HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR Dated 16th July, 2010 APPEAL SUIT No.3452 of 2003 Between: Chikkala Rama Mohana Rao. …Petitioner. And: Chikkala Prabhakara Rao and others. …Respondents. HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR APPEAL SUIT No.3452 of 2003 JUDGMENT: This appeal is filed by the plaintiff and arises out of a suit for partition filed by the plaintiff. In the said suit, plaintiff sought for partition and for separate possession of Plaint A, B, C and D schedule properties but the suit was dismissed directing the plaintiff to file further comprehensive suit and aggrieved thereby, this appeal is filed by the plaintiff. 2. For the sake of convenience, parties are being referred to as they are arrayed in the suit. 3. One Ramaswamy was the original ancestor, who had four sons, namely, Rama Rao, Dorayya, Suryarao and Venkat Rao. Ramarao aforesaid had four sons and a daughter namely, Ram Mohan Rao-plaintiff, Prabhakararao-D.1, (died per L.Rs. Respondents 32 to 36), Muralidhar Rao-D.2, Chalapati Rao-D3, Satya Harinath Rao-D4, (died per L.Rs.15 to 18) and Madiga Atchuta Lakshmi-D.5 (died per L.Rs. Respondents 27 to 31.) 4. Briefly stated, Ramarao and his sons are alleged to have partitioned the property of Ramarao into equal shares and while the sons were given shares, Ramarao retained one share for himself. Later, Ramarao died intestate on 2-6-1974 leaving behind him the plaintiff and his legal heirs. The present suit, therefore, is filed seeking partition of plaint A, B and C schedule properties which are said to have fallen to the share of Mr.Ramarao in the partition as aforesaid. In addition, Plaint D schedule property is an ancestral house regarding which also relief of partition is sought for. Thus, for plaint A, B and C schedule properties, the plaintiff claims 1/6th share whereas for plaint D schedule ancestral property, he claims 7/114th share. 5. According to the averments, late Ramarao and all his sons which include the plaintiff and the defendants partitioned all their properties in 1972 except plaint D schedule house and prepared a partition list thereof which is filed and marked as Exs.A.26. According to the plaintiff, in the said oral partition, one share each was allotted to the plaintiff and defendants 1 to 4 and one share was allotted to the father late Ramarao. It is alleged that during his life time, Ramarao had directed that item 3 of Plaint A schedule property be given to 5th defendant, his daughter and item 4 of plaint A schedule which is Ac.2.00 of mango garden be given to the plaintiff being the eldest son and after him, the rest of plaint A schedule property and B and C schedule property as well as his undivided share in plaint D schedule property be divided among the plaintiff and defendants 1 to 5 equally. The plaintiff, therefore, alleges that for giving effect to the aforesaid wishes of father, after his death, plaint A, B and C schedule properties were given in possession of the 1st defendant to enable him to cultivate plaint A schedule lands and after deducting the cultivation expenses, the shares would get respective income. 1st defendant was also to discharge the liabilities of father and maintain accounts. It is alleged that later defendant No.1 avoided and refused to give the accounts which ultimately lead to the plaintiff to issue Ex.A.1 suit notice dated 10- 5-1982. The said notice was addressed to the defendants 1 and 2 who apart from the relationship as brothers are also co-brothers. The said notice was replied to only by D.1 under his reply Ex.A.2 dated 3-6-1982. The plaintiff further replied thereto under Ex.A.3 on 16-7-1982 and had to file the present suit as the defendants 1 and 2 did not accept the plaintiff’s claim. The present suit for partition was filed by the plaintiff on 22-4- 1983. 6. The said suit was resisted by the 1st defendant by filing the Written Statement contending inter alia that sister of late Ramarao, Smt. Venkata Narasayamma who was a widow at young age was staying with Ramarao and late Ramarao was managing her properties also. It is alleged that she fostered 2nd defendant and executed a registered settlement deed dated 20-3-1959 (marked as Ex.B.16) in favour of the 2nd defendant settling all her properties on him. Later in 1972 when late Ramarao brought about partition of landed property i.e., A schedule properties, the properties settled by the said aunt on D.2 was also included in the said partition list. It is alleged that while D.2 was unaware of such inclusion of his properties in the list of partition, the plaintiff himself being a law graduate drafted the