THE HON’BLE SRI JUSTICE K.G. SHANKAR A.S.No.468 of 1992 Date: 30.11.2011 Between: Bodem Venkateswarlu, R/o. Chandrugonda Village & Mandal, Khammam District. .. Appellant/ Plaintiff AND Bodem Prakasham, @ Kamoikonda Prakasham, adopted son of late Bodem Satyanarayana, R/o. Chandraugonda Village & Mandal, Khammam District, and 21 others .. Respondents/ Defendants THE HON’BLE SRI JUSTICE K.G. SHANKAR A.S.No.468 of 1992 JUDGMENT: This is a plaintiff’s appeal. The plaintiff sought for partition of plaint schedule property into equal shares and allotment of one such share in favour of the plaintiff. He claimed that the first defendant is entitled to the remaining half of the plaint schedule property. Through the impugned judgment dated 28.10.1991 in O.S.No.91 of 1986 on the file of the Subordinate Judge, Kothagudem, the suit was dismissed. The legal representatives of the sixth defendant were not brought on record. The learned trial Judge, consequently, dismissed the suit as abated as against the sixth defendant. Assailing the decree in the suit, the sole plaintiff laid the present appeal. 2. The facts leading to the filing of the present appeal may briefly be stated at this stage. a) Bodem Gopala Sastry is the father of the plaintiff. The first defendant is the adopted son of Bodem Satyanarayana. Gopala Sastry and Satyanarayana were brothers. Satyanarayana was the elder of two. They possessed ancestral property. The plaintiff contends that both Satyanarayana and Gopala Sastry were primarily eking out their livelihood as priests (purohits). Therefore, they entered into an understanding that Satyanarayana should stay at Chandrugonda village and that Gopala Sastry should stay at nearby Annapureddypalli village. The adoptive father of the first defendant was managing the properties of the joint family, which are situate in Chandrugonda village. The joint family possessed all the seven items of the plaint schedule property. Satyanarayana was making over the share of Gopala Sastry to Gopala Sastry from out the income generated by the joint family property. b) As things stood thus, Satyanarayana, adoptive father of the first defendant died in 1969. The first defendant stepped into the shoes of his adoptive father and started managing the properties. The first defendant continued to partake the profits generated by the joint family properties till 1978. However, the first defendant became greedy. He started selling small pieces of land of the joint family properties without the consent of Gopala Sastry and after the demise of Gopala Sastry in 1982, without the consent of the plaintiff. He also did not partake the profits of the joint family properties from 1979 onwards. Consequently, disputes arose between the plaintiff and his father on the one side and the first defendant on the other side. c) On 17.09.1980, legal notices were got issued by the plaintiff and his father to the first defendant and another person (office copy of which is Ex.A.1). The first defendant countered the same, through reply dated 08.10.1980 (Ex.A.2) denying the claim of the plaintiff. d) The plaintiff attempted mediations to resolve the disputes. However, the good intention of the plaintiff to solve the problem amicably proved futile leaving no alternative to the plaintiff, but to file the present suit in 1986 by him. 3. The first defendant denied the claim. He contended through his written statement: a) Items 1 and 5 of the plaint schedule properties are not the ancestral properties. They are the self-acquired properties of Satyanarayana, adoptive father of the first defendant, so much so, the first defendant inherited those properties, through intestate succession. He further contended that items 6 and 7 of the plaint schedule properties are the self-acquired properties of his adoptive mother and that on the demise of his adoptive mother in 1966, items 6 and 7 devolved upon the first defendant, as the only hair of the adoptive mother. b) Item No.4 an inam land. The first defendant was granted patta in 1976-77 in respect of item No.4 of the plaint schedule property. The first defendant thus owns item No.4 as of his own right. c) The remaining items are items 2 and 3 of the plaint schedule property. They were partitioned by Satyanarayana and Gopala Sastry way back in 1938. In the partition, items 2 and 3 fell to the share of Gopala Sastry. There was an exchange of properties between Satyanaayana and Gopala Sastry. In the exchange, Satyanarayana took items 2 and 3 of the plaint schedule property and gave other property to Gopala Sastry. Thus none of the plaint schedule properties has been a joint family property. The plaintiff, therefore, is not entitled to partition of the plaint schedule property. 4. It may be recalled that there are as many as 23 defendants. Defendants 2 to 23 are alleged to be alienees of the first defendant in respect of various pieces of property, out of the plaint schedule property. Consequently, the plaintiff chose to array them as defendants by way of abundant caution. 5. The plaintiff examined himself as PW.1. He examined three other witnesses on his behalf. As against the evidence on the plaintiff side, the first defendant chose to examine himself as DW.1. He also examined two other witnesses in support of his claim. 6. The primary point for consideration is whether the plaint schedule properties are undivided joint family properties and are liable for partition by meats and bounds. 