THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.141 of 2011 April 28th 2011 Between: Kovi Doraswamy Naidu (died) per L.Rs 4 to 8 And others ... Appellants And Devapathini Chengalraya Naidu And others ...Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.141 of 2011 JUDGMENT: The appellants are the defendants. They unsuccessfully opposed the suit for partition filed by respondents 1 and 2 herein (the plaintiffs). Therefore the present second appeal is filed. For the purpose of convenience the parties are referred to herein as per their status in the suit. The following genealogy is necessary for appreciating the case of the plaintiffs and defendants. (all are sons of Venkataswamy Naidu) Devapathini Subbanaidu Venkataswamy Naidu Gurappanaidu Chengama Naidu Ramanaidu = (wife) Kuttamma Gopala Naidu Bhaskara Naidu The plaintiffs 1 and 2 set up the following case. Subbanaidu was, among others, owner of land admeasuring Acs.3.81 in S.No.149/5. Fifty years prior to filing of the suit, his four sons divided all the property except the land in S.No.149/1. For the said land, Chengama Naidu and Ramanaidu were given joint patta under the Andhra Pradesh (Andhra Area) Estates (Abolition and Conversion into Ryotwari) Act, 1948 (Estates Abolition Act). In 1962 Ramanaidu died. His wife and her minor son sold the said land to third defendant under Ex.B3 registered sale deed dated 27.5.1963. The third defendant in turn sold an extent of Acs.2.00 under Ex.B4 sale deed dated 24.3.1965 to his brothers Gopala Naidu and Bhaskara Naidu. Some time later, on 22.1.1968, Gopala Naidu sold an extent of Acs.1.00 to Nagarjuna Naidu under Ex.B5 registered sale deed dated 22.1.1968. Bhaskara Naidu also sold an extent of Ac.1.00 under Ex.B7 sale deed dated 01.12.1977 to the plaintiffs 1 and 2. Further under Ex.B8 sale deed dated 14.6.1979 the third defendant and his wife Tulasamma sold Acs.1.81 in favour of defendants 1 and 2, namely, Doraswamy Naidu and Sankara Naidu. The plaintiffs alleged that the boundaries mentioned in these sale deeds are not correct, that they are nominal documents, that the plaintiffs 1 and 2, and the third defendant, are joint owners and that they are entitled to partition of plaint schedule property admeasuring Acs.2.81 (out of total extent of Acs.3.81) in S.No.149/5. The plaintiffs prayed for partition of the said property into two portions each admeasuring Acs.1.90½, to allot the same to them and for costs of the suit. The case of the defendants 1 and 2 is that the land in S.No.145/5 was in exclusive possession and enjoyment of Ramanaidu only. The land with patta No.161 formed part of the estate of Bangarupalyam, which was taken over by the Government. After that by mistake Changama Naidu’s name was inserted in the patta. They admitted about execution of sale deeds, Exs.B3 and B4, and alleged that the third defendant was never in possession of the property. They claimed title under Ex.B8 and alleged that the first defendant dug bore well on the northern side of suit schedule land for the purpose of irrigation. They denied that these documents are nominal documents. The third defendant remained ex parte. The trial Court tried a lone issue. The plaintiffs 1 and 2 deposed as P.Ws.1 and 2 besides examining P.W.3. They marked Exs.A1 to A28. The defendants 1 and 3 gave evidence as D.Ws.1 and 2 respectively and marked as many as 17 documents. Exs.X1 to X3 were marked as Court documents. Considering the oral and documentary evidence, the trial Court held that the plaintiffs failed to prove that they are joint pattadars and dismissed the suit. The plaintiffs’ appeal was allowed by the Court of VII Additional District Judge (FTC), Chittoor. The Counsel for the appellants/defendants submits that the appreciation of evidence by the first appellate Court is perverse and that it was in error in reversing the well considered judgment of the trial Court. He would further contend that in the absence of legal heirs of Ramanaidu, the suit itself was not maintainable for misjoinder of necessary parties and the first appellate Court failed to consider Exs.X1 to X3. He would point out that the joint patta, which was allegedly given in favour of Chengama Naidu and Ramanaidu under Estates Abolition Act, was not marked and in the absence of such document, the plaintiffs could not have claimed any title to the property. There is no dispute about the relationship of the plaintiffs and the third defendant, nor is there any dispute about the ancestry of Subbanaidu. When the property was originally owned by Subbanaidu it is beyond comprehension as to how the wife and minor son of Ramanaidu could have sold the property to the third defendant. It is nobody’s case that Ramanaidu alone was given patta. It is admitted by the defendants 1 and 2 that a joint patta was given in favour of plaintiffs and Ramanaidu. If that be the case, execution of Ex.B3 in favour of the third defendant and all the subsequent sale deeds can only be treated as nominal documents. Ex.A1 is copy of fair adangal of the suit schedule property, Exs.A2 and A26 are 10(1) accounts and Exs.A3 to A24 are cist receipts. All these show the name of Chengama Naidu, the father of the plaintiffs 1 and 2. The trial Court ignored these documents observing that the entry of Chengama Naidu is improbable as the properties were divided long ago. If the properties were divided before the grant of joint patta, it has no significance because the plaintiffs’ clear case is that there was partition among the sons of Subbanaidu in respect of the entire land except the suit schedule land. This is quite probable because after advent of Estates Abolition Act unless and until a patta is granted the landholder/occupant would not get any title and the land vests in the State only. The appellate Court correctly appreciated the evidence in regard to this aspect of the matter. Further as rightly pointed out by the first appellate Court, Exs.X1 and X2 are No.2 adangals for Faslis 1382-1384. They show the name of Ramanaidu only. When 10(1) account, which is crucial document, shows the name of Chengama Naidu and when it is admitted by the defendants that joint patta was granted in favour of Ramanaidu and Chengama Naidu Exs.X1 to X3 may not carry much weight having regard to cist receipts Exs.A3 to A24. In any view of the matter, the issue is one of fact and the appellate Court considered the entire evidence and correctly recorded the findings. The possibility of another view by itself cannot be a ground for second appeal under Section 100 of the Code of Civil Procedure, 1908. The second appeal is devoid of any merit and is, accordingly, dismissed. _______________ (V.V.S.RAO, J) April , 2011 YS