THE HON’BLE SRI JUSTICE A.GOPAL REDDY SECOND APPEAL No.282 of 2010 JUDGMENT: This second appeal is preferred by the first defendant, who unsuccessfully challenged the judgment and decree dated 08.11.2004 passed by the Senior Civil Judge, Pithapuram in O.S.No.1 of 2001 in A.S.No.108 of 2005 on the file of IV Additional District Judge, East Godavari, Kakinada, whereby the appeal preferred by the appellant/first defendant has been dismissed confirming the judgment of the trial Court. The first respondent/plaintiff, the appellant and one Veerraju are brothers and sons of one Raparti Appanna. Apart from the said three sons, Raparti Appanna had also four daughters, namely; Mahalakshmamma-second defendant, Nookalamma-third defendant, late Nagaratnam and Naraynamma-10th defendant. Late Nagaratnam is survived by her husband and children, who are defendants 4 to 9. The first respondent filed the suit for partition of plaint-A and B Schedule properties and for past and future profits. During the lifetime of Raparti Appanna, there was a family partition between himself and his sons under Ex.A.1-registered partition deed 10.06.1966. After the demise of Appanna, the properties allotted to his share under Ex.A.1, partition deed, are to be devolved on his three sons i.e., plaintiff, first defendant and late Veerraju. Late Veerraju executed a Will under Ex.A.2 on 06.04.1981 and died on 14.04.1981. Soon after the death of Veerraju, the immovable properties that were allotted to him in the partition deed dated 10.06.1966 were devolved on the plaintiff and the first defendant in equal shares by virtue of the Will executed by Veerraju on 06.04.1981. Subsequent to the partition, Appanna acquired landed properties by registered sale deeds dated 10.04.1957 and 10.12.1957. After the death of Veerraju, there was an understanding between the plaintiff and first defendant and in pursuance of it, the landed property of Veerraju situated at Seethanagaram was agreed to be given to the first defendant and in exchange thereof, he has agreed to give his share of land at Madhavapuram to the plaintiff and in pursuance of it, a registered exchange deed was executed on 02.09.1983 in between the plaintiff and the first defendant and his sons. Raparti Veerraju during his lifetime and subsequent to the partition dated 10.06.1966 purchased landed property, which are his self acquisitions, at Kathipudi and Kakinada and after his demise, those properties were also devolved on the plaintiff and first defendant in equal shares as per the Will of Veerraju dated 06.04.1981 and accordingly both the plaintiff and the first defendant have effected partition of the said properties among them and they have been enjoying their shares by exercising right of ownership. The plaint ‘A’ schedule property was allotted to the share of Raparti Appanna under Ex.A.1 and it is in the possession of the first defendant after the death of Raparti Appanna and it is liable to be partitioned into two equal shares between the plaintiff and first defendant. Item No.1 of plaint ‘B’ schedule property was purchased by Raparti Appanna by a sale deed dated 10.04.1957 and second item of plaint ‘B’ schedule property was also purchased by him for a sum of Rs.50/- by an oral sale. Third item of the ‘B’ schedule property was also purchased by him under a registered sale deed dated 10.12.1957 and thus item Nos.1 to 3 of the plaint schedule properties were enjoyed by Raparti Appanna as his self acquisitions during his life time and he died intestate on 02.06.1997. Hence, item Nos.1 to 3 of the ‘B’ schedule properties were devolved on the plaintiff, first defendant and defendants 2, 3 and 10, who are his daughters, and legal representatives of late Nagaratnam, who are defendants 4 to 9, into six equal shares. The first defendant filed written statement admitting the relationship of the parties as averred in the plaint including the partition among Raparti Appanna and his three sons under Ex.A.1-registered partition deed and acquisition of the properties after the partition by registered sale deeds dated 10.04.1957 and 10.12.1957 by Appanna and the execution of a Will by Veerraju bequeathing his immovable properties to his two brothers plaintiff and first defendant and acquisition of properties by Veerraju but denied the rest of the plaintiff’s case. It is stated that Appanna purchased Acs.1.37 2/3 cents of land in Survey No.316, Ac.0.11 cents in Survey No.309/1 and 1/5th share in Ac.0.28 1/3 cents from the Official Receiver, Rajahmundry, East Godavari District by a registered sale deed dated 25.10.1957 and the total extent of the same is Acs.1.55 cents which the plaintiff has not disclosed. Raparti Veerraju also purchased Acs.2.60 cents in Survey No.550/3 of Gollaprolu Mandal by a registered sale deed dated 09.07.1960 and out of it, Acs.2.17 cents was acquired by the Government and the remaining Ac.0.43 cents is available for partition as per the Will dated 06.04.1981 executed by Veerraju. The same is also suppressed by the plaintiff. Therefore, the plaintiff is in possession of Ac.0.43 cents of land acquired by Veerraju and Acs.1.55 cents of land purchased by Raparti Appanna and he is liable to pay mesne profits on it. It is further stated by the first defendant that he has no objection for partition of ‘B’ Schedule properties into six equal shares as asked in the plaint. Defendants 11, 14, 16, 18, 23, 24 and 26 filed a common written statement contending that late Raparti Veerraju during his life time alienated small bits of sites total admeasuring Ac.0.20 cents orally to them and their predecessors-in-title at the rate of Rs.5/- per square yard and delivered possession of the same in 1974; that soon after the purchase, they have constructed houses and living therein; that door numbers were also given to their houses by Gollaprolu Gram Panchayat, and that ever since the purchase of the said property, they are in exclusive possession and enjoyment of the same to the knowledge of every one including the plaintiff and first defendant. 