THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL Nos.404 and 410 of 2011 Dated:07.12.2011 Between: Chode Venu Gopal Krishna Murthy …Appellant and Chode Satyanarayana Murthy. …Respondent THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL Nos.404 and 410 of 2011 COMMON JUDGMENT: These two Second Appeals under Section 100 of the Code of Civil Procedure, 1908, arise out of a common judgment dated 20.01.2009 of the Court of the Senior Civil Judge, Ramachandrapuram, in A.S.Nos.61 and 67 of 2003. By the said judgment the ﬁrst appellate Court reversed the common judgment and decrees dated 06.09.2003 in O.S.Nos.621 of 2002 and 346 of 2002. S.A.No.404 of 2011 is against A.S.No.67 of 2003, which is against O.S.No.346 of 2002 and S.A.No.410 of 2011 is against A.S.No.61 of 2003, which is against O.S.No.621 of 2002. The dispute is between the father Chode Satyanarayana Murthy and his son Chode Venu Gopala Krishna Murthy. The father ﬁrst instituted a suit, being O.S.No.346 of 2002 (injunction suit) on 02.07.2002 for permanent injunction restraining the son from interfering with peaceful possession and enjoyment of suit schedule property items I to IV totally admeasuring Ac.1.02 cents situated at Yendagandi Village of K.Gangavaram Mandal in East Godavari District. Three months thereafter the son instituted a suit, being O.S.No.621 of 2002 (declaration suit), for declaration of title and recovery of possession after evicting father from the land admeasuring Ac.0.45 cents out of Ac.0.90 cents in R.S.No.41/3 of the same Village. The trial Court dismissed the injunction suit on 06.09.2003 while decreeing the declaration suit in favour of the son. As noticed supra, the ﬁrst appellate Court reversed decreeing the father’s suit and dismissing the son’s suit. The brief background facts may be noticed as follows. Chode Satyanarayana Murthy is the son of one Chode Narayana Murthy. There was a partition among the three sons of Narayana Murthy under a partition deed, dated 12.11.1961. In the said partition, an extent of Acs.2.70 cents of land was allotted to Narayana Murthy and his wife giving vested remainder equally to Satyanarayana Murthy and his two brothers i.e., Ac.0.90 cents each. After death of Narayana Murthy, though the mother was alive, the father and son orally partitioned the property between them. This included the share allotted to the father by the family as well as the property purchased by him. In the injunction suit, the father alleged that after demise of his mother in September 2002, he obtained pattadar pass books and title deeds for the suit schedule property, but the defendant highhandedly claimed right over the land in R.S.No.41/3. In the declaration suit, the son while pleading that item IV of the plaint schedule in O.S.No.346 of 2002 having been acquired by his father after death of his grandmother, he is entitled to the said property even during the lifetime of the father. He pleaded custom in this behalf. The issues for trial were settled and evidence was recorded in the declaration suit. The son produced P.Ws.1 and 2 and marked Exs.A1 and A2. The father examined two witnesses, but did not mark any documents. On considering the evidence, the trial Court came to the conclusion that even though the father got item IV of the plaint schedule property from his ancestors, son cannot be denied the right in the said property even during his lifetime. In coming to the conclusion, the trial Court relied on the admitted fact that even during the lifetime of the grandmother, father and son divided the property equally. Before the appellate Court the issue was whether plaint schedule property in the declaration suit i.e., Ac.0.45 cents in R.S.No.41/3 was subjected to oral partition and was allotted to the son as alleged by him. After considering the oral and documentary evidence, the first appellate Court recorded the findings as follows. Further it may be noted that under Ex.A1 partition deed the appellant-father got Acs.3.75 cents as admitted by P.W.1 also. The P.W.1 in his cross-examination stated that he got Acs.2.06 cents of land in Kurmapuram Village for his share in the oral partition and the said oral partition took place in the year 1988. He stated in the cross-examination that he got Acs.0.95 cents of land covered by Ex.A1 and Acs.1.65 cents purchased by his father. He also admitted that his sister was given Acs.3.00 of land in which Acs.1.25 cents was covered by Ex.A1. If that is so, his sister was given Ac.0.95 cents of land property covered by Ex.A1 which all comes to Acs.2.20 cents, then there remained Acs.1.55 cents only the property covered by Ex.A1 partition deed for the father appellant. The P.W.1 admitted that his father is now having only Acs.0.62 cents of land. Thus if the appellant/father had only Acs.0.62 cents of land, and if it is true that the disputed Acs.0.90 cents of land vested remainder which the father would get, then the appellant/father would be having in his possession only Acs.1.52 cents. This is beyond the extent that remained including this Acs.0.90 cents of land now in dispute in the entire Acs.3.75 cents of land that came to the share of the father/appellant herein under Ex.A1. Thus it would be nothing but in equal partition between the father and son as the son got Acs.2.60 cents and the father/appellant got only Acs.1.52 cents which is not accepted unless the son pleaded that his father is having great love and aﬀection towards him and hence gave more extent of land by keeping lesser extent for him. No reason of whatsoever is given by the son for such inequal partition. Counsel for the appellant placing reliance on Mirza Raja Pushpavathi Vijayaram Gajapathi Raj Manne Sultan Bahadur v Sri Pushavathi Visweswar Gajapathiraj Rajkumar of Vizianagaram[1] vehemently contends that there is a custom in the family, which permits partition of ancestral property even during the lifetime of the immediate successor to the ancestral property. In the decision cited it was held that in the matter of proof of family custom, the evidence of conduct which proves that the parties wanted to continue old custom is relevant than technicalities. This aspect of the matter was not properly projected either before the trial Court as well as the appellate Court, nor is there any material to that eﬀect. On considering the oral and documentary evidence, the ﬁrst appellate Court clearly recorded a ﬁnding that by reason of Ex.A1, the father succeeded to the 1/3rd share in the vested remainder of Acs.2.70 cents which was allotted to Narayana Murthy and his wife and the said property was not partitioned between father and son. Further, when declaration suit was ﬁled based on the partition, unless there are admissions, mere allegation of oral partition of an item of property cannot lead to any inference. On probabilities, the case set up by the son in the declaration suit was certainly not acceptable. In that view of the matter, the ﬁndings recorded by the ﬁrst appellate Court are questions of fact and a question of law does not arise. In the result, for the above brief reasons, the Second Appeals fail, and are accordingly dismissed. There shall be no order as to costs. _______________ (V.V.S.RAO, J) 07.12.2011 vs [1] AIR 1964 SC 118