partition list and gave six copies to each sharer to sign the same. It is alleged that the 2nd defendant later found out the injustice meted to him and raised a dispute and threatened to go to the Courts of law. Late Ramarao, therefore, settled the said controversy and by consent of all his sons arrived at a family settlement whereunder, he agreed to allot to defendant No.2 his entire share as per the aforesaid partition list after the life time of late Ramarao. It is therefore, specifically alleged that as per this family settlement, the 2nd defendant took over the entire share of his father after his death and has been enjoying the same as true owner exclusively including payment of land revenue and while plaintiff and all other brothers are aware of the same, none of them have asserted to claim share in the said property of D.2. The defendant No.1 also disputed that plaint ‘C’ schedule property also fell to the share of late Ramarao and resisted all the plaint allegations. Regarding entrustment of Ramarao share’s of properties to D.1 was denied and it was denied that he has to give any account or that he is cultivating the lands and that he is not in possession of any gold jewellery belong to late Ramarao. It was also denied that plaint D schedule house is fallen for partition contending that the said house was already divided and plaintiff as well as D.6 to D.14 are in a separate possession and enjoyment of respective share in the plaint D schedule house. It is alleged that it is an old house and D.1 has attended to repairs and provided amenities at his expenses and none of the brothers have reimbursed him. He therefore, alleges that defendant No.2 is in exclusive possession and enjoyment of item Nos.1 and 2 of the plaint schedule whereas item No.3 of plaint schedule belongs to Defendant No.1 even as per the partition list and none of the other brothers have any share in the said properties. It is also alleged that the plaintiff is not entitled to any share in any of the properties. 7. Defendant No.2 filed a separate written statement contending that the plaintiff is intelligent and well versed in litigation. Being a law graduate, he prepared misleading documents for the purpose of filing before Land Ceiling Authorities and believing the said representation, he got all the brothers and late Ramarao sign the document prepared as partition list. He also alleges that the properties settled on him by the aunt under Ex.B.16 and another property specifically purchased by her in his name under Ex.B.17 sale deed dated 8-7-1959 which is shown as item Nos.2 and 4 of the plaint schedule were shown in partition list. The defendant No.2 therefore, alleges that in view of the injustice caused to him in preparation of the partition list, the plaintiff as well as all other brothers agreed to that the entire share of Ramarao in the said partition list shall be taken over by D.2 after Ramarao’s life time and enjoy the same with full rights. D.2 therefore, alleges that the said family arrangement is valid and binding on the plaintiff as well as D.1,3 and 4 and all of them are estopped from the disputing the family settlement and cannot claim 1/6th share as alleged. With regard to plaint D Schedule property also, the plaint allegations are denied and it is stated that each one of the sharer is in possession of respective portions and the plaintiff has no right to claim any share. 8. The suit notice dated 10-5-1982 demanding his share as claimed in the suit was issued on behalf of the plaintiff, D.3, D.4 and D.5 to D.1 and D.2. However, the defendants 3, 4 and 5 did not join in the suit along with the plaintiff and did not file any written statement also and did not participate in the suit by remaining exparte. The contest, therefore, is confined to plaintiff and defendants 1 and 2 and both the defendants 1 and 2 are supported each other and claimed that the plaintiff is not entitled to any relief. 9. In the suit, the trial Court framed the following issues. 1. Whether the plaintiff obtained partitioned lists by coercion and misrepresentation? 2. Whether the family settlement pleaded by the defendants is true, valid and binding on the plaintiff? 3. Whether the plaintiff is not entitled to partition of the plaint A, B, C and D schedule properties? 4. Whether the plaintiff is not entitled to any share in the plaint schedule properties due to his ouster from enjoyment? 5. Whether the 1st defendant is entitled to render amounts? 6. Whether the plaintiff is entitled to future profits? 7. To what relief? 