28th defendant, who is the son of the plaintiff, filed a separate written statement contending that his grandfather Raparti Appanna had purchased Ac.0.92 cents of land in Survey No.316 of Gollaprolu Village in a Court auction on 22.05.1957 and after confirmation of the sale, the sale certificate was issued and obtained delivery of possession. Subsequent to that Raparti Appanna also purchased Ac.0.63 cents of land covered by Survey Nos.316, 308/1 and 309/1 of Gollaprolu Village in an auction conducted by the Official Receiver, Rajahmundry and the sale was confirmed on 25.10.1957 and registered sale deed was executed on 30.10.1957. Thus, Raparti Appanna was the absolute owner of Acs.1.5 cents covered by Survey Nos.316, 308/1 and 309/1 and while enjoying the same, he made an oral gift of the said land to him (28th defendant) at the time of his marriage on 27.02.1985 and delivered possession of it and ever since he is in possession and enjoyment of the same. His name was recorded in the revenue records, pattadar passbook and title deed was granted to him and he is also paying land revenue in his name. Therefore, neither the plaintiff nor defendants 1 to 10 have got any right over Ac.1.55 cents of land gifted to him by late Raparti Appanna. Hence, the claim of the first defendant for effecting partition of the said land is not valid. Based on the rival pleads taken by the parties, the trial Court framed the following issues for trial: i) Whether an extent of Acs.0.63 cents covered under the sale deed dated 26.10.1957 gifted away by Raparti Apanna under a oral gift to Raparti Appanna Babji? ii) Whether Raparti Appanna purchased balance of the land covered under sale deed dated 26.10.1957 in a court sale in E.P.No.526 of 1953 in O.S.No.193 of 1953? iii) Whether Gampala Nukayya, Gandham Krupanandam and Galinka Nageswara Rao are necessary parties to the suit? iv) Whether there are no properties available for partition covered under the sale deed dated 09.07.1960 except a pit which is said to have been gifted orally to the plaintiff? . v) Whether the properties covered under the sale deed dated 25.10.57 and 09.07.1960 are also liable to be partitioned in addition to the plaint schedule properties? vi) Whether first defendant spent expenses for “Chinna Dinam” and plaintiff contributed half of the amount for other ceremonies along with the defendant? vii) Whether the plaintiff is liable for profits on the lands mentioned in para-4 and 5 of written statement, if he claims profits on “A” schedule property? viii) Whether the plaintiff is entitled to recover Rs.52,000.00 and profits from the defendants? ix) To what relief? Issue No.1 was recasted as follows: “Whether an extent of Ac.1.55 cents was gifted away by late Raparti Appanna under oral gift to the 28th defendant and whether the said oral gift is true, valid and binding on the 1st defendant? Issue No.5 was recasted as follows: “Whether Ac.0.43 cents of land covered under sale deed dated 9-7-60 is also liable for partition? On behalf of the plaintiff, he himself got examined as P.W.1 and to support his oral evidence, he got marked Exs.A.1 to A.28. On behalf of the defendants, D.Ws.1 to 3 were examined and Exs.B.1 to B.6 were marked. The trial Court, considering the entire material available on record, on issue No.1 held that the property of Ac.1.55 cents is not liable for partition; on issue Nos.4 and 5 held that there is no land of Ac.0.43 cents liable for partition as contended by the first defendant; on issue Nos.7 and 8 held that there is no evidence whether rent is collected by the first defendant or not since the plaintiff did not examine the said tenant as witnesses and therefore, the plaintiff is not entitled to claim the rents of Rs.1500/- as claimed by him from the first defendant, and accordingly granted preliminary decree against defendants 1 to 10 by directing the first defendant for partition of plaint-A schedule property into two equal shares and to allot one such share to the plaintiff and to give vacant possession of the same. The suit was also decreed against the first defendant for partition of plaint-B schedule property into six equal and equitable shares and to allot one such share to the plaintiff and for vacant possession of the same. It was also held that the plaintiff is entitled to Rs.10,000/- towards profits over item No.1 of A-schedule property and entitled for subsequent interest at 6% per annum over the same till realization of the amount. Aggrieved by the judgment and decree, the first defendant carried the matter in appeal before the lower appellate Court, whereas the plaintiff filed cross objections. The lower appellate Court framed the following points for consideration: (a) Whether Ac.1.38 cents covered by S.No.316 and Ac.0.17 cents covered by S.No.301/1 total admeasuring Ac.1.55 cents purchased under Ex.B.4 sale deed by late Raparti Appannna is available for partition? (b) Whether Ac.0.43 cents of land covered by sale deed dt.9-7-1960 whereunder late Raparti