7. Curiously, Sri P. Murali Krishna Prasad, learned counsel for the plaintiff contended that the plaint schedule properties are situate in the scheduled area and that alienation of the properties is prohibited by the provisions of the Andhra Pradesh Scheduled Areas Land Transfer Regulation, 1959 (Regulation No.1 of 1959) (the Regulation, for short). The Act proscribes transfer of properties in the agency tracts to a non-tribal. It is the contention of the learned counsel for the plaintiff that defendants 2 to 23 are non-tribals and alienation of parts of the plaint schedule property in their favour is prohibited under the Act. 8. Smt. K. Sesharajyam, learned counsel for the first defendant, on the other hand, contended that if the plaintiff is not entitled to any share in the plaint schedule property, it is not for the plaintiff to contend that the transfer of parts of the plaint schedule property by the first defendant in favour of the other defendants by way of sale is prohibited under the Regulation and that it would be for the revenue officials to determine whether the alienations are valid or otherwise. She also pointed out that the Regulation does not prohibit a non-tribal to possess lands and that the title of the first defendant and his adoptive parents, therefore, could not be questioned. Inter alia, her claim is that when patta was issued in favour of the first defendant in respect of item No.4, these lands could not have been lands falling within the schedule area. I consider that the question whether the properties are covered by the Regulation and whether the alienations by the first defendant in favour of the defendants 2 to 23 are primarily irrelevant. I may, however, hasten to add that in the event it is considered that any part of the plaint schedule properties are ancestral property and is subject to partition, to work out the equities between the plaintiff and the defendants, the alienations by the first defendant in favour of the other defendants comes into play which in turn raises the question of the validity of the transfers in the light of the Regulation. Therefore, whether the plaint schedule properties are subject to partition or otherwise decide the question about the alienations vis-à-vis the Regulation. 9. The learned counsel for the plaintiff contended that the plaint schedule properties are ancestral properties, which are not divided and that they are liable for division. It may be recalled that the first defendant contended that none of the properties other than items 2 and 3, out of the joint family property, is the ancestral property and that items 2 and 3 were the subject matter of partition of 1938 between Satyanarayana and Gopala Sastry. The first defendant thus contended that no properties are available for partition. 10. Apart from examining the witnesses, the first defendant produced Exs.B.1 to B.8 in support of his claim. Ex.B.4 is the certified copy of faisal patti of 1969-70. Exs.B.2 and B.3 are the certified copies of pahanies for the year 1954-55 and 1967-68 respectively. The plaint schedule properties stand in the name of Satyanarayana, adoptive father of the first defendant in the pahanies. Exs.B.6 to B.8 are the land revenue receipts issued in 1979, 1979 and 1981 respectively in the name of the first defendant. The learned counsel for the plaintiff is correct in contending that the pahanies, faisal patti and land revenue receipts do not confer title upon the first defendant in respect of the plaint schedule properties. These documents are indeed supportive pieces of evidence, if the first defendant established his title to the plaint schedule properties. 11. Ex.B.1 is the land revenue passbook for the years 1969 to 1984 in the name of Satyanarayana. Ex.B.5 is a statement of Gopala Sastry regarding the family affairs of Satyanarayana and Gopala Sastry. Ex.B.1 also supports Exs.B.2 to B.4 and B.6 to B.8 in confirming the title of Satyanarayana over the plaint schedule property. Ex.B.5 recites that Gopala Sastry along with his elder brother Satyanarayana effected partition of the joint family property, that no property remained joint for partition and that the plaint schedule properties are the exclusive properties of the first defendant. It is the case of the plaintiff that the disputes between the plaintiff and the first defendant arose after 1978 when the first defendant stopped making over the share of property out of the plaint schedule property to the plaintiff. Ex.B.5 was allegedly executed on 10.03.1980. Gopala Sastry, father of the plaintiff passed away in the year 1982. Ex.B.5 should crucify the plaintiff, for plaintiff derived title from his father while Ex.B.5 statement from the father of the plaintiff himself shows that the plaint schedule property is the property of the first defendant. 12. Curiously, the first defendant did not refer to Ex.B.5 in the written statement. Even in Ex.A.2-reply to Ex.A.1 notice, the first defendant did not refer to Ex.B.5. The trial Court was perfectly justified in this background to conclude that Ex.B.5 is not proved. In the absence of reference to Ex.B.5 either in the written statement of the first defendant or in Ex.A.2 reply to the notice of the first defendant, I am afraid that the defendants have failed to prove Ex.B.5. I accordingly reject Ex.B.5. 