THE HON’BLE MR JUSTICE L. NARASIMHA REDDY Second Appeal No.1548 of 2005 JUDGMENT: The unsuccessful plaintiff in O.S.No.344 of 1988 filed in the Court of Junior Civil Judge, Mahabubngar, is the appellant. She filed the suit for partition and separate possession of suit schedule properties and allotment of share of 1/5th within the share of 1/3rd. The facts pleaded by the appellant are that one Sri Saibanna, her grand- father had three daughters, i.e. her mother and respondents 1 and 2 and had no male children. He is said to have died intestate. According to her, though certain efforts were made by various descendants of Saibanna, no partition has taken place and that when she insisted on partition, neither the major shareholders – respondents 1 and 2, nor her brothers, respondents 3 to 6, have agreed for partition. Respondents 7 to 29 are said to be the purchasers of the plots from out of the joint family properties. The main contest to the suit was by respondents 1 and 2. According to them, there was a prior partition of the family properties and that the appellant was put in possession of her share of the property. Reference was made to various suits that were filed either by the appellant or by some of the respondents and to the result thereof. The trial Court dismissed the suit through judgment, dated 25.03.1998. Aggrieved thereby, the appellant filed A.S.No.47 of 1998 in the Court of II Additional District Judge, Mahabubnagar. The appeal was dismissed on 27.10.2004. Hence, the second appeal. Heard Sri N.Chandradhar Rao, learned counsel for the appellant, Sri Mayur Reddy, learned counsel for respondent No.13 and Sri B.Nagarjuna Reddy, learned counsel for the contesting respondents. The appellant happens to be the co-parcener, the second stage of the family. The common ancestor was one Mr. Saibanna. He had three daughters, namely respondents 1 and 2 and mother of the appellant. The mother of the appellant is no more and she left behind her, four sons, viz., respondents 3 to 6 herein and the daughter, the appellant herein. If no partition of the property as pleaded by the appellant had taken place, a preliminary decree deserves to be passed. The question, however, is as to whether there was a prior partition, as pleaded by respondents 1 and 2. The trial Court framed the following issues for its consideration: i) “Whether the plaintiff is entitled for 1/5th share in 1/3rd share in the suit lands, as prayed for? ii) Whether the present suit is hit by res judicata in view of dismissal of O.S.No.2 of 1979 on the file of this Court? iii) Whether the defendants got title to suit lands by adverse possession? iv) Whether the Court fee paid is incorrect?” On behalf of the appellant, PWs.1 to 6 were examined and Exs.A.1 to A.22 were filed. On behalf of the defendants, DW.1 was examined and no documentary evidence was filed. On dismissal of the suit, the appellant filed A.S.No.47 of 1998. The lower Appellate Court framed two points for its consideration, viz., i) “Whether the plaintiff is entitled to partition, as prayed for? ii) Whether the decree in O.S.No.2 of 1979 bars the present suit?” The appeal was dismissed. Once the relationship and genealogy is not disputed, a preliminary decree deserves to be passed, if one of the co-parceners demands or files a suit for partition. Such relief can be scuttled by pleading prior partition or by taking the plea that the items of suit schedule property are not available for partition. In the instant case, the respondents did not plead that the suit schedule properties are not ancestral in character. Their specific plea was that partition took place in the family and thereby the joint family ceased to exist. Wherever such a plea is taken, the burden is upon the person who takes such a plea to substantiate it. Strangely enough, in the instant case, the appellant herein has discharged the burden of the respondents. The husband of the appellant deposed as PW.1. In categorical terms, he stated that consequent upon withdrawal of O.S.No.2 of 1979 filed by the appellant herein for partition on an earlier occasion, respondents 1 and 2 have affected partition. He was so truthful and specific and that he stated that at the first instance certain items of property were allotted to the share of the appellant and thereafter the share was substituted with other items and that the appellant was put in possession thereof. The cause of action for the appellant, according to her, is that she has been dispossessed from those properties by various individuals. If that is so, the remedy was to institute suit for recovery of possession, if necessary, with a prayer to declare the title. Once the partition has taken place and the joint status of the family obliterated, the question of the appellant seeking partition once again, does not arise. The trial Court and the lower Appellate Court have taken the correct view of the matter and this Court is not inclined to interfere with the concurrent findings of fact. The second appeal is accordingly dismissed. It is, however, left open to the appellant to work out her remedies to claim rights vis-à-vis the properties that are said to have been allotted to her share in the earlier partition. There shall be no order as to costs. _______________________ L.NARASIMHA REDDY, J Dt:18.11.2011 GJ