Veerraju purchased Ac.2.60 cents is available for partition? (c) Whether the plaintiff is entitled for the profits and costs in the suit? (d) Whether the findings of the trial Court in its judgment under appeal suffers with infirmities and needs interference? (e) To what relief? The lower appellate Court, while answering point Nos. 1 and 2 against the appellant/first defendant, dismissed the appeal and partly allowed the cross objections preferred by the plaintiff relating to the suit costs. Questioning the same, appellant/first defendant preferred this second appeal. Heard the learned counsel for the appellant and gone through the entire material available on record. The finding recorded by the lower appellate Court on point No.1 was that Ac.1.55 cents of land is the self acquired property of late Appanna and during his life time, neither the plaintiff nor the first defendant can claim any share; that Appanna died on 02.06.1997 is not in dispute as per Ex.A.6 –death certificate; and that 28th defendant’s marriage took place on 27.02.1985 and the case of the plaintiff and 28th defendant is that on the date of marriage of 28th defendant, Raparti Appanna gifted Ac.1.55 cents orally to him and since then 28th defendant has been in possession of the land and his possession of the property was not on behalf of its original owner Appanna, but as of his own independent right to the knowledge of its true owner Appanna. So by the date of death of Appanna itself, 28th defendant was in possession of the said land for more than 12 years and as such he has perfected his title to the property. Further, it is noticed that issuance of pattadar pass book and title deed in favour of the 28th defendant and payment of cist by him is not in dispute. The first defendant in the written statement stated that after the death of their father Appanna, there was an oral understanding and in pursuance of it, the plaintiff took Ac.1.5 cents, which is item No.1 of the plaint ‘A’ schedule property, and as such the claim of the plaintiff and his son-28th defendant that this Ac.1.55 cents exclusively belongs to 28th defendant as he got it by an oral gift and also perfected title to it is not correct. In the cross- examination the first defendant stated that 2½ years prior to the filing of the suit, disputes arose between him and the plaintiff but he did not issue any notice to the plaintiff seeking partition of ‘A’ schedule properties under Ex.A.1 partition deed and also this Ac.1.55 cents, which is in possession and enjoyment of 28th defendant. If really there was no oral gift of the land by Appanna in favour of 28th defendant at the time of his marriage, Appanna would have raised an objection for mutating the name of 28th defendant in revenue records and issuing of pattadar passbook and title deed and payment of cist by 28th defendant since they are all happened during his life time. Therefore, the plea of the first defendant that Ac.1.55 cents of land is liable for partition which is in possession and enjoyment of 28th defendant right from 1985 and who perfected his title to it by adverse possession against the true owner Appanna is not sustainable. No doubt, here, oral gift is not valid, but once possession was delivered to 28th defendant by way of oral gift, the possession under invalid gift becomes adverse to Raparti Appanna from the date of possession, and 28th defendant continued to be in possession and the same was also recorded in revenue records. In view of the same, the finding recorded by the lower appellate Court on appreciation of evidence on point No.1 does not call for any interference. Coming to point No.2, the first defendant claims that his brother late Veerraju purchased Ac.2.60 cents of land, which includes water pit, under Ex.B.5 sale deed dated 09.07.1960. The case of the plaintiff is that out of the said extent of land, Ac.2.34 cents was acquired by the Government and Ac.0.20 cents was sold by Veerraju in the year 1974, but according to the appellant/first defendant the Government acquired only Ac.2.17 cents and the remaining Ac.0.43 cents is available for partition. Ex.A.15 is the notice issued by the plaintiff and Ex.A.16 by late Veerraju. In Ex.A.16, notice issued under Sections 9(1) and 10 of the Land Acquisition Act, 1894, Veerraju has categorically stated that previously he was the owner of Ac.2.60 cents in S.No.550 and out of it, he disposed of small extents in favour of 11 persons named therein at the rate of Rs.5/- per square yard and the purchasers are in possession and enjoyment of it. Therefore, he requested the Government to pay him the compensation at the rate of not less than Rs.5/- per square yard. Ex.A.17 notice got issued by the plaintiff and Veerraju discloses that Ac.0.75 cents and Ac.2.34 cents of land of Ramayya and Veerraju was acquired by the Government. Therefore, Exs.A.16 and A.17 clearly prove that Veerraju himself sold away about 868 square yards of site during his lifetime and from out of total extent of Ac.2.60 cents, the Government acquired Ac.2.34 cents. Hence, the lower appellant Court rightly held that the plea of the first defendant that Ac.0.43 cents of land is also available for partition is not sustainable. In view of the concurrent findings arrived at by the both the Courts below, no question of law, much less substantial question of law, arise for consideration in this Second Appeal. The Second Appeal is accordingly dismissed. There shall be no order as to costs. _________________ A. GOPAL REDDY, J Date: 28.04.2010 va