IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE TWENTY THIRD DAY OF AUGUST TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Second Appeal No.541 of 2010 Between: Chikkanna and another .. Appellants AND Aswathanarayana and others .. Respondents JUDGMENT: The second appeal is directed against the judgment and decree in A.S. No.5 of 2009 on the file of the Senior Civil Judge’s Court, Hindupur, dated 21-12-2009, by which the judgment and decree in O.S. No.30 of 1998 on the file of the Junior Civil Judge’s Court, Madakasira, dated 06-01-2009 dismissing the suit with costs, were confirmed. The parties are referred to herein as they are arrayed before the trial Court. The factual background for the dispute is that the deceased 1st plaintiff sought for a permanent injunction against the defendants, etc., from interfering with his possession and enjoyment of the suit schedule land of Ac.2.07 cents in S.No.124- 1, Ac.0.03 cents in S.No.123-1 and Ac.1.71 cents in S.No.123-2 of Hemavathi village, Amarapuram mandal, Madakasira Revenue Sub-division and Anantapur District. On the death of the 1st plaintiff, the 2nd plaintiff was impleaded as his legal representative. The case of the plaintiffs is that the 1st plaintiff and his brother Eeranna divided their family properties about 40 years earlier under an oral partition and were enjoying their respective properties cultivating the same and paying cist. The defendants are the successors of Eeranna and the defendants without any right caused trouble in the enjoyment of the property by the plaintiffs and hence, the suit. The defendants contended that Eeranna and the 1st plaintiff, sons of Narasappa, own the suit properties as their joint family properties and Eeranna left the defendants and also his daughters as his legal heirs. There was never any division by metes and bounds and the 1st plaintiff was only managing the joint family properties after the death of Eeranna. The defendants claimed to be in joint possession and enjoyment of the suit properties as co-owners with the revenue records also showing the same and hence, they desired the suit to fail. The trial Court framed issues about the nature of the properties, whether they were ancestral and joint family properties or were partitioned and also about any joint possession and enjoyment of the properties. During the trial into the question of entitlement of the plaintiffs to permanent injunction, the trial Court examined P.Ws.1 to 3 and D.Ws.1 and 2 and marked Exs.A.1 to A.12 and B.1 to B.5. The evidence of P.W.1, the 1st plaintiff, was eschewed before facing any cross-examination. The trial Court rendered its judgment opining that while the properties are admittedly ancestral properties, the admission of P.W.2, the 2nd plaintiff, was about all the revenue records showing the properties to be in joint possession without any sub-division. The reference to Eeranna in the cist receipt dated 22-01-1998 was also admitted and P.W.2 himself was not a party to the partition and hence, had no personal knowledge. The trial Court refused to believe Ex.A.2 adangal due to many alterations in the document and Ex.A.1 No.10(1) account was noted to be specifying the properties to be joint. The trial Court also considered the cist receipts by themselves not to confer any exclusive possession or ownership and to be uncorroborated. Mere obtaining of an agricultural loan was also considered irrelevant and P.W.3 does not even know the extent of land for which the suit was filed or their survey numbers etc. P.W.3 is also nephew of P.W.2 and the 1st defendant filed a complaint against him before the police. While refusing to act upon Exs.B.1 to B.5 cist receipts also as showing any exclusive possession of the defendants, following Renukanta Mullaiah v. Ericilla Rajamma and another[1], the trial Court concluded that however clinching the evidence for the plaintiff about his possession may be, the protective relief of perpetual injunction against a co-owner will not be granted. The suit, hence, failed before the trial Court. In the appeal, the first appellate Court rendered the impugned judgment referring to the rival contentions and evidence and observed that P.W.3, aged about 39 years by the time of his evidence, could not have spoken about any partition 40 years prior to the suit and P.W.2 was admittedly not born by the time of the alleged oral partition. The first appellate Court also noted that no other witness to the alleged oral partition was examined and there was not even a partition list in support of the alleged oral partition. The first appellate Court also referred to the failure of P.W.3 even to state the survey numbers of the land of the plaintiffs and Exs.A.11 and A.12 were refused to be relied on, as the survey numbers covered by the documents were not the survey numbers with which the plaint schedule is connected. The burden of proof was opined by the first appellate Court to be on the plaintiffs, the suit properties having been admitted to be originally ancestral and joint family properties and rejecting any probative value for the revenue records, the first appellate Court agreed with the conclusions of the trial Court based on a binding precedent of this Court and dismissed the appeal without costs. In the second appeal, the plaintiffs again reiterated Ex.A.9 bank certificate, Exs.A.11 and A.12 sale deeds and other circumstances to be probablising their claims. Substantial questions of law about the No.10(1) account and the adangal probablising the partition, absence of any evidence for the defendants, the unacceptability of Exs.B.1 to B.5, the absence of any suit by the defendants for partition