THE HONOURABLE SRI JUSTICE GODA RAGHURAM SECOND APPEAL NO.628 OF 2010 29-07-2010 Between: Kukka Mallaiah ..Appellant Vs. Kukka Chinna Mallaiah …Respondent. THE HONOURABLE SRI JUSTICE GODA RAGHURAM SECOND APPEAL NO.628 OF 2010 ORAL JUDGMENT The plaintiff is the appellant in this second appeal. He filed O.S.No.264 of 1999 for a permanent injunction claiming the suit schedule properties to be the self-acquired properties. The appellant/plaintiff and the respondent/ defendant are natural brothers. The respondent being the younger brother. There is a second brother by name Malleswaraiah. According to the defendant, he was adopted by Kukka Avulakka wife of Beeraiah, who was the brother of the plaintiff’s father on 02-06-1967 and he used to reside in her house. The plaintiff claimed to have purchased item No.1 of the suit schedule property under a registered sale deed in June 1978 from Sridhara Kambalapalli Rama Sarma and to be enjoying the same since the date of purchase. Of this, an extent of Ac.0.50 cents was given to the other brother Malleswaraiah and the plaintiff asserted possession and enjoyment of the remaining extent of Ac.0.98 cents. The plaintiff also claimed to have purchased item No.2 of the suit schedule property, an extent of Ac.1.00 from one Rama Sarma in July 1966 under a registered sale deed and to being in possession and enjoyment of the same. The plaintiff also claimed to have purchased item No.3 of the suit schedule property in June 1982 from one Andrathula Sri Rangam and to be in possession and enjoyment of the same since then. Further the plaintiff’s father had Ac.0.37 1/3 cents i.e., part of item 3 of the plaint schedule and he purchased another Ac.0.37 1/3 cents from one Kukka Chinna Beeraiah’s wife and son, the heirs of the plaintiff’s father, on 03- 07-1972 under a registered sale deed for Rs.2,000/- and thus became the owner of Ac.1.39 2/3 cents approximating Ac.1.40 cents in Sy.No.59/2. The plaintiff further claimed to have encroached Government land specified as the 4th item in the plaint schedule about 40 years ago and to be in continuous possession thereof and to have obtained a patta in 1960. The plaintiff also claimed that he and his brother Malleswaraiah partitioned the property on 13-08-1990. According to the plaintiff, his wife purchased a vacant site and allowed the plaintiff, defendant and other brother Malleswaraiah to have a barn in some part of her site. Later she wanted the barn to be removed and asked all the three brothers including her husband to vacate the site and handover vacant possession. On account of this, the defendant bore animus and proclaimed that he would claim share in the suit schedule properties and apprehending dispossession the suit was filed to restrain the defendant from interfering with his possession and enjoyment of the suit schedule properties. The defendant denied the plaintiff claim to being the absolute owner of the plaint schedule property and that all the properties are joint family properties. According to the defendant, the plaintiff and Malleswaraiah are natural brothers living together up to 13-08- 1990 and thereafter the plaintiff, defendant and Malleswaraiah partitioned the joint family properties and are enjoying the same independently. The plaintiff being the eldest brother of the family used to maintain the joint family affairs. The other brother Malleswaraiah is also employed and working at a different place. The defendant being uneducated is looking after the lands and is cultivating the same. The plaintiff as the elder brother was also managing the family affairs even after partition. Being the manager of the joint family in abuse of the fiduciary capacity, the plaintiff obtained registered deeds of certain properties in the name of himself and his wife. The defendant denied that he was given in adoption to Avulakka on 02-06-1967. It is the further claim of the defendant that since the plaintiff and the other brother Malleswaraiah were employed elsewhere, the defendant was looking after the welfare of Avulakka and her husband as they were related. Out of love and affection, Avulakka executed the registered sale deed on 02-06-1967 bequeathing her entire properties to the defendant. He accepted the gift and took possession of the same. As there were debts, the brothers agreed to repay the debt by contributing Rs.40,000/- each and thereafter the other brother Malleswaraiah demanded execution of registered partition deed pursuant to a settlement before the elders. Consequently, the properties were divided into three equal shares and 1/3rd share allotted to each of the brothers. The defendant could not obtain registration of the partition deed on account of the lack of funds. As per the partition deed; in item 1 of the plaint schedule the plaintiff got Ac.0.48 cents and the defendant got Ac.0.50 cents and the brother Malleswaraiah got Ac.0.50 cents; in item 2 the plaintiff was allotted Ac.0.50 cents, the defendant the other Ac.0.50 cents. The plaintiff also got Ac.0.50 cents in Sy.No.59/2 which is item 3 of the plaint schedule and herein the defendant got Ac.0.60 cents on the southern side. In respect of item 4 of the plaint schedule, this is claimed to be the self- acquired property of the defendant and he obtained patta on 24-06- 1979. The plaintiff has no right over this land the defendant is cultivating the land even before obtaining the patta, from 1970 onwards. The original patta is in the hands of the plaintiff who was managing the properties and he is withholding the original patta. The defendant, in substance denied any attempts to dispossess the plaintiff from the suit schedule property and also denied the title of the plaintiff to all the suit schedule properties. The plaintiff however did not take steps to amend the suit or to seek a declaration of title but proceeded with the suit filed for only permanent injunction. The trial court found prima facie title infavour of the plaintiff as also possession and enjoyment of the suit schedule property as on the date of filing of the suit and therefore decreed the suit and granted permanent injunction as sought. The defendant preferred appeal, which was allowed by the judgment and decree dated 19-03-2010 in A.S.No.236 of 2007. The lower appellate court independently examined the oral and documentary evidence on record and came to the conclusion that the plaintiff failed to establish prima facie title and possession in respect of extents mentioned as items 1 to 5 in the plaint schedule but could establish prima facie title as well as possession only in respect of a portion mentioned in “A” schedule of Ex.B-1 partition deed and not in respect of the other extents. The lower appellate court accordingly set aside the judgment and decree of the tiral court and modified it by confining the grant of permanent injunction to that portion of “A” schedule property as reflected in Ex.B-1 partition deed and rejected the plaintiff’s claim in respect of the other suit schedule properties. No question of law let alone a substantial question of law arises for consideration in this Second Appeal. There are no merits. The Second Appeal is accordingly dismissed at the stage of admission. No order as to costs. ________________ GODA RAGHURAM,J 29th JULY 2010 TSNR