13. If the absence of Ex.B.5, the remaining documents relied upon by the first defendant are not documents of title of the first defendant. These documents would support the title of the first defendant if the first defendant had already established his title; otherwise these documents do not establish 1938 partition propounded by the first defendant. They do not show that items 1 and 5 were self-acquired properties of Satyanarayana nor do they show that items 6 and 7 were the self-acquired properties of the wife of Satyanarayana. They also do not show that item No.4 was inam land and Government issued patta in the name of first defendant over item No.4 during 1976-77. 14. More or less, there is no documentary evidence to support the claim of the first defendant. The learned counsel for the plaintiff placed reliance upon Secretary to Govt. of India v. Indira Devi[1] in support of his contention. Referring to Sections 101 to 104 of the Indian Evidence Act, 1872, a single judge of this court observed in that case that burden of proving a fact rests on a party asserting the affirmative of the issue and not upon the party denying it. In that case, the defendants contended that the plaint schedule property was part of a GLR and that the plaintiffs had no title and possession over the same. This Court held that the burden was upon the defendants to prove the said fact and that it was not for the plaintiffs to disprove the same. It is contended by the learned counsel for the plaintiff, on the basis of this decision, that it is for the first defendant to prove that items 1 to 7 of the plaint schedule property are not the joint family properties and are not subject to partition. 15. I may point out that the first defendant should fail in establishing his positive case. His positive case is that a) items 1 and 5 are the self-acquired properties of Satyanarayana, adoptive father of the first defendant, b) items 6 and 7 are the self acquired properties of the wife of Satyanarayana, c) item No.4 was inam land and that government issued patta in favour of the first defendant in respect of item No.4 during 1976-77, d) a partition between Satyanarayana and Gopala Sastry was effected in 1938 in which items 2 & 3 fell to the share of Gopala Sastry, and e) in the exchange between Satyanarayana and Gopala Sastry, items 2 & 3 fell to the share of Satyanarayana. His documentary evidence cannot establish these contentions as the partition of 1938, the patta in respect of item No.4 and title of Satyanarayana over items 1 and 5 and the title of the wife of Satyanarayana over items 6 and 7 should all be established by individual documents, but the first defendant failed to produce any of them. Thus, the first defendant totally failed in establishing his positive case. 16. However, as rightly submitted by the learned counsel for the first defendant, it is the plaintiff who urged that the plaint schedule properties are the joint family properties, that they continued to be joint family properties and that they were not subjected to partition. It is the plaintiff who assert joint status, so much so, it is the plaintiff who shall prove his case in view of the ratio in Indiradevi. I, therefore, shall examine whether the plaintiff made out his case that items 1 to 7 of plaint schedule property are joint family properties, that they are liable for partition and that the plaintiff is entitled for the half share in the property by meats and bounds. 17. The learned counsel for the plaintiff claimed that there was no issue relating to item No.4 of the plaint schedule property and that the case, therefore, is liable to be remitted to frame an issue relating to item No.4 and issuing a finding on item No.4. First, Ex.B.5 is disbelieved and it is found that the first defendant had not adduced sufficient documentary evidence to establish his title to the plaint schedule properties, including item No.4. Secondly, Issue No.1 engulfs item No.4 also, as the issue relates to all the items of plaint schedule property. I do not agree with the contention of the learned counsel for the plaintiff that proper issues were not framed by the trial Court and that the case is liable for remittance to the trial Court for casting the issues and for reconsideration of the same. 18. Curiously, the learned counsel for the plaintiff contended that the first defendant failed to prove his adoption. I am afraid that the adoption of the first defendant was not an issue. In fact, the plaintiff described in the plaint itself that the first defendant was the adopted son of Satyanarayana. I, therefore, reject the contention of the learned counsel for the plaintiff that where the first defendant did not prove the adoption, the stand of the defendants shall not be considered. 19. The learned counsel for the plaintiff also contended that the defence of exchange of properties presupposes that the plaint schedule properties are joint family properties. It is the case of the first defendant that items 2 and 3 of the plaint schedule properties were joint family properties, that they fell to the share of the plaintiff in the partition in 1938 and that in the exchange with the adoptive father of the first defendant, items 2 and 3 of the plaint schedule property fell to the share of the adoptive father of the first defendant. It may be noticed that the plaintiff contends that items 2 and 3, along with other items are undivided joint family properties. The onus is upon the plaintiff to prove the same and not other way round. I, therefore, regret my inability to accept the contention of the learned counsel for the plaintiff that the first defendant was deemed to have accepted that item Nos.2 and 3 were the joint family properties. 