HONOURABLE SRI JUSTICE L. NARASIMHA REDDY SECOND APPEAL No.923 OF 2010 JUDGMENT: Respondents 1 to 4 filed O.S. No.1658 of 1999 in the Court of the Principal Junior Civil Judge, Guntur, for partition and separate possession of the plaint schedule property, a building constructed over an extent of 175 square yards in Guntur town. It was pleaded that one T. Venkatarayudu had 7 sons out of whom, two died at an younger age and remaining 5 have partitioned their joint family properties, several decades ago during their life time. The suit schedule property is said to have been kept out side the purview of partition, so that it can be partitioned later. The respondents 1 to 4 and 11 represented one of the five branches. They pleaded that taking advantage of their absence from Guntur, the appellant, who figured as 1st defendant, constructed a building. It was further pleaded that out of the suit schedule property, an extent of 40 square yards is in possession and enjoyment of the father of respondents 5 to 9, and the same is liable to be partitioned. 2. The suit was contested only by the appellant herein. She pleaded that one Smt. Venkata Subbamma, wife of Jagannadham, one of the five sons of Venkatarayudu, executed a settlement deed in her favour on 17-04-1989 and that she is enjoying the suit property. It is stated that though she lost possession of 40 square yards, i.e., B - schedule herein, she has constructed a building in the remaining property and that the appellants 1 to 4 and the other defendants do not have right or share in the property. 3. The trial Court passed a preliminary decree on 12-11-2003. The appellant filed A.S.No.297 of 2008 in the Court of the District Judge, Guntur. The appeal was dismissed on 13-04-2010. Hence, this Second Appeal. 4. Sri C.S.K.V. Ramana Murthy, learned counsel for the appellant submits that the trial Court and the lower appellate Court proceeded on the assumption that the settlement deed, marked as Ex.A-5, is in relation to a combined item of property, whereas the fact of the matter is that it dealt with two separate bits, viz., 125 square yards on the one hand and 40 square yards on the other. He submits that though the appellant was not successful in the proceedings instituted by her for recovery of possession of 40 square yards, her title vis-à-vis the remaining, is still intact. He further submits that the trial Court and the lower appellate Court failed to take into account the principle that once the prior partition is proved, it should be taken to be comprehensive and complete unless the otherwise is proved. 5. Sri M. Janardhana Rao, learned counsel for the contesting respondents, on the other hand, submits that the sole basis for the claim of the appellant is Ex.A-5 and that in A.S. No.124 of, 1980 which arose out of O.S. No.164 of 1975 filed by the appellant herein, the validity of Ex.A-5 herein was considered and it was held that the executent thereof, did not have the right or power to execute the document. He further submits that the appellant is neither co-owner nor coparcener and that she has to file a separate suit for declaration of her rights vis-à-vis the suit schedule property. 6. In the suit filed for partition and separate possession of the suit schedule property, the Trial Court framed the following issues for its consideration: “1. Whether the plaintiffs are entitled for partition of the suit schedule property into 20 equal shares and for possession of one such share to the plaintiffs as prayed for? 2. Whether the plaintiffs are entitled to recover the future mesne profits as prayed for? Additional issues: 1. Whether the first defendant has perfected her title to items 1 and 2 of the schedule property by adverse possession?” 7. On behalf of the respondents 1 to 4, PW-1 was examined and Exs.A-1 to A-5 were filed. Out of these documents Ex.A-1 is the genology of the family of late Thulluru Venkatarayudu, Ex.A-2 is the judgment and decree in O.S. No.165 of 75, Ex.A-3 is the judgment in AS No.124 of 1980, Ex.A-4 is the judgment of this Court in S.A. No.194 of 1984 and Ex.A-5 is the deed of settlement relied upon by the respondents. No oral or documentary evidence was adduced by the appellant. A preliminary decree was passed by the trial Court and in the appeal preferred by the appellant herein, the lower appellate Court framed the following points for its consideration. “1. Whether the judgments under Exs.A-2 to A-4 are not binding on the appellant (D1), if not, original of Ex.A-5 is valid and binding on the respondents? 2. Whether the schedule property is joint family property of the appellant and respondents, if so, are they entitled for partition of schedule property into 20 equal shares and for allotment of 5 shares to respondents 1 to 4? 3. Whether the appellant (D1) is in exclusive possession of schedule property ousting other joint family members claiming hostile title over the schedule property for a period of 12 years, if so, is she perfected her title by adverse possession?” and the appeal was dismissed. 8. The appellant is outside the family tree presented through Ex.A-1. None of the members of the family have disputed the assertion of respondents 1 to 4 that in the family partition, that took place among the sons of Venkatarayudu, the suit schedule property was kept aside. There was the unanimity among the members of the family as to the nature of the property and its divisibility. The appellant alone contested the suit stating that Ex.A-5 was executed in her favour by the widow of Jagannadham, one of the sons of Venkatarayudu. If the property has fallen to the share of Jagannadham and it was conveyed to the appellant through a deed of settlement, she could have certainly resisted the suit for partition filed by the respondents. 9. Under Ex.A-5, Venkatasubbamma settled an extent of 175 square yards and some other properties. Complaining that one Mr.T. Nagabushanam had dispossessed her from an extent of 40 square yards, the appellant filed O.S. No.164 of 1997 in the Court of the District Munsif, Guntur, for declaration of her title and recovery of possession. The suit was decreed on 21-08-1990. However, A.S. No.124 of 1980 filed by the defendant therein, was allowed by the District Court on 26-08-1983. It was held that the executent of Ex.A-5 did not have the capacity or right to convey the property, since it was not allotted to the share of her husband. Though the suit was in respect of 40 square yards an adjudication as to the legal effect of Ex.A-5 was undertaken. Second Appeal No.194 of 84 filed by the appellant was dismissed. Thereby, the judgment in A.S. No.124 of 1980 became final. 10. Once, Ex.A-5 was found to be an invalid document, there is no way, the appellant could have resisted the present suit, particularly, when none of the coparceners or the legal representatives have pleaded otherwise. 11. Further, being the only party that was opposing the suit, it was incumbent upon the appellant to adduce oral and documentary in support her contention. She did not enter the witness box nor did she file any documents. The plea raised by her in the written statement was not at all proved as required in law. There was no alternative for the trail Court except to pass a preliminary decree. No substantial question of law arises for consideration in this Second Appeal. 12. Hence, the Second Appeal is dismissed. There shall be no order as to costs. ____________________ L. NARASIMHA REDDY, J November 14, 2011. KTL