IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTY THIRD DAY OF FEBRUARY TWO THOUSAND AND TEN PRESENT: THE HON'BLE SRI JUSTICE B. SESHASAYANA REDDY SECOND APPEAL No.903 of 2009 Between: Gali Venkatamma and three others ... PETITIONERS AND Gali Chennaiah and eight others ... RESPONDENTS JUDGMENT: This Second Appeal is directed against the judgment dated 21-04-2009 passed in A.S.No.22 of 2005 on the file of the I Addl. District Judge at Nalgonda, whereby and whereunder the learned I Addl. District Judge dismissed the appeal filed by the defendants 7 to 10 in O.S.No.23 of 2002. 2. The background facts of the case in a nutshell are respondents 1 to 3 are the plaintiffs in O.S.No.23 of 2002 on the file of the Senior Civil Judge, Nalgonda. They filed the suit for partition and separate possession in the plaint schedule house bearing No.5-4-26. It is the case of the plaintiffs that Gali Chennaiah had three sons viz., Pullaiah, Ramaswami, Muthaiah and one daughter viz., Muthamma. They partitioned the properties and in the said partition the suit schedule property fell to the share of Pullaiah. Pullaiah died issueless and his wife Veeramma also died about ten (10) years ago. After the death of Veeramma the properties are devolved on plaintiffs and D-1 to D6 and issues of Sathyanarayana as per Section 15 of the Hindu Succession Act. Satyanarayana died leaving behind D-7 to D-10. Therefore, Satyanarayana’s 1/10th share devolved upon D7 to D10. After the death of Veeramma, the suit schedule house bearing No.5-4-26 came to be mutated in the name of D7. They demanded partition of the suit schedule house. Since D7 did not agree for partition, they filed the suit for declaration that the plaintiffs 1 to 3, defendants 1 to 6 are entitled to 1/10th share and defendant Nos.7 to 10 are entitled to 1/40th share each in plaint schedule house. 3. Defendant No.1 filed written statement contending that the suit schedule property exclusively belongs to G. Ramaswamy and that neither deceased G. Veeramma nor her husband G. Pullaiah got any right over the suit schedule house. 4. Defendant Nos.6 to 10 also filed written statement resisting the claim of the plaintiffs. The plea of D-6 to D-10 is that the suit is barred by limitation and the suit schedule house is exclusively belongs to them. After the death of G. Atchamma; G. Pullaiah, G. Ramaswamy, G. Muthaiah and Singam Muthamma have inherited the properties. They partitioned the properties long ago. One share was given to S. Muthamma and the said share is in possession of daughter-in- law of Singam Muthamma. Since Pullaiah had no issues, he relinquished his share in the properties. In the partition, the suit schedule house fell to the share of Ramaswamy. Since Ramaswamy looked after Pullaiah and his wife during their lifetime and after his death by his son Satyanarayana (D-1). The properties of Pullaiah came in exclusive possession and enjoyment of Ramaswamy and thereafter his son Satyanarayana. After the death of Satyanarayana/D-1, D-7 to D-10 are in possession and enjoyment of the suit schedule house. Neither the petitioners nor D-1 to D-6 got any right over the suit schedule house. The suit house is not liable for partition. Basing on the above pleadings, the trial court formulated the following issues: 1. Whether the suit properties H.No.5-4-26, 5-4-214, 5-4-215 are liable for partition or they had been already partitioned earlier ? 2. Whether Pullaiah had relinquished his share as he was issue less ? 3. To what relief ? 5. On behalf of the plaintiffs, two witnesses were examined as PWs.1 and 2 and two documents were marked as Exs.A-1 and A- 2. On behalf of the defendants, four (4) witnesses were examined as DWs.1 to 4 and 22 documents were marked as Exs.B-1 to B- 22. 6. The trial court, on considering the evidence brought on record and on hearing the counsel appearing for the parties, recorded a finding that the house property of Veeramma is liable for partition and accordingly, decreed the suit of the plaintiff in part while rejecting the claim in respect of other properties by judgment dated 04-02-2005. 7. Defendant Nos.7 to 10 filed A.S.No.22 of 2005 on the file of the I Additional District Judge, Nalgonda assailing the judgment and decree dated 04-02-2005 passed in O.S.No.23 of 2002 on the file of the Senior Civil Judge, Nalgonda. The lower appellate court, on reappraisal of the evidence brought on record, did not find any valid ground to interfere with the finding recorded by the trial court and thereby, dismissed the appeal by judgment dated 21-04-2009. Hence, the second appeal. 8. Heard the learned counsel appearing for the appellants and perused the judgment of the trial court as well as the lower appellate court. 