20. I may now examine the case of the plaintiff. The settled legal position in respect of Joint Hindu Family is that there is a presumption in favour of jointness of the family and genuineness of the properties and that the party asserting otherwise has to establish the same. Smt. K. Sesharajaym drew my attention to the admission of the plaintiff relating to the partition in 1938. It is the case of the plaintiff that the father of the plaintiff and adoptive father of the first defendant effected partition of the some of the joint family properties in 1938 and that the plaint schedule properties were not part of the same. The plaintiff failed to produce evidence that the plaint schedule properties remained as joint family properties. It is her contention that it is the plaintiff who should establish that there was partial partition in 1938 and that there was a reunion some time thereafter and that as the plaintiff filed to establish the same, the case of the plaintiff is liable to be dismissed. 21. She also pointed out that although the adoptive father of the first defendant passed away in 1969, the father of the plaintiff did not demand for partition throughout his lifetime till his death in 1982. It may be recalled that Ex.A.1 notice was issued by the plaintiff as well as his father demanding for partition. Thus, during his lifetime, the father of the plaintiff asserted about the joint family properties and sought for partition. However, merely because the father of the plaintiff joined the plaintiff in issuing Ex.A.1 notice, it cannot be assumed that there was no partition or the plaint schedule properties continued to be part of the joint family properties. When the first defendant issued reply under Ex.A.2 contending that the plaint schedule properties are the exclusive properties of the first defendant by virtue of inheritance or otherwise, the plaintiff did not chose to issue rejoinder against the claim of the first defendant. Indeed, the notice of the plaintiff, the reply of the first defendant and the absence of rejoinder by the plaintiff would not decide the truth of the rival claims. It is the evidence that counts. 22. The learned counsel for the plaintiff produced Ex.A.3 to A.5 pahanies in respect of some of the items of the plaint schedule property from 1940-41 (1350F) till 1980-81. As in the case of the defendants, the pahanies do not establish the title of the plaintiff or his father over the plaint schedule property. I agree with the contention of the learned counsel for the first defendant that Exs.A.1 to A.5 cannot establish the case of the plaintiff in any manner. 23. Curiously, the plaintiff examined four witnesses in support of his contention. The learned trial Judge used rather harsh words in the process of appreciating the evidence of PWs.2 to 4. He called each one of them a deliberate lier. He also considered that the plaintiff himself was not a truthful witness as PW.1, where the plaintiff as PW.1, in over enthusiasm, questioned the very adoption of the first defendant by Satyanarayana. I may reiterate that the adoption of the first defendant was not a question in this case at all. 24. The father of the plaintiff was a resident of Annapureddypalli. The plaint schedule properties are situate at Chandrugonda. Perhaps, it is the reason why the father of the plaintiff gave up these lands in favour of other persons. In this context, it is pertinent to notice that the plaintiff failed to show that there was partial partition only in 1938 between his father Gopala Sastry and the adoptive father of the first defendant, Satyanarayana. A reading of the evidence of PWs.2 to 4 shows that they did not know the facts. Instances are that while the father of the plaintiff admittedly was a resident of Annapureddypalli, PW.2 deposed that the father of the plaintiff was a resident of Chandrugonda. PW.3 admitted that he did not know anything about the plaint schedule property since 26 years immediately preceding his evidence. He did not deny the partition between Satyanarayana and Gopala Sastry. He merely pleaded ignorance of knowledge. PW.4 is a relative of the plaintiff. His paternal grandmother and the paternal grandmother of the plaintiff are sisters. PW.4, thus, is a second cousin of the plaintiff. He left Chandrugonda about 18 years before evidence. He also did not know anything about the partition between the father of the plaintiff and the adoptive father of the first defendant. Thus, the oral evidence adduced by the plaintiff is not satisfactory and does not establish that the plaint schedule properties are joint and that the plaintiff is entitled to half share in the plaint schedule property. 25. It is for the plaintiff to show that the plaint schedule properties are the joint family properties, that they have not been divided and that the plaintiff is entitled to a share of the same. On all these counts, the plaintiff primarily failed in showing that the plaint schedule properties are undivided joint family properties and are ripe for partition between the plaintiff and the first defendant. The question of holding that the first defendant failed to prove the case, therefore, does not arise. The plaintiff failed in establishing the case for partition. The trial Court, therefore, was perfectly justified in holding that the suit was liable to be dismissed. I see no merits in this appeal. However, I consider it appropriate to dismiss the appeal without costs. 26. The Appeal Suit is, accordingly, dismissed. No costs. _________________ K.G. SHANKAR, J Date: 30.11.2011 Isn [1] 1998 (5) ALT 32