the Judgment and decree passed by the trial Court. Having examined the matter on the touchstone of the principles laid down by the Supreme Court, the lower appellate Court rightly arrived at the findings based on the evidence available before it. In the process, the lower appellate Court scrupulously followed the legal principles in sifting the evidence and considering the same. I therefore do not find any valid ground to interfere with the well reasoned Judgment and Decree of the lower appellate Court. Viewed from any angle, I do not see any question of law, much less a substantial question of law that arises for consideration in the Second Appeal warranting interference by this court in exercise of its jurisdiction under Section 100 CPC. The Second Appeal is accordingly dismissed at the admission stage confirming the judgment and decree dated 27.12.2010 passed by the learned VI Additional District Judge, Narsapur in A.S.No. 10 of 2005. There shall be no order as to costs. -------------------------------------------- JUSTICE ASHUTOSH MOHUNTA Dated 21ST SEPTEMBER, 2011 Msnro