9. The learned counsel appearing for the appellants submits that the trial court has thoroughly misread the evidence of DW-1 and thereby erred in recording a finding that the properties of Atchamma were partitioned among the three brothers namely Pullaiah, Ramaswamy and Muthaiah and therefore, the judgment of the trial court as well as the lower appellate court cannot be sustained in the eye of law. 10. The learned counsel made available the copy of the deposition of DW-1. The lower appellate court has gone through the evidence of DW-1 and made an observation that DW-1 in her chief-examination categorically stated that after the death of Achamma, the properties are devolved on Pullaiah, Ramaswamy, Muthaiah and Muthamma and that there was a partition among the said persons. The learned counsel tried to convince me that the observation of the lower appellant court is not in accordance with the evidence of DW-1. I have gone through the evidence of DW-1 Chukkala Padma who is the second appellant in this appeal. For better appreciation I may refer the entire chief-examination, which reads as hereunder: “I am the defendant No.8 herein. D7 is my mother. D9 is my younger sister. D-10 is my younger brother. The suit properties are in possession of D-7 to D-10. Prior to us my father was in possession of properties and prior to my father my paternal grand father Gali Ramaswamy was in possession of suit schedule properties. The plaintiffs, D1 to D6 were never in possession of the suit schedule properties. The suit schedule properties are the ancestral properties of my father. These properties are belongs to my mother of my paternal grand mother. The mother of my paternal grand father is Gali Achamma. The mother of my paternal grand father and not only suit scheduled properties but also the properties of plaintiff No.1 and D-1. Achamma was also the owner of house No.5-4- 211, 5-4-212, 5-4-213 situated at R.P. Road, Nalgonda. The house No.5-4-27 also belongs to Achamma. After death of Achamma, the properties are devolved on Pullaiah and Ramaswamy and Muthaiah and Muthamma. The properties were partitioned by Ramaswamy, Muthaiah, Muthamma and Pullaiah. The properties were partitioned among Gali Ramaswamy, Gali Muthaiah, Singam Muthamma, Pullaiah had not taken share of properties of Achamma as he was issueless. The partition was effected in the year 1964, it was oral partition. My grand father got the properties House No.5-4-214, 5-4-215, 5-4-26, 5-4-27 and 5-4-13. My grand father Ramaswamy sold H.No.5-4-14 during his lifetime to one Abdul Rahman, it was purchased in the name of Ameena Begum, wife of Abdul ahman. Abudl Rahman also known as Chunnumia. Chunnumia had constructed a malgi by dismantling the old house. Muthamma got houses 5-4- 211, 5-4-212, 5-4-213. Muthamma is no more alive, the properties are in possession of Singamma Mangamma. Gali Pullaiah died in the year 1956. Ramaswamy died in the year 1987. My father died in the year 1992. Gali Veeramma W/o.Pullaiah died in the year 1995. It is not true to say that the suit schedule properties fell to the share of Pullaiah. The properties fell to the share of Ramaswamy are in our possession even to the knowledge of Plaintiff and D-1. Muthaiah got H.Nos.5-4-28, 5-4-29. The houses are partitioned by sons of Muthaiah namely Plaintiff No.1 and Defendant Nof.1. The properties felt to the share of Muthaiah is larger in extent compare to the other sharers, almost double. The old corresponding numbers of the houses 5-4-26 is 5-4-18 and 5-4-19. The municipal taxes were paid by my grand father after him my father and thereafter my father my mother. The properties felt to the share of Ramaswamy including suit land were recorded in the name of my grand father, my father only thereafter my mother’s name is recorded. The Plaintiffs name and D1 name was never recorded, or the name of Pullaiah and Veeramma. I filed tax payment receipts in court. I am not going to examine my mother Venkatamma. My mother gave me tax receipts. Ex.B1 to B-22 are tax payment receipts and bills, standing in the name of my grand father, my father and my mother. The plaintiffs have no right to claim partition in respect of suit properties. Defendants 1 to 6 have no right to claim partition in respect of suit properties. The documents filed by plaintiffs are false. Plaintiffs are never in possession of joint possession of suit properties and so also D1 to D-6 and we are in possession of suit properties exclusively. I pray the court to dismiss the suit with costs.” 11. A close reading of evidence of DW-1 indicates that she admits of the division of the properties of Achamma among her three sons. There is no document to show that Pullaiah relinquished his share in favour of deceased Satyanarayana-D-1. Therefore, there is no misreading of evidence by the lower appellate court in dismissing the appeal. I do not see any substantial question of law involved in this appeal warranting admission. 12. Accordingly, the Second Appeal is dismissed at the admission stage. There shall be no order as to costs. ___________________________ B. SESHASAYANA REDDY, J February 23, 2010. PN THE HON'BLE SRI JUSTICE B.SESHASAYANA REDDY SECOND APPEAL No.903 of 2009 February 23, 2010