10. Before the trial Court, the plaintiff examined himself as P.W.1 and two other witnesses as P.Ws.2 and 3 and marked Exs.A.1 to A.26. On defendants’ side, defendants examined D.Ws.1 to 16 and marked Ex.B.1 to B.35. D.W.16 is a witness who speaks of family settlement as alleged by D.2. 11. The Court below on consideration of the oral and documentary evidence gave various findings which are briefly mentioned below. 1) That there was no partition of family properties as between the parties by metes and bounds and merely by convenience, the parties are enjoying certain properties in their own rights. 2) Ex.A.26 partition list relates only to the landed property and does not cover house site and other movable properties and that the said Ex.A.26 document is brought into existence for the purpose of Land Ceiling proceedings. 3) There is no evidence to show that C schedule properties were given in custody of D.1. 4) There is variance in the evidence of P.Ws.1 to 3 and even Ex.A.18 the order of Land Reforms Tribunal also rejected Ex.A.26 partition list and in the absence of any evidence on the part of the plaintiff that he paid land revenue with respect to land falling to his share under Ex.A.26, the tribunal came to the conclusion that Ex.A.26 partition list is brought into existence by misrepresenting D.2 and is not valid. 5) The plaintiff failed to prove that plaint A, B and C schedule properties fell to the share of his father as Ex.A.26 shows that unfair distribution in the division of properties was derived by other brothers at the expenses of D.2. 6) The family settlement pleaded by D.2 is not proved to the hilt. 12. Thus, issues 1 to 3 were decided against the plaintiff. On issue No.4 it was held that the plaintiff right to share in the property is not ousted. On issue Nos.5 and 6, it was held that issue No.1 is not liable to render account nor the plaintiff is entitled to claim the future profits for A, B and C schedule properties, in view of the evidence that D.2 is in possession and enjoyment of Plaint A schedule land. Issue No.7 was accordingly decided against the plaintiff and in conclusion it was found that the plaintiff, defendants 1 ,3 and 5 and their vendors were not divided by metes and bounds, and as such the plaintiff ought to have filed a comprehensive suit for division of entire properties for metes and bounds and as such, not entitled to claim any share in plaint A, B, C and D schedule properties. 13. Mr. S.Balchand, learned counsel for the appellant contended that the very approach of the Court below is totally erroneous and inconsistent and contradictory findings are recorded by the trial Court. He contended that when Ex.A.26 partition list which is disbelieved by the trial Court; was in fact accepted by the defendants 1 and 2 inasmuch as they claim a further family settlement arising out of the alleged injustice caused to D.2 under Ex.A.26. Learned counsel, therefore, submits that A.26 having been accepted by the defendants, the trial Court committed serious error in rejecting the same. The trial Court also committed error in rejecting Ex.A.26 on the basis of it’s rejection by Land Ceiling authorities under Ex.A.18. He further submits that all the defendants accepted signing of Ex.A.26 partition list and to the extent of family settlement pleaded by them, there is no evidence on their part. He submits that so far as Ex.B.16 sale deed is concerned, though the said property is in the name of D.2, there is no evidence that the paternal aunt has purchased the said property in his name. He therefore, contends that in whatever names, the property stands among the family members, they are liable for partition when the said partition list Ex.A.26 is acted upon. The learned counsel points out inconsistencies of the evidence of D.1 and D.2 and submitted that on account of further relationship among them as co-brothers, they are both trying to support each other to deprive the plaintiff as well as the other brothers, of the share in the properties of the father. The learned counsel has brought the relevant portion of the evidence both oral and documentary to the notice of the court and submitted that the defendant No.2 never replied to the suit notice issued by the plaintiff and has failed to produce any evidence in support of the family settlement pleaded by him. The Court below also has recorded that D.2 failed to establish the said family settlement to the hilt and consequently, submits that in the teeth of the findings of even the Land Ceiling Authority, there is no partition by metes and bounds, there is no reason why the present suit is dismissed. 