of the properties, etc., were claimed to be the questions involved. While admitting this appeal on 09-03-2011, a learned Judge of this Court formulated the substantial question of law involved as whether the findings of both Courts below are perverse by misleading (or misreading ?) the cist receipts filed by the plaintiffs. Sri N. Aswartha Narayana, learned counsel for the appellants and Sri M.K. Raj Kumar, learned counsel for the respondents/defendants are heard. The question of law formulated as involved alone arises for consideration and adjudication. The cist receipts are Exs.4 to 8 and in Ex.A.4, the name of the 1st defendant was initially written and struck off under the initials styled as those of the Village Administrative Officer. In Exs.A.5 to A.8, of course, there was no reference to anybody else other than the 1st plaintiff, but the cist receipts do not refer to the survey numbers of the lands specified in the plaint schedule. While the payment of cist may afford proof of possession in the absence of any other oral or documentary evidence, on the admitted nature of these properties prior to the alleged partition, Exs.A.4 to A.8 by themselves could not have been considered as proof positive of their probablising any division of the family properties, more so when the defendants themselves claimed the 1st plaintiff to be managing the joint family properties as manager on the death of Eeranna, by which time the 1st defendant was aged only two years. No.10(1) account/Ex.A.1 mentioned both Eeranna and 1st plaintiff to be the pattedars, though an endorsement appears to have been made in the contents about the 1st plaintiff being in possession in his own right of Ac.2.82 cents only in the suit survey numbers and S.No.124/2. If there was a partition, consequent mutation ought to have taken place soon thereafter in the revenue records including No.10(1) account and therefore, either the strange endorsement of the extent of the land of the 1st plaintiff in Ex.A.1 or the specification in Ex.A.2 adangal for Faslies 1406 and 1407 about separate extents of the 1st plaintiff and the 1st defendant cannot be considered to represent the ordinary and normal manner in which such revenue records are maintained nor can they be considered to be probablising the division of properties under any partition by metes and bounds. While the alleged partition was not evidenced by any document including any partition list, Ex.A.3 sketch is self-serving rough sketch filed by the plaintiffs. Obtaining any loan from the District Co-operative Central Bank is no proof of any exclusivity of title over any land in the absence of any such details in Ex.A.10 demand notice and when the 1st plaintiff was admittedly an agriculturist owning some lands. It is true that Exs.A.11 and A.12 registered sale deeds were executed by Eeranna in respect of the lands which came to his “hissa”, while one of the boundaries was described as the hissa fayida jamin of his younger brother, the 1st plaintiff. But the survey numbers covered by Exs.A.11 and A.12 had nothing to do with the suit survey numbers and as there is the possibility of having partial division as well, one cannot lead to any positive conclusion from Exs.A.11 and A.12. While the evidence of P.W.2, the 2nd plaintiff, is self-serving like that of D.W.1, the 1st defendant, P.W.3 was also noted to be an interested witness, therefore, leading the trial Court and the first appellate Court not to accept the contention of the plaintiffs about the alleged partition and falling of the suit properties to the share of the plaintiffs. The conclusions of the trial and first appellate Courts on facts cannot, under the circumstances, be considered to be either perverse or divorced from the broad human probabilities that arise out of the oral and documentary evidence on record. The possibility of such oral and documentary evidence being susceptible to be construed in favour of the plaintiffs also does not make the second appeal involve any other substantial question of law. As the non-acceptance of the cist receipts as probablising partition cannot be construed as either misconstruction or perversity, the second appeal has to fail. However, it has to be noted that either the trial Court or the first appellate Court did not attempt to make any conclusive determination of the title over the properties with both the Courts basing their conclusions on the original nature of the properties being ancestral and joint family properties. The alleged partition set up by the plaintiffs was not positively disbelieved, but was only considered as not probablised. Therefore, the suit being one for an injunction simpliciter cannot foreclose the options of the plaintiffs, if the 2nd plaintiff so desires and is so advised to pursue any appropriate remedies to have any declaration of title and any consequential reliefs following the same in respect of the suit properties. Therefore, liberty should be kept open to the plaintiffs to pursue any remedies available to them under law in respect of having their title declared in respect of the suit schedule properties, if they are so advised and they so desire, uninfluenced by any observations in the judgments of the trial Court or first appellate Court or this Court in these proceedings. The adjudication before the trial Court and the first appellate Court or this Court should be understood as being confined to the eligibility of the plaintiffs to have a permanent injunction in their favour. Subject to the above observations, the second appeal has to fail and is dismissed without costs. _____________________ G. BHAVANI PRASAD, J Date: 23-08-2011 Svv [1] 2006(6) ALD 11