THE HON’BLE MR JUSTICE R. KANTHA RAO S.A.No.948 OF 2007 DATE: 19.04.2011 BETWEEN: S.Narsing Rao and others .. Appellants And S.Satyanarayana and others .. Respondents THE HON’BLE MR JUSTICE R. KANTHA RAO S.A.No.948 OF 2007 JUDGMENT: This second appeal is filed against the decree and judgment dated 17.01.2007 passed by the Chief Judge, City Civil Court, Hyderabad in A.S.No.155 of 2006 confirming the decree and judgment dated 27.12.2005 passed by the II Senior Civil Judge, City Civil Court, Hyderabad in O.S.No.1678 of 2001. I have heard the learned counsel appearing on either side. For the sake of convenience, I would like to refer the parties herein as ‘the plaintiffs and the defendants.’ The plaintiffs and the defendants are brothers. The second defendant is the wife of the first defendant. The plaintiffs filed O.S.No.1678 of 2001 for partition of the schedule mentioned property which is a house bearing No.9-2-505, Pensionpura, Lungar House, Hyderabad. Whereas the second defendant filed O.S.No.1331 of 2002 for partition of house bearing No.9-2-505, admeasuring an extent of 164.73 sq. yards situated in Pensionpura, Lunger House, Hyderabad. The learned trial Court clubbed both the suits, conducted joint trial and recorded evidence in O.S.No.1678 of 2001. On behalf of the plaintiffs PWs.1 to 4 were examined and Exs.A.1 to A.14 were marked. DWs.1 to 3 were examined and Exs.B.1 to B.3 were marked on behalf of the defendants. It was the contention of the plaintiffs that all the four brothers i.e. plaintiffs and the first defendant jointly paid an amount of Rs.28,000/- to Mahipal Singh, who is the owner of the schedule mentioned house in O.S.No.1678 of 2001, who obtained General Power of Attorney in the name of the first defendant since he was the Karta of the joint family. But, according to them, the first defendant contrary to the understanding between the brothers that the sale deed has to be executed in favour of their wives, executed the sale deed in favour of the second defendant and therefore, the said sale deed is fraudulent and the title of the plaint schedule house cannot be conveyed to the second defendant. Merely because the family is joint, there is no presumption that the property possessed by the Hindu Joint family is also joint, the burden that the property is joint is on the party who asserts that the family is joint. In the instant case, the sale deed is in the name of the second defendant. Therefore, unless contrary is proved, it has to be presumed that that it is the self-acquired property of the second defendant. Therefore, the burden is on the plaintiffs to prove that the schedule mentioned property in O.S.No.1678 of 2001 is purchased out of the contributions made from the joint family funds by the plaintiffs and the first defendant. Both the Courts below recorded concurrent finding accepting the oral testimony of the witnesses examined on behalf of the plaintiffs. There is no documentary proof that the schedule mentioned property is purchased from out of the joint family funds. It is the case of the plaintiffs that they made contribution to the private chit and with the said amount, the consideration for the schedule mentioned property was paid. But the person who held the chit was not examined. Even Mahipal, who is the original owner of the property, is not examined by the plaintiffs to show that in fact, the consideration was paid by all the brothers, but General Power of Attorney was executed in the name of the first defendant being the Kartha of the joint family. Similarly, in O.S.No.1331 of 2002 filed by the second defendant, the plaintiffs, who are the defendants in the said suit admitted that it is a joint family property, but pleaded that there was partition by metes and bounds. On evidence both the Courts below held that they failed to prove the factum of partition of the schedule mentioned property and accordingly concluded that the second defendant, who is the plaintiff therein, is entitled for the preliminary decree of partition. Thus, the findings recorded by both the Courts below are based on evidence and reasoning and no substantial question of law arises for consideration in this second appeal. The second appeal fails and the same is dismissed. There shall be no order as to costs. __________________ R.KANTHA RAO,J Date: 19.04.2011 Kvrm THE HON’BLE MR JUSTICE R. KANTHA RAO S.A.No.948 OF 2007 DATE: 19.04.2011