14. Mr. N.Jai Surya, the learned counsel appearing for the defendant No.1 as well as Mr. G.Vivekannanda learned counsel appearing for the 2nd defendant have also made detailed and elaborate submissions with reference to the pleadings and oral and documentary evidence. 15. Mr. Jai Surya contended that the primary burden being that of the plaintiff, he has failed to substantiate his basic case arising out of Ex.A.26 partition list. It is submitted that Ex.A.26 admittedly does not relate to B and C schedule properties. So far as the D schedule properties are concerned, the portion of the evidence of plaintiff as P.W.1 is relied upon wherein he admits that he is in possession of two rooms which he has kept in lock and key and other sharers are in possession of different portion of D schedule. Learned counsel therefore, submits that there is no evidence that D schedule property is not divided and there is contra evidence that each sharer is in possession of the separate portions. He submits that even according to P.W.1, item No.2 of the plaint A schedule property is recorded in the name of D.2 and there is no evidence of any entrustment of C schedule property to D.1. He submits that item No.3 of Plaint A schedule property is exclusive property of D.1 and it is not even covered under Ex.A.26. He further relied upon Ex.A.24 a document of gift executed on 23-4-1970 in favour of sister of the parties which refers to earlier partition between the family. The said partition recorded in Ex.A.24 is inconsistent with the plaintiffs claim that prior to Ex.A.26, there was partition in 1972. He further submits that the plaintiff has approached the Court by suppressing the facts and making false statements and the Land Ceiling Declarations filed by the plaintiff on his behalf as well as on behalf of the other sharers does not support his claim of distribution of properties among all the sharers under Ex.A.26 partition list. Learned counsel has relied upon a decision of this Court reported in SUNDARAGIRI RAMULU V. SUNDARAGIRI SIDDI RAJAIAH @ SIDDI RAJU ([1]) for the proposition that “in a suit for partition, the burden clearly rests upon the plaintiff not only to prove that the scheduled property is liable for partition but also to establish his entitlement to his share. The denial by the defendant, in such a suit, of any plea raised by the plaintiff, would only lead to a necessity, to undertake trial. The mere fact that the defendant had pleaded prior partition of the properties, does not alter the sequence, provided for, under Order 18 C.P.C.” 16. Learned counsel for the defendant No.2 has contended that the comparison of partition list in Ex.B.16 would show that D.2 though he shown to have got about Ac.49-00 cents of land, Ac.10-00 cents of land described as Chetibeedu is a Government land which was ultimately taken over by the Government. Further, items 1 to 6 in the said list described as ‘F’ schedule covers the lands settled on D.2 by his aunt and item Nos. 7 and 8 of ‘F’ schedule hardy account for about Ac.14.00 cents which alone is what is allotted to him. Learned counsel, therefore, points out that clear and apparent injustice is caused to Defendant No.2 in the said partition list under Ex.A.26 and submitted that it is highly inequitable and clear injustice was caused to D.2 as in effect he hardly got any property in the partition and what already belonged to him stood allotted to him again. Learned counsel has also submitted that Exs.B.16 and B.17 i.e., settlement deed and sale deed by aunt, are individual properties of D.2 and it is for this reason there was a family settlement whereunder late Ramarao agreed to give his entire share to D.2 after his life time. Learned counsel, therefore, says that the plaintiff has no right to seek partition of the said further share of properties in the present suit as D.2 is exclusively enjoying the same. Learned counsel relied upon the evidence of D.16 supported by D.1 and D.2 as D.W.15 and D.W.1 respectively and submitted that the family settlement was fully established by D.2. Learned counsel relied upon a decision reported in KUNHAPPA NAIR AND ANOTHER v. SURESH KUMAR AND ANOTHER ([2]) to contend that general principles of resjudicata are applicable to quasi judicial tribunal like Land Reforms Tribunal and contends that the rejection of Ex.A.26 partition list by the Land Reforms Tribunal under Ex.B.18 clearly shows that Ex.A.26 is liable to be rejected and was rightly rejected by the trial court. He has also placed reliance upon another decision reported in RAM SARUP v. RAM CHANDER AND ANOTHER ([3]) for the proposition that principles of resjudicata and constructive resjudicata are applicable to the said decision of Land Ceiling Tribunal. A decision of the Supreme Court reported in COMMISSIONER OF ENDOWMENTS AND OTHERS V. VITAL RAO AND OTHES ([4]) is cited for the proposition that the issue relating to the past partition being common before Land Ceiling authorities as well as in the present suit, the finding of the Land Reforms Tribunal is binding on the plaintiff. The learned counsel, therefore, submits that the plaintiff is not certain as what the partition contemplates and in the absence of evidence, he is not entitled for any relief and the suit which was rightly dismissed by the Court below and deserves no interference by this Court. 