HONOURABLE SRI JUSTICE L.NARASIMHA REDDY SECOND APPEAL NO: 460 of 2009 JUDGMENT: The plaintiffs in O.S.No.146 of 2004 on the file of the Court of Principal Junior Civil Judge, Rayachoty, are the appellants in the second appeal. They filed the suit for the relief of partition and separate possession of the suit schedule property. The trial Court passed a preliminary decree through its judgment dated 10/02/2006. Aggrieved thereby, defendants 1 and 2 in the suit i.e., respondents 1 and 2 herein filed A.S.No.6 of 2006 before the Court of Senior Civil Judge, Rayachoty. The lower appellate Court reversed the decree passed by the trial Court and dismissed the suit. Hence, this second appeal. Briefly stated the facts are that one Mr.Pullama Raju, (Senior) had four sons by name Narayana Raju, Chinnama Raju, Rama Raju and Venkata Raju. It is stated that Chinnama Raju and Rama Raju got themselves separated from the joint family and Narayana Raju and Venkata Raju remained joint. One (Junior) Pullama Raju is son of Narayana Raju. The appellants 1 to 4 are his sons. It is stated that Narayana Raju had through his second wife, a son by name Ganga Raju. The 6th appellant is the wife, the 5th appellant is the son and the 7th appellant is the daughter of the said Ganga Raju. The first respondent is the wife of late Venkata Raju and second respondent is their daughter. The third respondent is said to have purchased a part of the suit schedule property. It was pleaded that the suit schedule property held by Narayana Raju and Venkata Raju was sold in part (2/3rd) way back in the year 1938 and that sold out property was purchased in the name of Venkata Raju in the year 1947 for the benefit of joint family. The petitioners contended that the property is held in joint by the branches of Narayana Raju and Venkata Raju and that in spite of repeated demands, it was not partitioned. The respondents 1 and 2 filed a written statement. They pleaded that the property was never held in joint and it was the absolute property of Venkata Raju. The trial Court passed a preliminary decree and the same was reversed by the lower appellate Court. Sri L.J.Veera Reddy, learned counsel for the appellants, submits that the lower appellate Court drew inferences on several aspects and has reversed the decree passed by the trial Court. He submits that the oral and documentary evidence clearly discloses that there was no partition between Narayana Raju and his youngest brother Venkata Raju and that the suit schedule property was liable to be partitioned. Sri V.R.N.Prasanth, learned counsel for the respondents, on the other hand, submits that the appellants went on changing their stands from time to time and the case presented by them is totally inconsistent. Drawing the attention of this Court to a notice got issued on behalf of the appellants, learned counsel submits that the case present in the application was totally at variance. The suit was presented for partition and the trial Court framed seven issues and on the basis of additional pleadings, four more issues framed. They read: “1. Whether the plaintiffs are entitled for partition and separate possession of half share in the suit property? 2. Whether the schedule properties are self- acquired properties of Konduru Venkataraju father of D-2 and husband of D-1? 3. Whether the gift deed executed by Pullamaraju in favour of D-1 and D-2 is not valid? 4. Whether the suit properties are purchased by Venkata Raju for valid consideration under sale deed, dated 05\6/03/1947 from its rightful owner and binding on the plaintiffs? 5. Whether the defendants are having any exclusive right over the suit properties? 6. Whether there is no cause of action to file the suit? 7. To what relief? Additional Issues: 1. Whether defendant No.3 is the bonafide purchaser of item Nos.1 and 2 under a registered sale deed, dated 31/01/1997 from its vendors and put in possession and enjoyment? 2. Whether the suit for partition is bad without impleading the sister of P-1 to P-4 or their legal heirs? 3. Whether the court fee paid u/s.34 (2) of A.P.C.F.Act is incorrect or not? 4. To what relief? On behalf of the appellants, P.Ws.1 and 2 were examined and Exs.A-1 and A-2 were marked. On behalf of the respondents, D.Ws.1 and 2 were examined and Exs.B-1 to B-15 were marked. Almost all the issues were answered in favour of the appellants. In the appeal before it, the lower appellate Court framed three points for its consideration viz., 1. Whether the suit properties are self-acquired properties of late Konduru Venkata Raju, husband of D-1 and father of D- 2? 2. Whether the suit properties are the joint family properties of said Venkataraju and Pullama Raju, father of plaintiffs 1 to 4? 3. Whether the decree and judgment by the learned Principal Junior Civil Judge, Rayachoty are liable to be set aside? Through the judgment under appeal, it reversed the decree of the trial Court. One of the basic facts to be established by the plaintiff in a suit for partition is that the family remained joint and that the suit schedule property was held by the family in common. This is not a suit where the persons of the same generation claimed partition through the other co-sharers. The genealogy in brief has been referred to earlier. The plaintiffs are spread over two generations. While appellants 1 to 4 are the grand children of Narayana Raju, appellant No.6 is his wife and appellants 5 and 7 are his children. Respondents 1 and 2 are wife and daughter of the brother of Narayana Raju viz., Venkata Raju. The legal heirs of other two brothers of Narayana Raju were excluded from the array of parties on the ground that there was an earlier partition in the family. There is any amount of uncertainty as to the manner in which the property was held and enjoyed. The suit was preceded by a series of notices. Important among them is, Ex.B-12 got issued on behalf of the appellants. The lower appellate Court extracted the portion of the same and it reads as under: “the present suit property was fell to the share of K.Pullama Raju, father of the plaintiffs 1 to 4, in a partition with his brothers and that he had been in possession and enjoyment of the same till his death in the year 1990 and after his death the plaintiffs have been in possession and enjoyment of the same. Nobody got right in the schedule property except the plaintiffs. As the property is situated in Matli village, the plaintiffs’ father permitted Venkataraju who is father of the second defendant and husband of D-1 to help him in cultivation and that the father of the plaintiffs as legal heirs and the suit schedule property. During the lifetime of plaintiffs’ father (clients’ father) he orally gifted 1/6th share to the second defendant herein. Thus the plaintiffs are entitled to 5/6th share i.e., 1/6th share.” From this, it is evident that the suit schedule property has fallen to the share of Pullama Raju i.e., father of appellants 1 to 4 and that he is in possession and enjoyment till he died in the year 1990. It is important to note that the land is said to have fallen to his share in partition with his brothers. During his lifetime, Pullama Raju permitted Venkata Raju to be in possession of the land and that 1/6th share of that property was gifted in favour of the second respondent. On this basis, the appellants demanded delivery of possession of remaining 5/6th share. Even if every fact mentioned in Ex.B-12 is true and was not contradicted, the only relief the appellants could have prayed for is for recovery of possession of that 5/6th share of the suit schedule property duly praying for declaration of their rights. In the event of denial of the same, there was no occasion of filing of the suit for partition at all. The appellants cannot disown a notice got issued on their behalf. If the notice is taken on its face value, the contents of the plaint stand belied. In that view of the matter, no exception can be taken to the judgment of the lower appellate Court. The Second Appeal is accordingly dismissed at the stage of admission. There shall be no order as to costs. ____________________ L.NARASIMHA REDDY, J 15th June, 2010 SKM