17. In the light of these contentions, the points that arise for consideration are as follows: 1. Whether the finding of the trial Court in rejecting Ex.A.26 partition list is sustainable? 2. Whether the further finding of the Court below rejecting the family settlement pleaded by D.2 is correct? 3. Whether the finding of the Court below that D.1 and 2 are not accountable is correct and sustainable and if so, whether the plaintiff is entitled to any relief? 18. So far as Point No.1 is concerned, specific pleading of the plaintiff in that respect is in para III - D of the plaint which reads as follows: “While matter stood thus, late Ramarao and his sons i.e., the plaintiff and D.1 to D.4 partitioned their properties into six shares in the year 1972 keeping the D- schedule house joint with other co-owners. In the said partition the plaintiff was allotted to one share and the D.1 to D.4 and late Ramarao are allotted to one share each. Later on, late Ramarao and his sons i.e., the plaintiff and D.1 to 4 executed partition lists among themselves. During the said partition, plaint A, B and C schedule properties fell to the share of late Ramarao. Ever since the said partition the share holders started enjoying their respective shares separately and their undivided interest in D-schedule properties jointly with other co-sharers.” 19. Paragraphs 5 and 6 of the Written Statement of D.1 with respect to the aforesaid allegation of the plaintiff are as follows: “Due to impending land legislations and the other state polices, late Ramarao with the advise of the plaintiff who is educated, thought of dividing the family properties and in the year 1972 late Ramararao and his eldest son the plaintiff brought about a division of the landed properties of the family and in so doing late Ramarao and plaintiff included the properties given to the 2nd defendant under the registered settlement deed dated 20-3-1959. The 2nd defendant then was not aware of this fact of inclusion of the said settlement deed lands in the properties that were partitioned in the year 1972. At the time of partition itself, the plaintiff got the partition lists drafted and written up and got made six copies therefor and all the sharers were made to sign in all the copies.” “Subsequently, 2nd defendant found out the injustice done to him and raised a dispute and even stated that he would go out of the house and seek redress in a court of law for re-opening the partition. Then late Ramarao (the father of plaintiff and defendants 1 o 5) got annoyed and perturbed and thought of settling the matter of keep up the prestige of the family and to prevent 2nd defendant to go to a Court of law. The said Ramarao discussed the matter with his other sons and family late Ramarao and his sons arrived at a family Settlement whereby it was settled that in addition to the share allotted to the 2nd defendant as per the partition lists the share allotted to Ramarao was to be completely taken by the second defendant after the father’s life time and that he should enjoy the same with full rights. As per this family settlement, 2nd defendant took over the entire share of his father after his death and has been enjoying the said 1/6th share of the father after his death and has been enjoying the said 1/6th share of the father with full rights exclusively. The 2nd defendant has been in enjoyment of the share of properties that fell to his share as per partition lists even during the life time of his father and also subsequently. The conduct of the plaintiff and other shares are estopped by their conduct and long silence to claim any share in the 1/6th share of properties taken by the 2nd defendant. The 2nd defendant has been paying land revenue on the 1/6th of lands that devolved on him after the death of his father to the knowledge of all his brothers and sisters. So the 2nd defendant alone is entitled to the entire 1/6th share of his father. The plaintiff and D-1, D.3 to D.5 have no right to claim any share in the